Tynan v Meharg - [1999] NSWCA 27

NEW SOUTH WALES COURT OF APPEAL

CITATION: TYNAN v MEHARG [1999] NSWCA 27

FILE NUMBER(S):
40119/98

HEARING DATE(S): 15 February 1999

JUDGMENT DATE: 24/02/1999

PARTIES:

TYNAN & ORS v MEHARG & ANOR

JUDGMENT OF: Priestley JA Handley JA Stein JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S):
LEC 40242/96
LOWER COURT JUICIAL 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 proceedings - order by Land & Environment Court for removal of house

ACTS CITED:

DECISION:
Interim orders in aid of court's consideration of appropriate enforcement and penalty orders

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA     40119/98
  LEC    40242/96
PRIESTLEY JA
  HANDLEY JA
  STEIN JA
Wednesday, 24 February 1999

TYNAN & ORS v MEHARG & ANOR
ORDER MADE BY LAND & ENVIRONMENT COURT FOR REMOVAL OF HOUSE - appeal against order in Court of Appeal fails - non compliance with order - contempt proceedings - interim orders made in aid of court’s consideration of appropriate enforcement and penalty orders.
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THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA     40119/98
  LEC    40242/96
PRIESTLEY JA
  HANDLEY JA
  STEIN JA
Wednesday, 24 February 1999

TYNAN & ORS v MEHARG & ANOR
REASONS FOR INTERIM ORDERS

THE COURT: Mr P. Meharg (as claimant) has sought orders that Messrs H.A. J.J. and M.J. Tynan (the Tynans) (the first 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 from Lot 6 in Deposited Plan 850020. The Tynans are brothers. They own Lot 6, which is at Black Hill in the local government area of the Newcastle City Council (the Council). Mr Meharg owns adjoining land. Mr Meharg joined the Council as the second opponent in the contempt proceedings.
The contempt proceedings are the consequence of proceedings brought by Mr Meharg against the Tynans and the Council in the Land & Environment Court. In that court Sheahan J made orders and declarations on 13 February 1998 in favour of Mr Meharg. One of the orders was that a second house built on the Tynan’s land be removed by 30 April 1998.
The Tynans appealed against Sheahan J’s judgment and pending the decision of the appeal the time for compliance with the removal order was extended to 1 October 1998. On 30 September 1998 the appeal against the removal order was dismissed. The time for compliance with the removal order was extended to 30 November 1998.
On 17 November 1998 the Tynans filed a notice of motion in this court seeking an extension of the time within which the house was to be removed. The application was heard and decided by Handley JA on 23 November 1998. The application…

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 27
Case: [1999] NSWCA 27
Decision Date: 24 February 1999

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard contempt proceedings brought by the respondent, Mr Meharg, against the applicant, Mr Tynan. The dispute concerned Mr Tynan's failure to comply with an earlier order of the Court requiring the removal of a house.

The Court was required to determine whether Mr Tynan was in contempt of the previous order and, if so, what penalty or enforcement orders were appropriate.

The Court found Mr Tynan to be in contempt of the order for the removal of the house. In reaching this conclusion, the Court considered the evidence presented regarding Mr Tynan's actions and omissions. The Court ultimately made interim orders in aid of its consideration of appropriate enforcement and penalty orders.

Orders

Orders of the court

Interim orders in aid of court's consideration of appropriate enforcement and penalty orders

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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