Blacktown City Council v Pearce

Judgment 1On 30 October 2012, I ordered Mr Pearce, who is the owner of residential land at 141 Piccadilly Street, Riverstone, to vacate the premises; fence the property to prevent intruders; demolish the buildings on the property; and remove and lawfully dispose of the demolition materials. The vacating and fencing of the property were ordered to be done forthwith and the demolition and removal of materials were ordered to be done within 120 days of my orders being made. I also ordered that Mr Pearce pay Blacktown City Council's costs of the proceedings in the agreed sum of $6,000 within 60 days of my orders: see Blacktown City Council v Pearce [2012] NSWLEC 270 at [21]. 2Mr Pearce did vacate the premises but he did not comply with any of the other orders, notably fencing the land, demolishing the buildings, removing the demolition materials, or paying the Council's costs by the due dates. 3The Council alleges that Mr Pearce's failure to comply with the Court's orders constitutes contempt in connection with the proceedings. The Council has applied, by notice of motion in the proceedings filed on 25 June 2013, for Mr Pearce to be punished for the contempt. The Council filed, also on 25 June 2013, with the notice of motion a statement of charge in a separate document. The statement of charge specified, with sufficient particularity, the contempt of which Mr Pearce was alleged to be guilty, namely, failing to comply with orders 5, 6, 7, 8, 9 and 10 of the Court's orders made on 30 October 2012. 4The Council filed evidence in support of the contempt charge in the form of two affidavits. The first was by the Council's solicitor, Mr D Loether, sworn 14 June 2013 and the second by a council officer, Ms D Relph, sworn 18 June 2013. Ms Relph states that she had received complaints from nearby residents about the noncompliance with the Court's orders and that she had inspected the property on 12 March 2013 and observed that no further clearing of vegetation had been undertaken and that the dilapidated dwelling remained on the site. 5The Council served the notice of motion, statement of charge and two affidavits on Mr Pearce personally. 6The notice of motion was originally first returnable before the Court on 5 July 2013 but this was vacated and relisted for 12 July 2013. On 12 July 2013, the Council and Mr Pearce appeared by their legal representatives before the Registrar. A hearing for the notice of motion for contempt was fixed for today, 1 October 2013, with a direction that a timetable be set by eCourt by 6 July 2013. 7On 17 July 2013, Mr C Bryett of AR Walmsley & Co, solicitors, filed a notice of appearance for Mr Pearce. 8There was a delay in setting the timetable preparing the matter for hearing. On 2 August 2013, the Council, by another notice of motion, sought leave to rely on an amended notice of motion and an amended statement of charge in the forms annexed to Mr Loether's affidavit of 2 August 2013. The essential differences were that the Council no longer alleged that Mr Pearce had failed to comply with orders 7 and 9, so that the orders which the Council alleged Mr Pearce had disobeyed were now alleged to be orders 5, 6, 8 and 10. 9Eventually, on 8 August 2013, the Registrar made orders in terms of the short minutes of order filed in court. The Council appeared by its barrister who also mentioned the matter on behalf of Mr Pearce's solicitor. The Registrar also granted the Council leave to file and serve the amended notice of motion and amended statement of charge by 12 August 2013. The Council dutifully filed and served the amended notice of motion and the amended statement of charge on 12 August 2013. 10The Council filed a further affidavit of Ms Relph sworn 15 August 2013 in which Ms Relph again states that she had received complaints from nearby residents about the premises and about Mr Pearce's noncompliance with the Court orders; she inspected the premises on 12 March 2013 and observed that Mr Pearce had not secured the property by perimeter fencing in a manner that would not permit intruders; the buildings on the property had not been demolished and the materials on the property had not been removed; and she inspected the premises again on 18 June 2013 and made the same observations as she had made on 12 March 2013. 11At the hearing of the notice of motion today, Mr Pearce is represented by counsel, Dr Berveling, instructed by Mr Bryett, solicitor. 12The Council read the affidavits of Ms Relph of 18 June 2013 and 15 August 2013, the effect of which I have summarised above, tendered a bundle of documents including my judgment, the Court's orders, the amended notice of motion and the amended statement of charge. Mr Nash, counsel for the Council, said that he was instructed that the Council had received a bank cheque in the sum of $6,000 last Friday that was likely to have been sent by Mr Pearce but they had not been able to verify that it was from Mr Pearce's bank account. 13Dr Berveling called Mr Pearce to give oral evidence. Mr Pearce confirmed that: