Tweed Shire Council v Kress

[2004] NSWLEC 653

Land and Environment Court

of New South Wales

CITATION:	Tweed Shire Council v Kress [2004] NSWLEC 653
PARTIES:	APPLICANT: Tweed Shire Council RESPONDENT: Tony Kress
FILE NUMBER(S):	40193 of 2001
CORAM:	Pain J
KEY ISSUES:	Practice and Procedure :- making of orders permitting a council to carry out works which an earlier order of the Court required the Respondent to carry out in the absence of proceedings for contempt
LEGISLATION CITED:	Land and Environment Court Act 1979, s 20(4), s 23 Land and Environment Court Rules, Pt 6 r 1(2) , Pt 15 r 9A Local Government Act 1993, s 678 Supreme Court Rules, Pt 42 r 1, Pt 42 r 9
CASES CITED:
DATES OF HEARING:	03/11/04
EX TEMPORE JUDGMENT DATE :	11/03/2004
LEGAL REPRESENTATIVES:	APPLICANT: Ms S. Duggan instructed by Stacks Northern Rivers RESPONDENT: No Appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

3 November 2004

40193 of 2001 Tweed Shire Council v Tony Kress

JUDGMENT

1 Her Honour: On 5 March 2002 this Court made, inter alia, the following orders:

(1) That the Respondent, his servants and agents be restrained from using land known as Lot B DP 309747 Birrell Creek Hamlet, Birrell Creek Road, Birrell Creek (“the land”) for the purpose of a junk yard without the consent of the Applicant.
(2) That the Respondent remove from the land all motor vehicles and parts thereof and all waste paper, bottles, scrap materials, scrap metals and other junk within 28 days from the date hereof.

2 The Council has now filed an amended Notice of Motion dated 19 August 2004 in the proceedings before me. The main order which the Council seeks is an order that the Applicant be able to enter upon the Respondent’s premises and carry out the work the subject of order 2 above. The Notice of Motion states that that order is to be made pursuant to s 678 of the Local Government Act 1993.

3 The orders made by the Court on 5 March 2002, which today’s notice of motion seeks to enforce, were made in the absence of Mr Kress, the Respondent, and he has not appeared today for the hearing of the Council’s Notice of Motion.

4 In support of its Notice of Motion the Council has tendered:

(a) an affidavit of Mr Coleman, dated 20 September 2004, which confirms the Respondent was served with this amended notice of motion;
(b) an affidavit of Mr Delaney, the Council’s solicitor, dated 1 November 2004, which attests to a visit to his office by the Respondent on 1 November and to a conversation with him which suggested he was well aware of the matter being before this Court today; and
(c) two affidavits of Mr Bishop, a Council officer, dated 1 September and 14 September 2004, which states that the work required by order 2 made on 5 March 2002 remains undone.

5 The Council has changed the orders it seeks in that it no longer relies on the Local Government Act powers but rather the Land and Environment Court Act 1979 and the Supreme Court Rules, particularly Pt 42 r 9, which is adopted by the Land and Environment Court Rules.

6 The substantive orders now sought by the Council are essentially no different to those set out in the Notice of Motion served on the Respondent so that I do not consider there is any disadvantage to the Applicant in not receiving the precise orders sought by the Council today.

7 I further note there is clear evidence in the affidavits of Mr Bishop that, as at 25 August 2004, the work required by order 2 made on 5 March 2002 remains undone. This is essentially also clear from the conversation between the Respondent and Mr Delaney on 1 November 2004 attested to in the affidavit of Mr Delaney.

8 I consider that it is appropriate that the matter proceed in the Respondent’s absence, given that he has been served with the Notice of Motion and, accordingly, has had the opportunity to attend the hearing today.

9 The orders sought by the Council rely on this Court’s powers pursuant to s 20(4) of the Land and Environment Court Act1979 which states that:

The provisions of the Supreme Court Act 1970, and the rules there under, relating to the enforcement of judgments and orders of the Supreme Court apply to the enforcement of any judgment or order of the Court in proceedings referred to in Class 4 of its jurisdiction, and so apply as if references in those provisions to the Supreme Court were references to the Court, and with such other adaptations as may be necessary or as may be prescribed by the rules.

