Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 4) [2013] NSWLEC 88

Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 4) [2013] NSWLEC 88

The contempts were wilful and of moderate seriousness, caused significant harm to neighbourhood amenity, and required punishment and general deterrence, but they were not alleged to be contumacious, had been purged by redevelopment and compliance, and there was no likelihood of reoffending. Tovir's commercial benefit and capacity justified a $40,000 fine. Michael Rappaport's fine was heavily reduced to $4,000 because accepted psychological evidence showed that a heavy fine would significantly harm his rehabilitation.

Jurisdiction
Australia
Judgment Date
18 June 2013
Procedural Posture
Class 4 Contempt Proceedings / Sentencing for Contempt of Court After Respondents Were Adjudged Guilty of Contravening Consent Orders
Outcome
Respondents fined for contempt and ordered to pay the applicant's costs.
Legal Topics
['disobedience of Court Orders' 'backpackers Accommodation' 'waverley Local Environmental Plan 1996' 'relevance of Mental Condition to Sentencing' 'general Deterrence' 'costs']
['contempt' 'planning and Environment' 'sentencing'] ['disobedience of Court Orders' 'backpackers Accommodation' 'waverley Local Environmental Plan 1996' 'relevance of Mental Condition to Sentencing' 'general Deterrence' 'costs']

Case Brief

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Procedural Posture

Class 4 Contempt Proceedings / Sentencing for Contempt of Court After Respondents Were Adjudged Guilty of Contravening Consent Orders

Legal Issues

  1. 1 ["What penalties should be imposed for the respondents' contempt in causing or permitting 6 Kent Street, Waverley and 34 Imperial Avenue, Bondi to be used for backpackers accommodation contrary to Court orders." 'Whether the seriousness of the contempts was mitigated by uncertainty about the meaning of "backpackers accommodation" in the Waverley Local Environmental Plan 1996 and by steps taken toward redevelopment.' "How Michael Rappaport's psychological and psychiatric condition should affect sentence." 'Whether the respondents had capacity to pay the fines proposed.']

Ratio Decidendi

The contempts were wilful and of moderate seriousness, caused significant harm to neighbourhood amenity, and required punishment and general deterrence, but they were not alleged to be contumacious, had been purged by redevelopment and compliance, and there was no likelihood of reoffending. Tovir's commercial benefit and capacity justified a $40,000 fine. Michael Rappaport's fine was heavily reduced to $4,000 because accepted psychological evidence showed that a heavy fine would significantly harm his rehabilitation.

Court Disposition

Respondents fined for contempt and ordered to pay the applicant's costs.

Orders

  • ['Respondent Tovir Investments Pty Ltd is fined $40,000 apportioned as $20,000 for its contempt relating to 6 Kent Street, Waverley and $20,000 for its contempt relating to 34 Imperial Avenue, Bondi.' 'Respondent Michael Rappaport is fined $4,000 apportioned as $2,000 for his contempt relating to 6 Kent Street,...