Sydney City Council v Li (No 2)
[2012] NSWLEC 123
•26 April 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Sydney City Council v Li (No 2) [2012] NSWLEC 123 Hearing dates: 26 April 2012 Decision date: 26 April 2012 Jurisdiction: Class 4 Before: Preston CJ Decision: Orders as set out at [40]
Catchwords: CONTEMPT - court orders to carry out outstanding works in a fire safety order by specified date - works not carried out by that date - contempt of court by failure to comply with court orders - modified fire safety order issued requiring alternative works by new date - alternative works carried out by new date - appropriate punishment for contempt is finding of guilt - costs of contempt proceedings - contemnors to pay council's costs Legislation Cited: Uniform Civil Procedure Rules 2005 Pt 36 r 36.15(2) Cases Cited: Sydney City Council v Li [2011] NSWLEC 165 Category: Consequential orders Parties: Sydney City Council (Applicant)
Mr Carlos Alberto Li (First Respondent)
Mrs Yi Hong Chen Li (Second Respondent)Representation: Mr A Hawkes (Solicitor) (Applicant)
No appearance for Respondents
Sydney City Council, Legal Department (Applicant)
File Number(s): 40312 of 2011
Judgment
Contempt proceedings proceed in the absence of the contemnors
Mr and Mrs Li are charged with contempt of court for failing to comply with the orders I made, on 24 August 2011, that they undertake and complete within 16 weeks of the court orders certain outstanding works specified in a fire safety order dated 15 December 2009 issued by Sydney City Council to Mr and Mrs Li at their premises at 193 Regent Street, Redfern, New South Wales.
I found that Mr and Mrs Li had failed to comply with all the requirements of the fire safety order, and that there was an unacceptable fire safety risk unless the outstanding requirements of the fire safety order were undertaken and completed. I ordered the outstanding works to be completed within 16 weeks from the date of the court order on 24 August 2011: see Sydney City Council v Li [2011] NSWLEC 165.
The proceedings for contempt have been fixed for hearing today. Unfortunately, Mr and Mrs Li have not attended the hearing.
I am satisfied on the evidence that Mr and Mrs Li have been properly served with the original court orders (which contained the appropriate warning of liability for contempt), the notice of motion and statements of charge for contempt, and the supporting affidavit evidence of a building surveyor with the Council, Mr Moujalli. Mrs Li personally attended the court directions hearing on 17 February 2012 when the Assistant Registrar fixed the contempt proceedings for hearing today, 26 April 2012.
Mr Moujalli also gave oral evidence that he attended the premises at 193 Regent Street on Tuesday, 24 April 2012, and asked Mrs Li whether she intended coming to the Court for the hearing of the contempt proceedings. Mrs Li first said she was unsure, but then later said "no". Mr and Mrs Li's agent, Mr Aspres, was also in attendance on this occasion and he said that there was no need for Mr and Mrs Li, or himself, to attend the hearing because the outstanding works had been completed.
At 4.14pm on 24 August 2012, the Council's solicitor, Mr Hawkes, emailed Mr Aspres urging Mrs Li to attend court on Thursday so that she could express her apologies and contrition to the Court for the contempt. Mr Hawkes also said that the Council was satisfied that the outstanding works had been completed and that as a result the contempt had been purged. Mr Hawkes said the Council would not be urging that a fine be imposed but would be seeking its legal costs in the sum of $3,600, as per an enclosed schedule.
Mr Aspres subsequently telephoned Mr Moujalli at 5.15pm on 24 August 2012 and repeated that he did not consider it necessary to attend the Court at the hearing of the contempt proceedings because the works had been completed.
As they had indicated would be the case, Mr and Mrs Li, and Mr Aspres, did not attend the hearing of the contempt proceedings today.
I considered that it was appropriate to continue the hearing of the contempt proceedings in their absence.
Contempt of court is established
The Council read the affidavit evidence of Mr Moujalli of 3 February and 24 April 2012, explaining the events that had occurred after my judgment and orders made on 24 August 2011. Mr Moujalli also gave oral evidence as to his conversations with Mr and Mrs Li and Mr Aspres. From this evidence I make the following factual findings.
