Sunshine Coast Regional Council v MC Property Investments Pty Ltd (No 3)

[2012] QPEC 12

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Sunshine Coast Regional Council v  MC Property Investments Pty Ltd (No 3) [2012] QPEC 12

PARTIES:

SUNSHINE COAST REGIONAL COUNCIL             (Applicant)

AND

MC PROPERTY INVESTMENTS PTY LTD         (Respondent)

FILE NOS:

102/2011

DIVISION:

Planning and Environment Court of Queensland, Maroochydore

PROCEEDING:

Application for contempt of court

ORIGINATING COURT:

Maroochydore Planning and Environment Court

DELIVERED ON:

1 March 2012  (ex tempore)

DELIVERED AT:

Maroochydore

HEARING DATE:

1 March 2012

JUDGE:

J.M. Robertson DCJ

ORDER:

1. The order of this Court dated 13 October 2011 be varied by deleting “within 28 days of this order” in paragraph 2 and substituting “by payments in accordance with the deed entered into between the parties dated 1 March 2011 and annexed to this order”.

2. MC Property Investments Pty Ltd is fined the sum of $1000.00 for contempt of Court payable to the Department of Justice and Attorney General in respect of the contempt specified in the Council’s application filed 20 December 2011, such sum to be paid on or before the 1 May 2012, in default the company will appear without further notice to it at 9:30am on the 2 May 2012 before myself to show cause why it should not be dealt with for non-payment of the fine.

CATCHWORDS:

DEVELOPMENT CONDITIONS: declaration made and enforcement order for payment of infrastructure contributions-where respondent failed to pay

CONTEMPT: where under Integrated Planning Act 1997 Council could not enforce payment as a “money order”- where respondent admitted that its failure to comply with order constituted contempt

PUNISHMENT: where respondent had purged its contempt by entering into Deed of Agreement with Council and admitted contempt

Legislation:

Penalties and Sentences Act 1992

Sustainable Planning Act 2009

Uniform Civil Procedures Rules 1999

Cases Considered:

Bakir v Doueihi and Others [2002] QSC 19

Booth v Yardley [2008] QPEC 100

Lade and Black [2006] 2 QR 531

COUNSEL:

Mr A. Sinclair for the applicant

Mr R. Christoforou as legal practitioner for the respondent

SOLICITORS:

Heiner & Doyle solicitors for the applicant

[1]This matter involves an application under section 439 of the Sustainable Planning Act 2009 (the “SPA”), and rule 926 of the Uniform Civil Procedures Rules 1999, for order that the respondent company, MC Property Investments Pty Ltd, be punished for contempt of the Court in that it has contravened an order of the Court.

[2]After a contested hearing on the 13 October 2011, for reasons set out in my judgment, MC Property Investments Pty Ltd and Sunshine Coast Regional Council (No 2) [2011] QPEC 123, I made a number of orders:

A declaration that the company has committed and continues to commit development offences pursuant to section 580 of the SPA by contravening conditions 5, 6 and 7 of a development approval MCU 05/0169 relating to the company's property at 7172 Bruce Highway, Forest Glen and;
an enforcement order that the company pay to the applicant Council the amount of $71,959.65, being the monetary contributions required pursuant to the conditions, which were infrastructure contribution conditions, within 28 days of the order.

[3]The 28 days expired on the 10 November 2011. The company has applied subsequent to the application for contempt, for orders that the enforcement order that I made that day, be varied as is permissible under section 606 (3) of the SPA, and that application has been successfully compromised by a Deed of Agreement being entered into with Council which will annexed to the order that I make today.

[4]It follows that the Council's application relates to a contravention as from the 10 November 2011 until today's date.  In relation to both applications Mr Constantinides, who is the sole director and shareholder of the company, filed an affidavit in relation to both applications on the 23 February 2012.

[5]Annexed to his affidavit and marked "A" is a course of email correspondence between himself and his solicitor Mr Christoforou, which includes a copy of a letter under Mr Christoforou's letterhead dated the 4 November 2011, to Mr Heiner, said to be by email only.

[6]Mr Heiner has sworn in an affidavit, which has not been challenged, that he never received that letter, and a number of explanations have been given, and it's not necessary for me to resolve that.  The letter was in these terms: 

"I am in receipt of your letter dated the 2 November 2011, and the enclosed order. Mr Constantinides instructs that MC Property Investments Pty Ltd is not in a position where it can pay that sum of money by the date stipulated.  Litigation during the last three years or so, together with the crippling effect the prosecution has had on the income from the Forest Glen property, has resulted in the company being unable at present to borrow further against the property.  (You would be aware of the large number of vacancies on the site when Council and Mr Schomburgk inspected the property recently).
Mr Constantinides has requested that the company be given 12 months to pay.
Can you please obtain your client's instructions and advise me accordingly?"

[7]It is accepted by the company, through Mr Christoforou, that that letter was never received by Mr Heiner (Council’s solicitor), but it is clear from the material that Mr Constantinides gave explicit instructions to Mr Christoforou to send it.

[8]That letter had not been received and there had been no contact by the company as far as Council was concerned after the orders had been made.  These proceedings were commenced by the filing of the application and supporting affidavits by Mr Heiner on the 20 December 2011.