10 Section 23 of the Land and Environment Court Act 1979 states:

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate

11 Further Pt 6 of the Land and Environment Court Rules incorporates Pt 42 of the Supreme Court Rules. Part 42 r 9(1) of the Supreme Court Rules provides that:

(1) Where a judgment requires the person bound to do an act and the person bound does not do the act, the Court may:
(a) direct that the act be done by a person appointed by the Court, and
(b) order the person bound to pay the costs incurred pursuant to the direction.

12 I note that Pt 42 r 1 provides that judgment includes an order. I agree with the Council’s barrister that Part 42 r 9(1) of the Supreme Court Rules appears to provide an appropriate mechanism for enforcing orders of this Court without the necessity of prosecuting the Respondent for contempt of court. I also note that the Council’s barrister has not been able to find a reported instance where such orders have previously been made by this Court.

13 I consider that Part 42 r 9(1) of the Supreme Court Rules grants to this Court the power to make orders 1 to 5 in the order that I intend to make today. Orders 1 – 5 which I intend to make are as follows:

1. In relation to land known as Lot B DP 309747 Byrrill Creek Hamlet, Byrrill Creek Road, Byrrill Creek (“the land”) the Applicant by its servants and agents is directed to do those acts which order 2 of the orders made by this Court dated 5 March 2002 are required to be done by the Respondent, namely, that the Applicant do all things necessary or convenient to remove from the land all motor vehicles and parts thereof and all waste paper, bottles, scrap materials, scrap metals and other junk, including but not limited to the crushing of any motor vehicles and/or scrap metals prior to the removal from the land. The time for compliance with this order (1) is at the absolute discretion of the Applicant subject to the provisions of order (2) and (5).
2. Upon the giving of a notice to enter premises in accordance with the provisions of s.193 of the Local Government Act 1993 the Applicant, its servants and agents will, for the purposes of order (1), now and until order (1) has been carried out, be entitled to enter and remain on the land between the hours of 8am and 6pm on week days for the purpose of carrying out order (1).
3. The Respondent pay the costs incurred by the Applicant in carrying out order (1).
4. For the purposes of order (3):
(a) the Applicant may sell the materials resulting from its removal, pursuant to order (1).
(b) if the proceeds of such a sale exceed the costs incurred by the Applicant in relation to the removal of the said motor vehicles and parts thereof and all waste paper, bottles, scrap materials, scrap metals and other junk as required by order (1) the Applicant:
(i) may deduct out of the proceeds of the sale an amount equal to those costs; and
(ii) must pay the surplus to the Respondent on demand.
(c) if the proceeds of sale do not exceed those costs the Applicant:
(i) may retain the proceeds; and
(ii) may recover the deficiency (if any) together with its costs of recovery from the Respondent as a debt;
(d) materials removed that are not saleable may be destroyed or otherwise disposed of.
(e) any costs incurred by the Applicant in carrying out order (1) (less the proceeds, if any, of any sale under these orders) together with all its associated costs may be recovered by the Applicant in any court of competent jurisdiction as a debt due to the Applicant by the Respondent.
(f) A reference in this order to “costs” is a reference to costs incurred by the Applicant in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this order prevents the Applicant from receiving costs as between party and party in respect of any such proceedings.
5. The Court directs that a copy of these Orders shall be served upon the Respondent, together with a letter advising the Respondent of his rights under Pt 15 r 9(a) of the Land and Environment Court Rules and that no steps shall be taken pursuant to these Orders until 2 weeks after the date on which service has been effected. For the purposes of this Order service shall be effected if a copy of these Orders is:
(a) sent by ordinary post to the Respondent at the following addresses:
(i) P O Box 5 Uki, NSW
(ii) site 25, Royal Pacific Caravan Park, Chinderah, NSW; and
(iii) c/- Mr P McCormack, solicitor, Hynes McCormack solicitors;
AND
(b) a copy of the Orders is affixed to a post at the Boundary of the land.

14 I will make particular mention of order 4 and note that it mirrors the mechanisms available under s 678 of the Local Government Act 1993. Section 678 of the Local Government Act 1993 enables a council who is carrying out the work required by an order issued by the Council to offset any money obtained from the sale of any items taken from the land against the cost of doing that work. I note that order 4 provides for a similar offset in that the money obtained by the Council from the sale of items removed from the Respondent’s land is to offset against the costs incurred by the Council in so removing these items.