Certain of the outstanding works, the subject of the court orders and the original fire safety order, were concerned with ensuring safe egress, in the event of fire, for the occupants of the residents on the first floor of the premises to a public road. The existing egress from the first floor residence was via an internal stairway to the ground floor fruit shop and then through a roller shutter to Regent Street, at the front of the premises. There was then no existing, lawful means of access from the premises to the public laneway at the rear of the premises.
Because of the risk that a fire might start in the ground floor fruit shop, through which area the occupants from the first floor residence would need to travel to reach Regent Street, the fire safety order required installation of a sophisticated fire detection system, building occupant and warning system, and fire alarm monitoring system, so that the occupants would have early warning and be able to escape safely from the building to the public road of Regent Street.
After I made the orders on 24 August 2011, in September 2011, Mr and Mrs Li, through their agent, Mr Aspres, proposed creating a right of way over adjoining properties they owned so as to be able to provide lawful access from the premises to the public laneway at the rear. They suggested to the Council that an external rear staircase should be constructed from the first floor of the premises to allow egress for the occupants to the public laneway via the right of way. They also suggested that the provision of such lawful access to the public laneway would reduce the need for the sophisticated, monitored alarm system, and instead alternative systems could be installed. Mr and Mrs Li, therefore, requested the Council to modify the fire safety order to allow these alternative measures.
The Council responded, in September and October 2011, that it would only be prepared to modify the fire safety order as suggested once documentary evidence had been submitted to the Council confirming easements (rights of way) had been registered over the adjoining, burdened land, allowing direct discharge from the external stairway of the premises to the rear laneway.
Mr and Mrs Li engaged a surveyor, Mr Mansell, to arrange for the creation and registration of the easements over the adjoining rear property.
On 29 November 2011, Mrs Li advised Mr Moujalli that her surveyor had said he would be able to register the required easement at the Land Titles Office within two weeks.
On 7 December 2011, Mrs Li advised Mr Moujalli that her bank had lost the title certificate for one of the properties and this was causing delay in registering the right of way.
On 15 December 2011, the day after the period of 16 weeks from the date of the Court's order for the outstanding works to be completed had expired, officers of the Council inspected the premises. They observed that none of the outstanding works required by the court orders had been completed. Hence, by this point in time, Mr and Mrs Li were in contempt of court by failing to comply with the Court's orders.
On 23 December 2011, the Council wrote to Mr and Mrs Li advising them that they were in breach of the Court's orders and that contempt proceedings may be instituted against them.
On 28 December 2011, Mrs Li spoke on the telephone with Mr Moujalli concerning the Council's letter of 23 December 2011. Mrs Li explained that the bank had caused a delay due to it requiring separate valuations of the various properties, which resulted in the paperwork for the easement being lodged in mid December 2011.
On Tuesday, 10 January 2012, Mr Moujalli met Mrs Li at the premises. Mrs Li advised Mr Moujalli that she would be contacting the Land Titles Office again on Thursday, 12 January 2012, to check on the progress of the easement. She also said she had received the architectural plan of the proposed external stairway and would forward it by email to Mr Moujalli shortly. Mr Moujalli advised Mrs Li that the Lord Mayor had authorised contempt proceedings and Mrs Li should do all in her power to progress the matter further.
On 24 January 2012, Mrs Li telephoned Mr Moujalli and advised that the easement was unable to be registered as additional information was required. She requested that Mr Moujalli contact her surveyor, Mr Mansell.
On 1 February 2012, Mr Moujalli contacted Mr Mansell who advised that the bank which had the mortgage over one of the properties had changed. This required the current mortgagee to produce the title and sign the administrative paperwork. Once this had been completed and submitted, it would take a couple of days to register it with the Land Titles Office.
On 3 February 2012, the Council commenced contempt proceedings against Mr and Mrs Li by notice of motion.
On 2 March 2012, Mrs Li contacted Mr Moujalli and advised that the necessary additional documentation had been lodged with the Land Titles Office to enable the rear easements to be registered. The same day, Mrs Li's surveyor, Mr Mansell, emailed Mr Moujalli advising that the easements would be registered by the Land Titles Office that afternoon.
Subsequently, on 9 March 2012, the Council received documentary evidence showing that the easements had been registered on the properties.
