Cumberland Council v Khoury (No 3)* [2016] NSWLEC 55

Cumberland Council v Khoury (No 3)* [2016] NSWLEC 55

The Council proved beyond reasonable doubt that Mr Khoury continued to use the premises as a boarding house after the February and April 2015 orders and without development consent, and that he had not carried out the remedial demolition and removal works required by the second April 2015 order. The evidence from occupants, bank records, Council officers and expert inspection established the boarding house use and non-compliance. The prolonged continuation of the boarding house use until utility cessation orders and the ongoing failure to undertake the ordered works demonstrated deliberate defiance of the Court's orders, so each contempt was contumacious.

Jurisdiction
Australia
Judgment Date
23 May 2016
Procedural Posture
Class 4 Contempt Proceedings Concerning Alleged Non Compliance With Land and Environment Court Orders / Principal Judgment; Convictions Entered and Sentencing Deferred
Outcome
Robert Khoury was convicted of three charges of contempt of court; sentencing was deferred for six months and a presentence report and further inspection were ordered.
Legal Topics
['use of Premises as a Boarding House Without Development Consent' 'failure to Comply With Court Orders' 'unauthorised Building Works' 'contumacious Contempt' 'deferral of Sentencing to Permit Contempt to Be Purged']
['planning and Environment' 'contempt of Court' 'sentencing'] ['use of Premises as a Boarding House Without Development Consent' 'failure to Comply With Court Orders' 'unauthorised Building Works' 'contumacious Contempt' 'deferral of Sentencing to Permit Contempt to Be Purged']

Case Brief

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Procedural Posture

Class 4 Contempt Proceedings Concerning Alleged Non Compliance With Land and Environment Court Orders / Principal Judgment; Convictions Entered and Sentencing Deferred

Legal Issues

  1. 1 ['Whether Mr Khoury failed to comply with the 12 February 2015 order to cease use of 36 Frances Street, South Wentworthville as a boarding house.' 'Whether Mr Khoury failed to comply with the 7 April 2015 order restraining use of the premises as a boarding house without development consent.' 'Whether Mr Khoury failed to comply with the 7 April 2015 order requiring demolition and removal of unauthorised structures identified in Annexure A - List of Works.' 'Whether the premises were being used as a boarding house within the meaning of the Holroyd Local Environmental Plan 2013.' 'Whether the contempts should be classified as technical, wilful or contumacious.' 'Whether sentencing should be deferred to permit Mr Khoury to purge the ongoing contempt.']

Ratio Decidendi

The Council proved beyond reasonable doubt that Mr Khoury continued to use the premises as a boarding house after the February and April 2015 orders and without development consent, and that he had not carried out the remedial demolition and removal works required by the second April 2015 order. The evidence from occupants, bank records, Council officers and expert inspection established the boarding house use and non-compliance. The prolonged continuation of the boarding house use until utility cessation orders and the ongoing failure to undertake the ordered works demonstrated deliberate defiance of the Court's orders, so each contempt was contumacious.

Court Disposition

Robert Khoury was convicted of three charges of contempt of court; sentencing was deferred for six months and a presentence report and further inspection were ordered.

Orders

  • ['Robert Khoury is convicted of the charge of contempt of court in that he has failed to obey the order made by this Court on 12 February 2015 that, within 14 days of the service of that order, Mr Khoury, by himself, his servants and agents, cease the use of the building at 36 Frances Street, South Wentworthville as...