[9]Without going into any detail, Mr Constantinides' affidavit refers to him travelling overseas in late December 2011, and not returning to Australia until the end of January 2012, which was for reasons associated with private litigation, and that he did not become aware of the proceedings until his return.

[10]He swears in paragraph 19 of his affidavit that he terminated Mr Christoforou's services in relation to a number of matters that he was working on shortly after the Council withdrew various charges of development offences relating to the property against him on the 23 November 2011.

[11]The application was also served on Mr Christoforou, but he apparently was in Adelaide over the Christmas period and I accept that there was a breakdown of communication, and, for those reasons, the company did not become aware of the application for contempt until the end of January 2012.

[12]By the time the matter came on for hearing on the 10 February 2012, Mr Constantinides was appearing for himself.  Mr Christoforou had been retained again, but was away for personal reasons of which Mr Heiner was aware. 

[13]The record of our conversation on that day will show that I indicated to Mr Constantinides that it was a serious application, and he seemed to appreciate that.  I also pointed out to him that there was no evidence of the company's financial position on file.

[14]I am prepared to accept that after I gave judgment on the 13 October 2011 Mr Christoforou did ask for time to pay, but in the absence of any information about the company's inability to pay or any hardship, I made the order that the money be paid within 28 days.

[15]Mr Constantinides has annexed to his affidavit a profit and loss statement for the first half of the 2012 financial year which shows that the company is operating at a loss.  Unfortunately, there is no balance sheet, and the company or the trust of which it is trustee, clearly owns a number of properties, but there are clearly quite significant interest payments payable by the company in respect of loans that it has with unnamed financiers.

[16]In effect, the deed of agreement entered into between the Council and the company constitutes a purging of the contempt.  I should say that Mr Christoforou, on behalf of the company, has accepted that the company has committed contempt of Court by failing to comply with the order.  His submissions have been primarily directed towards the question of penalty.

[17]In Lade and Black [2006] 2 QR 531 at 541-543, paragraphs 24, 26 and 27, Jerrard JA said:

"…establishing contempt of (an order) is a matter of attitude or state of mind, and always has been. …Contempt is established by proof of a deliberate act or omission which breaches an order or undertaking.  It is no defence that the party deliberately doing the act honestly believes, or was wrongly advised, that it would not be in breach of the order, if the act was deliberately done.  It is no defence if a party wrongly believes that the party's inadequate steps are reasonable ones, if there is a deliberate choice made not to do more.  The proposition that no particular intent is necessary to establish contempt is not the same as the statement that there can be a contempt without a deliberate act or omission". 

[18]His Honour then quoted, with approval, from a judgment of Atkinson J, in Bakir v Doueihi and Others [2002] QSC 19 at para [132]

"The breach of an order will not constitute contempt unless it is wilful and not casual, accidental or unintentional".

[19]By the concession of Mr Christoforou made on behalf of the company and with the company's instructions, the contempt is made out by the deliberate non-compliance with the order having been served with it and once the company, through Mr Constantinides, became aware of it.

[20]I formally find the company guilty of contempt of court.  There is no argument that the Council had no alternative but to take contempt proceedings in an effort to enforce the order that I made on the 13 October 2011.  It is accepted that the infrastructure fees are a condition of the development approval and not a common law debt.

[21]I now turn to the issue of penalty. Rule 930 of the Uniform Civil Procedure Rules 1999 permits the Court to punish contempt by making an order that may be made under the Penalties and Sentences Act 1992.

[22]At the time that Mr Sinclair filed his very helpful and comprehensive submission on the 10 February 2012, the company had taken no steps to purge the contempt, and I read down his submissions from page 8 to 11 accordingly.

[23]As he notes in paragraph 13 of the submission, from the Council's point of view, the purging of the contempt is the main issue and that any order that the Court makes at this stage i.e. on the 10  February 2012, should only be enough to ensure compliance with its order of the 13 October 2011.

[24]I take into account the financial circumstances of the company to the extent to which I can from the limited financial information annexed to Mr Constantinides' affidavit.  I take into account that the contempt has now been purged, and I accept that, at this stage, Mr Constantinides is contrite, and I also accept that he has not attempted, in any way, to not appear or to fail to comply with the order other than in the manner in which I've indicated.

[25]Mr Sinclair referred me to the case of Booth v Yardley [2008] QPEC 100 in which his Honour Judge Wilson SC, as his Honour then was, imposed a fine of $5,000. Clearly, fines for contempt can greatly exceed that amount, and it is relevant that there has been some commercial benefit to the company by not obeying the Court order over the period since it was made.

[26]However in view in light of the plea of guilty, as it were, the contrition and remorse now expressed by Mr Constantinides on behalf of the company, and the purging of the contempt, the appropriate order here is;

[1]the order dated 13 October 2011 be varied by deleting “within 28 days of this order” in paragraph 2 and substituting “by payments in accordance with the deed entered into between the parties dated 1 March 2011 and annexed to this order”.

[2]MC Property Investments Pty Ltd is fined the sum of $1000.00 for contempt of Court payable to the Department of Justice and Attorney General in respect of the contempt specified in the Council’s application filed 20 December 2011, such sum to be paid on or before the 1 May 2012, in default the company will appear without further notice to it at 9:30am on the 2 May 2012 before myself to show cause why it should not be dealt with for non-payment of the fine.