The Hills Shire Council v Needham

[2020] NSWLEC 107

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Hills Shire Council v Needham [2020] NSWLEC 107

Hearing dates:

5 August 2020

Date of orders:

5 August 2020

Decision date:

05 August 2020

Jurisdiction:

Class 4

Before:

Pain J

Decision:

(1) The hearing dates of 5 and 6 August 2020 are vacated.

(2) The matter is set down for call-over to obtain a new hearing date and timetable on 18 September 2020 before the Class 4 List Judge.

(3) The Respondent is to pay the Council’s costs thrown away as a result of the vacation.

(4) The Respondent is to pay the Council’s costs of the notice of motion dated 30 July 2020.

Catchwords:

PROCEDURE – application to vacate hearing dates – application granted – applicant to pay costs of vacation

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 66

Land and Environment Court Rules 2007 r 7.7

Cases Cited:

Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174

Kurvest Pty Ltd v Sutherland Shire Council [2020] NSWLEC 96

The Hills Shire Council v Needham [2018] NSWLEC 1

Category:

Procedural and other rulings

Parties:

The Hills Shire Council (Applicant)
Norma Bianca Maree Needham (Respondent)

Representation:

COUNSEL:
Dr J Smith (Applicant)
R Vernon, agent (Respondent)

SOLICITORS:
Marsdens (Applicant)
N/A (Respondent)

File Number(s):

17/162057

EX TEMPORE Judgment

1. The Council has filed seven charges of contempt of Court orders made by the Court on 10 July 2018 restraining the use of a property at Kenthurst for a function centre including wedding receptions and as a commercial property including use for commercial photography by the property owner Mrs Norma Needham, the Respondent. Mrs Needham was also restrained from advertising the property for these purposes inter alia. The seven charges relate to wedding receptions and/or commercial photography events held on dates ranging from August 2018 to September 2019. Injunctive relief has already been obtained by the Council in relation to these activities in the earlier Class 4 proceedings.

2. Mrs Needham has pleaded not guilty to all charges. They have been set down for a two day hearing today and tomorrow. By notice of motion dated 30 July 2020 returnable this morning at the outset of the hearing, filed by Mr Vernon acting as agent for Mrs Needham, vacation of the hearing dates for six months is sought. Mr Vernon sought leave to appear as agent for Mrs Needham which I allowed pursuant to r 7.7 of the Land and Environment Court Rules 2007 (NSW) (LEC Rules). Mrs Needham did not attend Court and provided a medical certificate from a medical practitioner through Mr Vernon stating that she could not attend Court today due to her psychological state (Exhibit A).

3. Section 66 of the Civil Procedure Act 2005 (NSW) (CP Act) provides the necessary power to postpone, through vacation, hearing dates. Any orders made must be mindful of ss 56, 57 and 58 of the CP Act, including in relation to case management, the just determination of proceedings and the efficient and timely disposal of proceedings inter alia. Relevant principles are usefully summarised by Ward JA in Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 at [13] cited by Robson J in Kurvest Pty Ltd v Sutherland Shire Council [2020] NSWLEC 96 at [10] as follows

The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court.

4. The brief affidavit filed by Mr Vernon dated 30 July 2020 read in support of the application to vacate states that Mrs Needham is unwell, wishes to get legal representation and, due to financial restrictions over the last nine months, had not had the money to pay for lawyers but that situation is being resolved.

5. While not ideal when acting as Mrs Needham’s agent, Mr Vernon an accountant stated that he is also the business partner of Mrs Needham and was sworn in to give oral evidence in support of his scant affidavit evidence. Essentially Mr Vernon and Mrs Needham have companies which are in substantial financial difficulties with the principal lender seeking to recover debts. To that end one large commercial property has been sold for well under value according to Mr Vernon. The same loan arrangement is in place over the Kenthurst property owned by Mrs Needham. The sheriff has served a writ of execution of that loan requiring vacation of the Kenthurst property by 10 September 2020. There is another outstanding loan over the Kenthurst property. He and Mrs Needham are trying to refinance to deal with their debts and to pay for legal expenses. Mr Vernon has approached a broker but cannot provide details yet as these are still forthcoming. Mr Vernon is concerned about Mrs Needham’s mental state given these financial difficulties, particularly if she loses the Kenthurst property. Mr Vernon was asked if any weddings or commercial photography events have been held since September 2019 and he said not that he was aware of, similarly in relation to advertising of the Kenthurst property for such uses.

6. The Council opposes the application to vacate the hearing dates. It transparently acknowledges that the only prejudice to it is incurring costs thrown away which it intends to claim from Mrs Needham in due course. It is also prejudiced if the current proceedings proceed as Mrs Needham has pleaded not guilty but has not filed any evidence on which she wishes to rely despite Court orders requiring this to be done. The Council does not know the basis of her defence. Were the matter to proceed and Mrs Needham was to rely on oral evidence, the Council would have difficulty testing that evidence given the complete absence of notice of any evidence or defence.

7. In a successful application made to vacate the Class 4 proceedings which resulted in the orders in relation to which contempt proceedings have been commenced, I observed in The Hills Shire Council v Needham [2018] NSWLEC 1 at [12] that Mrs Needham would benefit from legal representation in the preparation of her case. Similar observations also apply now.

8. Balancing the matters raised by the parties, I consider the dictates of justice require that the hearing today and tomorrow should be vacated in light of the personal circumstances of Mrs Needham, despite the very late application to vacate the hearing dates and despite the current pressures on court availability for hearings. The matter should have a call-over sooner rather than later to try and get matters in better order for a future hearing.

9. The Council’s costs of the vacated hearing dates and of the notice of motion to vacate should be paid by Mrs Needham.

Orders

10. The Court orders:

1. The hearing dates of 5 and 6 August 2020 are vacated.

2. The matter is set down for call-over to obtain a new hearing date and timetable on 18 September 2020 before the Class 4 List Judge.

3. The Respondent is to pay the Council’s costs thrown away as a result of the vacation.

4. The Respondent is to pay the Council’s costs of the notice of motion dated 30 July 2020.

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Decision last updated: 07 August 2020