Sutherland Shire Council v Perdikaris

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Land and Environment Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Sutherland Shire Council v Perdikaris [2020] NSWLEC 111
Hearing dates: 28 July 2020
Date of orders: 28 July 2020
Decision date: 28 July 2020
Jurisdiction:Class 4
Before: Preston CJ
Decision:

The Court orders:

(1)   Mr Vasilios Perdikaris is fined the sum of $10,000 for his contempt in failing to comply with the Court’s order (2) made on 16 October 2019.

(2)   The punishment in order 1 is suspended upon the condition that Mr Perdikaris demolish the freestanding garage and concrete slab upon which it stands at 1 Penmon Close, Menai by 27 October 2020.

(3)   Sutherland Shire Council is directed to demolish the freestanding garage and the concrete slab upon which it stands at 1 Penmon Close, Menai on the conditions that:

(a)   Sutherland Shire Council not carry out the demolition of the garage and concrete slab until after 27 October 2020 and only if Mr Perdikaris has not by that date completed the demolition of the garage and concrete slab; and

(b)   Sutherland Shire Council give 14 days’ written notice to Mr and Mrs Perdikaris of its intention to carry out demolition of the garage and concrete slab.

(4)   Mr Perdikaris pay Sutherland Shire Council’s costs incurred pursuant to the direction in order 3 to demolish the garage and concrete slab.

(5)   Mr Perdikaris pay Sutherland Shire Council’s costs of the notice of motion on an indemnity basis.

(6)   Sutherland Shire Council serve on Mr and Mrs Perdikaris a copy of the sealed orders of the Court made on 28 July 2020.

Catchwords:

CIVIL ENFORCEMENT – contempt – court order to demolish illegal garage and concrete slab – failure to comply – contempt proven – contempt wilful – ongoing harm to amenity of area – punishment of fine – punishment suspended if garage and concrete slab demolished in three months – order for substituted performance – council directed to demolish garage and concrete slab if contemnor fails to do so – indemnity costs

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Environmental Planning and Assessment Act 1979

Fines Act 1996

Land and Environment Court Rules 2007

Supreme Court Rules 1970

Uniform Civil Procedure Rules 2005 r 40.7

Cases Cited:

Attorney-General v John Fairfax & Sons Ltd [1980] 1 NSWLR 362

Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483

Bell v Stewart (1920) 28 CLR 419

Blacktown City Council v Pearce [2013] NSWLEC 175

Director-General Department of Fair Trading v Yang (2002) 132 A Crim R 438; [2002] NSWSC 754

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118

Pittwater Council v Martoriati [2013] NSWLEC 84

Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64

Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309

Ronowska v Kus (No 2) [2012] NSWSC 817

Sutherland Shire Council v Perdikaris [2019] NSWLEC 149

Waverley Council v Tovir Investments…

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Details
Case
[2020] NSWLEC 111
Decision Date

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Sutherland Shire Council brought a case against Vasilios Perdikaris regarding a dispute over the demolition of a freestanding garage. The council had issued an order for the demolition of the garage, which Mr Perdikaris failed to comply with, leading to the council's application for contempt proceedings. The primary legal issues before the court were whether Mr Perdikaris's failure to comply with the court's order constituted contempt of court and, if so, what the appropriate remedy should be.

The court determined that Mr Perdikaris's non-compliance with the order constituted contempt. His failure to demolish the garage despite having the means to do so and the passage of time without any justifiable reason demonstrated a deliberate disregard for the court's authority. The court noted that the remedy of imprisonment was not appropriate given Mr Perdikaris's age and health but considered a financial penalty and a conditional demolition order to be suitable. The court ordered a fine of $10,000, which was suspended on the condition that Mr Perdikaris demolished the garage by a specified date. Additionally, the court directed the council to carry out the demolition if Mr Perdikaris failed to do so, provided they gave appropriate notice.

The court's decision balanced the need to uphold the rule of law with the practicalities of enforcing the demolition order. By imposing a financial penalty and setting a deadline for demolition, the court aimed to ensure compliance while also considering Mr Perdikaris's ability to meet the order. The orders also included provisions for costs, ensuring that the council could recover its expenses related to the enforcement of the demolition order.

Orders

Orders of the court

The Court orders:

(1) Mr Vasilios Perdikaris is fined the sum of $10,000 for his contempt in failing to comply with the Court’s order (2) made on 16 October 2019.

(2) The punishment in order 1 is suspended upon the condition that Mr Perdikaris demolish the freestanding garage and concrete slab upon which it stands at 1 Penmon Close, Menai by 27 October 2020.

(3) Sutherland Shire Council is directed to demolish the freestanding garage and the concrete slab upon which it stands at 1 Penmon Close, Menai on the conditions that:

(a) Sutherland Shire Council not carry out the demolition of the garage and concrete slab until after 27 October 2020 and only if Mr Perdikaris has not by that date completed the demolition of the garage and concrete slab; and

(b) Sutherland Shire Council give 14 days’ written notice to Mr and Mrs Perdikaris of its intention to carry out demolition of the garage and concrete slab.

(4) Mr Perdikaris pay Sutherland Shire Council’s costs incurred pursuant to the direction in order 3 to demolish the garage and concrete slab.

(5) Mr Perdikaris pay Sutherland Shire Council’s costs of the notice of motion on an indemnity basis.

(6) Sutherland Shire Council serve on Mr and Mrs Perdikaris a copy of the sealed orders of the Court made on 28 July 2020.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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