Shoalhaven City Council v Knight [2019] NSWLEC 138

Shoalhaven City Council v Knight [2019] NSWLEC 138

The Respondent deliberately and persistently failed to comply with the 1 September 2014 Consent Orders requiring removal of the unauthorised dwelling, ancillary structures and specified items, and his admitted contempt was contumacious. Although an appropriate starting fine after a guilty plea discount was $12,750, his straitened financial circumstances, lack of realistic prospects of improvement, and the substantial clean-up and costs liabilities justified reducing the fine to $1,000. The Council had validly undertaken substituted performance and was entitled to reimbursement of $17,270.25, and because the contempt proceedings were brought by a public authority to uphold the integrity of...

Jurisdiction
Australia
Judgment Date
30 September 2019
Procedural Posture
Class 4 Contempt Proceedings Arising From Development Without Consent and Non Compliance With Consent Orders / Principal Judgment; Sentencing and Costs After Plea of Guilty to Contempt
Outcome
Respondent found guilty and convicted of contempt of court, fined $1,000, ordered to reimburse the Council's clean-up expenses, and ordered to pay the Council's costs on an indemnity basis as a gross sum.
Legal Topics
['development Without Consent' 'contravention of Court Orders' 'substituted Performance of Consent Orders' 'sentencing for Contempt' 'capacity to Pay a Fine' 'indemnity Costs' 'gross Sum Costs Order']
['environmental Planning and Assessment' 'contempt of Court' 'civil Procedure' 'costs'] ['development Without Consent' 'contravention of Court Orders' 'substituted Performance of Consent Orders' 'sentencing for Contempt' 'capacity to Pay a Fine' 'indemnity Costs' 'gross Sum Costs Order']

Case Brief

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Procedural Posture

Class 4 Contempt Proceedings Arising From Development Without Consent and Non Compliance With Consent Orders / Principal Judgment; Sentencing and Costs After Plea of Guilty to Contempt

Legal Issues

  1. 1 ['Whether the Respondent was guilty of contempt by failing to comply with orders made on 1 September 2014 requiring removal of an unauthorised dwelling, ancillary structures and specified items from the land.' 'Whether the contempt should be characterised as contumacious or wilful.' 'What fine should be imposed for the contempt, having regard to the guilty plea, subjective circumstances, deterrence, denunciation and capacity to pay.' 'Whether the Respondent should reimburse the Council for clean-up costs incurred by substituted performance.' "Whether the Respondent should pay the Council's costs of the contempt proceedings on an indemnity basis and as a gross sum order."]

Ratio Decidendi

The Respondent deliberately and persistently failed to comply with the 1 September 2014 Consent Orders requiring removal of the unauthorised dwelling, ancillary structures and specified items, and his admitted contempt was contumacious. Although an appropriate starting fine after a guilty plea discount was $12,750, his straitened financial circumstances, lack of realistic prospects of improvement, and the substantial clean-up and costs liabilities justified reducing the fine to $1,000. The Council had validly undertaken substituted performance and was entitled to reimbursement of $17,270.25, and because the contempt proceedings were brought by a public authority to uphold the integrity of...

Court Disposition

Respondent found guilty and convicted of contempt of court, fined $1,000, ordered to reimburse the Council's clean-up expenses, and ordered to pay the Council's costs on an indemnity basis as a gross sum.

Orders

  • ['Mr Gary John Knight is found guilty and convicted of contempt of court for breaching order 1 of the orders made on 1 September 2014 by failing to remove the Dwelling House and all ancillary structures on Lot 57 DP 11629 also known as Lot 57, Invermay Avenue, Tomerong within 12 months, by 1 September 2015.' 'Mr...