As a consequence of the registration of the easements over adjoining properties, the Council and Mr and Mrs Li agreed to modify the fire safety order, as had been discussed, to allow egress from the first floor of the premises via the external stairway directly to the rear laneway, and to modify the required systems for fire detection, warning and monitored alarm. Mr and Mrs Li signed and consented to the modified fire safety order issued by the Council on 27 March 2012. The modified fire safety order required the modified works to be completed by 26 April 2012.
On 24 April 2012, Mr Moujalli and another officer from the Council inspected the premises and observed that the provisions of the modified fire safety order had been generally completed. As a consequence, from that date, there are no longer any outstanding works under the modified fire safety order.
Mr Moujalli expressed his opinion that, as the result of completion of the works required by the modified fire safety order, the fire risk had been significantly reduced, based on the fact that the occupants from the first floor residence now have a means of egress to a safe place that does not require them to pass them through the ground floor shop.
The above narrative establishes that Mr and Mrs Li did fail to comply with my orders of 24 August 2011 by failing to undertake and to the complete the outstanding works under the fire safety order of 15 December 2009 by the due date of 14 December 2011. Mr and Mrs Li are, therefore, in contempt of court.
The appropriate punishment for the contempt
However, the original fire safety order was modified by consent of the Council and Mr and Mrs Li on 27 March 2012 and Mr and Mrs Li did comply with all of the requirements of the modified fire safety order by the required date of 26 April 2012. Today, there are no outstanding works under the modified fire safety order.
The reason for Mr and Mrs Li's failure to comply with the Court's orders of 24 August 2011 was that they sought, with the agreement of the Council, to pursue an alternative solution to the fire safety risk by providing an external stairway discharging from the first floor residence directly to the rear laneway. This alternative solution required the creation and registration of easements over adjoining properties. Unfortunately, due to a series of mishaps, the creation and registration of these easements took longer than expected.
Once, however, the easements were registered, Mr and Mrs Li readily consented to the Council modifying the fire safety order to implement the alternative solution and they undertook and completed all works required by the modified fire safety order within the time specified.
In these circumstances, I agree with the Council's submission that it is sufficient to find that Mr and Mrs Li are guilty of contempt by failing to comply with the Court's order, but not to impose any penalty, by way of fine or otherwise, for that proven contempt.
Contemnors are to pay the Council's costs
The Council also seeks its costs of the contempt proceedings in the fixed sum of $3,600. I consider this is appropriate. At the time the Council commenced the proceedings, Mr and Mrs Li were in breach of the Court's orders. They were required to have completed the outstanding works by 14 December 2011 but had failed to do so. The Council gave numerous warnings that contempt proceedings would be commenced. Ultimately, the Council waited until 3 February 2012 before commencing the contempt proceedings. Mr and Mrs Li did not complete the works (required by the modified fire safety order in place of the works required by the Court's orders) until 24 April 2012.
The Council has therefore been successful in, first, proving contempt and, secondly, in securing Mr and Mrs Li to, in effect, purge their contempt by carrying out the modified works.
The amount claimed by the Council is reasonable. It is appropriate to award a fixed sum in that amount, rather than have the Council's costs assessed.
The original court orders should not be modified
Finally, the Council submitted that the Court should now discharge its orders of 24 August 2011, in light of the modification of the fire safety order and the carrying out of all of the works required under the modified fire safety order. Whilst this is a sensible course, I do not consider I have power to do so. The orders have been entered. The power under Pt 36 r 36.15(2) of the Uniform Civil Procedure Rules 2005 to set aside entered orders is only available if the parties to the proceedings consent. Because Mr and Mrs Li have not attended the hearing, they are not able to state whether they consent to the orders being set aside. I am not prepared to imply their consent from the statements of Mrs Li or Mr Aspres that they did not consider it necessary to attend the hearing because the works required by the modified fire safety order have been completed.
Accordingly, my orders of 24 August 2011 will return. I note, however, that the Council has said that it would not be enforcing those court orders now because the orders have been superseded by the modified fire safety order, which has been complied with.
Orders
Accordingly, the Court:
(1) Finds each of the first and second respondents guilty of contempt of court for failing to comply with the Court's orders of 24 August 2011 as particularised in the Statement of Charge.
(2) Orders the first and second respondents to pay the applicant's costs of the contempt proceedings in the sum of $3,600.
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Decision last updated: 31 May 2012
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