Hutley v Cosco [2016] NSWLEC 15

Hutley v Cosco [2016] NSWLEC 15

Civil contempt was established because the Respondent did not build the retaining wall and fence within the timeframes required by the consent orders of 28 August 2015, and his counsel ultimately accepted a finding of guilt. The contempt was unintentional rather than wilful or contumacious because the Respondent believed he could comply when the orders were made, promptly sought engineering and surveying advice, encountered a more complex retaining wall design and practical delays, and continued regular work until the wall and fence were completed. No penalty was warranted because the contempt had been purged, there were no short-term environmental or other consequences, deterrence and...

Jurisdiction
Australia
Judgment Date
10 March 2016
Procedural Posture
Class 4 Civil Contempt Proceedings Arising From Alleged Non Compliance With Consent Orders Requiring Construction of a Retaining Wall and Boundary Fence / Principal Judgment After Extended Hearing on Contempt, Sentencing and Costs
Outcome
Civil contempt established, characterised as unintentional and purged; no penalty imposed; Respondent ordered to pay specified costs; exhibits returned.
Legal Topics
['civil Contempt of Consent Orders' 'unintentional Contempt' 'purging Contempt' 'sentencing for Contempt' 'indemnity Costs' 'costs Where Motion Not Finally Determined' 'encroachment Onto Adjoining Land' 'retaining Wall and Boundary Fence Construction']
['contempt' 'civil Procedure' 'costs' 'land and Environment Court Proceedings'] ['civil Contempt of Consent Orders' 'unintentional Contempt' 'purging Contempt' 'sentencing for Contempt' 'indemnity Costs' 'costs Where Motion Not Finally Determined' 'encroachment Onto Adjoining Land' 'retaining Wall and Boundary Fence Construction']

Case Brief

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Procedural Posture

Class 4 Civil Contempt Proceedings Arising From Alleged Non Compliance With Consent Orders Requiring Construction of a Retaining Wall and Boundary Fence / Principal Judgment After Extended Hearing on Contempt, Sentencing and Costs

Legal Issues

  1. 1 ['Whether the Respondent was guilty of civil contempt for failing to comply with consent orders made on 28 August 2015 within the required timeframes.' 'Whether any contempt was technical, wilful or contumacious and what sentence or penalty was appropriate.' 'Whether the Applicants should receive indemnity costs or ordinary costs of the contempt motion.' 'Whether the Applicants should receive costs of the second Notice of Motion dated 4 November 2015 despite that motion not being finally determined.']

Ratio Decidendi

Civil contempt was established because the Respondent did not build the retaining wall and fence within the timeframes required by the consent orders of 28 August 2015, and his counsel ultimately accepted a finding of guilt. The contempt was unintentional rather than wilful or contumacious because the Respondent believed he could comply when the orders were made, promptly sought engineering and surveying advice, encountered a more complex retaining wall design and practical delays, and continued regular work until the wall and fence were completed. No penalty was warranted because the contempt had been purged, there were no short-term environmental or other consequences, deterrence and...

Court Disposition

Civil contempt established, characterised as unintentional and purged; no penalty imposed; Respondent ordered to pay specified costs; exhibits returned.

Orders

  • ["The Respondent is to pay the Applicants' costs of the Notice of Motion for contempt dated 14 October 2015." "The Respondent is to pay the Applicants' costs of 4 and 6 November 2015 of the Notice of Motion dated 4 November 2015." 'The exhibits are to be returned.']