15 I raised my concerns with the Council’s barrister as to whether order 4 essentially allows the confiscation of the Respondent’s property and therefore may be beyond the power of this Court to order. I accept, however, the submissions made by the Council’s barrister that while order 4 essentially allows for the sale of the Respondent’s property, the proceeds of that sale will be kept in trust for the Respondent so the value of that property remains with the Respondent and, therefore, no confiscation of property is taking place. I also accept the Council’s barrister’s submissions that this is a practical and effective means of ensuring that the cost to the Respondent of the Council removing the items is in fact minimised, and so, in the circumstances I propose to make order 4 as set out above.

16 I further note that provision is made in the orders for the service of the orders to be effected by various means and that no work is to commence for some two weeks after the date of that service. Thus if any property belonging to persons other than the Respondent is to be removed from the land, the owners of that property have two weeks grace in which to remove it before the Council has it removed. I think this also overcomes any difficulties in relation to property belonging to persons other than the Respondent which may otherwise be caught by order 4.

17 I have also required that a letter be sent to the Respondent advising him of his rights under Pt 15 r 9A of the Land and Environment Court Rules given that these orders have been made in his absence.

18 Pursuant to the provisions of Pt 42 r 9 of the Supreme Court Rules and Pt 6 r 1(2) of the Land and Environment Court Rules the Court orders that:

1. In relation to land known as Lot B DP 309747 Byrrill Creek Hamlet, Byrrill Creek Road, Byrrill Creek (“the land”) the Applicant by its servants and agents is directed to do those acts which order 2 of the orders made by this Court dated 5 March 2002 are required to be done by the Respondent, namely, that the Applicant do all things necessary or convenient to remove from the land all motor vehicles and parts thereof and all waste paper, bottles, scrap materials, scrap metals and other junk, including but not limited to the crushing of any motor vehicles and/or scrap metals prior to the removal from the land. The time for compliance with this order (1) is at the absolute discretion of the Applicant subject to the provisions of order (2) and (5).
2. Upon the giving of a notice to enter premises in accordance with the provisions of s.193 of the Local Government Act 1993 the Applicant, its servants and agents will, for the purposes of order (1), now and until order (1) has been carried out, be entitled to enter and remain on the land between the hours of 8am and 6pm on week days for the purpose of carrying out order (1).
3. The Respondent pay the costs incurred by the Applicant in carrying out order (1).
4. For the purposes of order (3):
(a) the Applicant may sell the materials resulting from its removal, pursuant to order (1).
(b) if the proceeds of such a sale exceed the costs incurred by the Applicant in relation to the removal of the said motor vehicles and parts thereof and all waste paper, bottles, scrap materials, scrap metals and other junk as required by order (1) the Applicant:
(i) may deduct out of the proceeds of the sale an amount equal to those costs; and
(ii) must pay the surplus to the Respondent on demand.
(c) if the proceeds of sale do not exceed those costs the Applicant:
(i) may retain the proceeds; and
(ii) may recover the deficiency (if any) together with its costs of recovery from the Respondent as a debt;
(d) materials removed that are not saleable may be destroyed or otherwise disposed of.
(e) any costs incurred by the Applicant in carrying out order (1) (less the proceeds, if any, of any sale under these orders) together with all its associated costs may be recovered by the Applicant in any court of competent jurisdiction as a debt due to the Applicant by the Respondent.
(f) A reference in this order to “costs” is a reference to costs incurred by the Applicant in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this order prevents the Applicant from receiving costs as between party and party in respect of any such proceedings.
5. The Court directs that a copy of these Orders shall be served upon the Respondent, together with a letter advising the Respondent of his rights under Pt 15 r 9(a) of the Land and Environment Court Rules and that no steps shall be taken pursuant to these Orders until 2 weeks after the date on which service has been effected. For the purposes of this Order service shall be effected if a copy of these Orders is:
(a) sent by ordinary post to the Respondent at the following addresses:
(i) P O Box 5 Uki, NSW
(ii) site 25, Royal Pacific Caravan Park, Chinderah, NSW; and
(iii) c/- Mr P McCormack, solicitor, Hynes McCormack solicitors;
AND
(b) a copy of the Orders is affixed to a post at the Boundary of the land.
6. The Respondent pay the Applicant’s costs in relation to the Applicant’s Notice of Motion dated 26 August 2004.