Tynan v Meharg - [1999] NSWCA 157

CITATION: TYNAN v MEHARG [1999] NSWCA 157

FILE NUMBER(S): CA 40119/98

HEARING DATE(S): 15 February 1999

JUDGMENT DATE:
31 May 1999

PARTIES :

TYNAN & ORS
v
MEHARG & ANOR

JUDGMENT OF: Priestley JA at 1; Handley JA at 1; Stein JA at 1

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S) : LEC 40242/96

LOWER COURT JUDICIAL OFFICER: Sheahan J

COUNSEL: Claimant/Respondent (1) J Blackman/L Byrne
Opponent (1)/Appellant - P J McEwan SC
Opponent (2)/Respondent (2) - M Baird

SOLICITORS: Claimant/Respondent (1) - Cleaves Mallik Gibbs, Cessnock
Opponent (1)/Appellants - Emery Partners, Newcastle West
Opponent (2)/Respondent (2) - Harris Wheeler, Newcastle

CATCHWORDS: CONTEMPT OF COURT - NON-COMPLIANCE WITH COURT ORDER TO DEMOLISH HOUSE - APPROPRIATE PENALTY

DECISION: Guilty of contempt; Orders made

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40119/98
40242/96

PRIESTLEY JA
HANDLEY JA
STEIN JA

Monday 31 May 1999

TYNAN & ORS v MEHARG & ANOR

CONTEMPT OF COURT - non-compliance with court order to demolish house - appropriate penalty
On 24 February 1999 the first opponents had been found guilty of contempt of court for failing to comply with an order to demolish a house on or before 30 November 1998. Contempt proceedings were commenced on 3 December 1998. The order was fully complied with by 6 March.
HELD: (1) Although a late start was made towards compliance with the order, reasonably expeditious steps had been taken towards compliance from mid-February. (2) It was appropriate for the Court to take into account the economic and personal losses of the contemnors caused by compliance with the order.
ORDERS
(1) Declare that the first opponents and each of them were guilty of contempt of court in that in disobedience of the order of the court made on 30 September 1998 they have failed to remove on or before 30 November 1998 from the land known now as Lot 6 in Deposited 850020, the building or buildings erected, extended or altered, in reliance on purported building approvals number 2318/93, number 95/1371, and the amendment to said building approval dated 6 February 1996.
(2) The opponents to pay the claimants’ costs on an indemnity basis of the notices of motion of 3 December 1998 and 9 February 1999.
(3) No order as to the costs of the second opponent.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40119/98
40242/96

PRIESTLEY JA
HANDLEY JA
STEIN JA

Monday 31 May 1999

TYNAN & ORS v MEHARG & ANOR

1 THE COURT: The court today makes orders in proceedings brought by the claimant Mr Meharg against the opponents Messrs H.A. J.J. and M.J. Tynan seeking orders that the opponents be found guilty of contempt of court and that they be dealt with according to law, for disobedience of a court order to remove a house at Black Hill in the local government area of the Newcastle City Council.
2 On earlier occasions the court found that the Tynans were guilty of contempt of court,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tynan v Meharg

Details

AGLC: Tynan v Meharg [1999] NSWCA 157
Case: [1999] NSWCA 157
Decision Date: 31 May 1999

CaseChat Overview and Summary

The parties to this proceeding were Tynan (the applicant) and Meharg (the respondent). The dispute concerned the respondent's failure to comply with a court order requiring the demolition of a house. The matter came before the New South Wales Court of Appeal.

The primary legal issue before the Court of Appeal was to determine the appropriate penalty for the respondent's contempt of court, arising from his non-compliance with the demolition order.

The Court found the respondent guilty of contempt. In determining the penalty, the Court considered the respondent's persistent defiance of the court's orders and the need to uphold the authority of the court. The Court ultimately made orders regarding the penalty to be imposed.

Orders

Orders of the court

Guilty of contempt; Orders made

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	TYNAN v MEHARG [1999] NSWCA 157
FILE NUMBER(S):	CA 40119/98
HEARING DATE(S):	15 February 1999
JUDGMENT DATE:	31 May 1999
PARTIES :	TYNAN & ORS v MEHARG & ANOR
JUDGMENT OF:	Priestley JA at 1; Handley JA at 1; Stein JA at 1

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40242/96
LOWER COURT JUDICIAL OFFICER:	Sheahan J

COUNSEL:	Claimant/Respondent (1) J Blackman/L Byrne Opponent (1)/Appellant - P J McEwan SC Opponent (2)/Respondent (2) - M Baird
SOLICITORS:	Claimant/Respondent (1) - Cleaves Mallik Gibbs, Cessnock Opponent (1)/Appellants - Emery Partners, Newcastle West Opponent (2)/Respondent (2) - Harris Wheeler, Newcastle
CATCHWORDS:	CONTEMPT OF COURT - NON-COMPLIANCE WITH COURT ORDER TO DEMOLISH HOUSE - APPROPRIATE PENALTY
DECISION:	Guilty of contempt; Orders made