Georges River Council v Stojanovski (No 2) [2019] NSWLEC 53

Georges River Council v Stojanovski (No 2) [2019] NSWLEC 53

The First Respondent was served with Pepper J's orders requiring him not to use the unlawfully erected sheds for residential purposes and to demolish all unlawfully erected structures, yet inspections and photographic evidence showed no effort to comply and showed the buildings remained and continued to be used for a residential purpose. Being on notice of the contempt hearing but absent, and with no sufficient basis for further deferral, he was guilty of contempt and remedial and substituted performance orders were warranted, with punishment deferred.

Jurisdiction
Australia
Judgment Date
15 April 2019
Procedural Posture
Class 4 Contempt Proceedings by Notice of Motion / Hearing of Notice of Motion Alleging Contempt; Sentencing Hearing Stood Over for Directions
Outcome
First Respondent found guilty of contempt of Court; demolition, substituted performance, and costs orders made; sentencing hearing stood over for directions.
Legal Topics
['disobedience of Court Orders' 'unauthorised Development' 'demolition and Removal Orders' 'substituted Performance' 'indemnity Costs']
['environmental Planning Law' 'civil Procedure' 'contempt of Court'] ['disobedience of Court Orders' 'unauthorised Development' 'demolition and Removal Orders' 'substituted Performance' 'indemnity Costs']

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Procedural Posture

Class 4 Contempt Proceedings by Notice of Motion / Hearing of Notice of Motion Alleging Contempt; Sentencing Hearing Stood Over for Directions

Legal Issues

  1. 1 ['Whether the First Respondent was guilty of contempt by continuing to use two sheds erected without development consent for a habitable dwelling contrary to Order 2 made on 21 August 2018.' 'Whether the First Respondent was guilty of contempt by failing to demolish all unlawfully erected structures on the Property within 28 days of Order 3 made on 21 August 2018.' "Whether the matter should be further deferred because of the First Respondent's late indication that demolition works might commence on about 15 May 2019." 'Whether further remedial orders, including substituted performance, should be made before punishment for contempt.']

Ratio Decidendi

The First Respondent was served with Pepper J's orders requiring him not to use the unlawfully erected sheds for residential purposes and to demolish all unlawfully erected structures, yet inspections and photographic evidence showed no effort to comply and showed the buildings remained and continued to be used for a residential purpose. Being on notice of the contempt hearing but absent, and with no sufficient basis for further deferral, he was guilty of contempt and remedial and substituted performance orders were warranted, with punishment deferred.

Court Disposition

First Respondent found guilty of contempt of Court; demolition, substituted performance, and costs orders made; sentencing hearing stood over for directions.

Orders

  • ['The First Respondent having continued to use the two sheds, which were erected on the land described as Part Lot 68 DP 2997 known as 47 Jersey Avenue, Mortdale without development consent, for the purpose of a habitable dwelling, in contravention of Order 2 as made by this Court in proceedings 2018/99739 on 21...