Tri Huu Pham v Emile Papaioannou [2019] NSWLEC 180

Tri Huu Pham v Emile Papaioannou [2019] NSWLEC 180

The Respondent was guilty of contempt because the photographic evidence established that between March and July 2019 trees T4 to T7 exceeded the maximum height required by Order (5), and the order required the hedge to be maintained so that it did not exceed that height at any time, not merely pruned back to that...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
15 November 2019
Procedural Posture
Class 2 Contempt Proceedings Arising From Orders Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Extempore Judgment on Charge of Contempt and Costs
Outcome
The Respondent was found guilty of contempt, fined $500, and ordered to pay the Applicant's costs of $47,126.
Legal Topics
['compliance With Tree Pruning Orders' 'wilful But Not Contumacious Contempt' 'sentencing for Contempt' 'indemnity Costs' 'gross Sum Costs Order']
['contempt' 'costs' 'trees Disputes'] ['compliance With Tree Pruning Orders' 'wilful But Not Contumacious Contempt' 'sentencing for Contempt' 'indemnity Costs' 'gross Sum Costs Order']

Source-derived case record

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Procedural Posture

Class 2 Contempt Proceedings Arising From Orders Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Extempore Judgment on Charge of Contempt and Costs

Legal Issues

  1. 1 ['Whether the Respondent failed to comply with Order (5) of the orders made on 9 February 2011 requiring trees T4 to T7 to be maintained at no more than 500 millimetres above the Colorbond fence or 1.6 metres above the adjoining path.' 'Whether the contempt should be characterised as contumacious, wilful, or minor, trifling or accidental.' 'What penalty should be imposed for the contempt.' 'Whether the Applicant should receive indemnity costs and whether a gross sum costs order should be made.']

Ratio Decidendi

The Respondent was guilty of contempt because the photographic evidence established that between March and July 2019 trees T4 to T7 exceeded the maximum height required by Order (5), and the order required the hedge to be maintained so that it did not exceed that height at any time, not merely pruned back to that height periodically. The contempt was wilful because the Respondent knew of the order, but it was not contumacious because the breach was significantly attributable to his misunderstanding of the obligation. A small fine was appropriate, and indemnity costs in the gross sum of $47,126 were appropriate to compensate the Applicant for the costs necessarily incurred in enforcing the...

Court Disposition

The Respondent was found guilty of contempt, fined $500, and ordered to pay the Applicant's costs of $47,126.

Orders

  • ['The Respondent is found guilty of contempt.' 'The Respondent is fined $500.00.' "The Respondent is ordered to pay Applicant's costs, pursuant to s 98(4)(c) of the Civil Procedure Act 2005, in the amount of $47,126.00."]