Cohen v Double Bay Bowling Club

Cohen v Double Bay Bowling Club - [2019] NSWSC 1625 - NSWSC 2019 case summary — Zoe

[4]

Judgment

In these proceedings the plaintiffs, Mr Gregory Cohen and Ms Mariela Sverdloff, allege that their property has been damaged by construction works carried out on neighbouring land owned by the first defendant, Double Bay Bowling Club (Club).
The second defendant, Brianda Pty Ltd, is the builder contracted by the Club to undertake the construction works (Builder). The third defendant, CF Group Piling Pty Ltd (CF Group), is the piling contractor engaged by the Builder.
On 27 June 2019, the parties reached an agreement which obviated the need for a hearing of the plaintiffs' claim for injunctive relief. The parties' agreement was recorded in an annexure to the consent orders and included, at paragraph 2, an undertaking given to the Court in the following terms: "The first and second defendants undertake to the Court that they will not recommence any works on the site in the nature of dewatering, excavation and slab pouring works until the works in 1. above have been completed and the preparation of the documents in 5. below."
The site referred to in the undertaking is the land owned by the Club at 42 Glendon Road, Double Bay.
By notice of motion filed on 3 September 2019, the plaintiffs seek orders that the Club and the Builder each be found guilty of contempt of court. They allege that the Club "arranged" and the Builder "carried out" excavation works in breach of the undertaking on three particular days and should be punished for criminal contempt.
By notice of motion filed on 21 September 2019, the Club seeks an order that the contempt motion be permanently stayed as an abuse of process.
Both notices of motion was listed before me for hearing on 1 October 2019. The evidence was completed on that day and the hearing was adjourned to allow the parties to provide written closing submissions and make final oral submissions on 18 October 2019.
Consistent with the approach adopted by the parties at the hearing and in closing submissions, I deal first with the contempt motion and then deal with the abuse of process motion.

[5]

Charges and evidence

The statement of charges in relation to the Club sets out three charges of contempt. The charges are that on each of 11 July 2019, 23 August 2019 and 29 August 2019, the Club arranged for excavation work to be carried out at the site located at 42 Glendon Road, Double Bay (Site) that was in breach of the undertaking given by the Club to the Court on 27 June 2019, as set out in paragraph 2 of Annexure A to the orders made on that date (Undertaking).
The statement of charges in relation to the Builder also sets out three charges of contempt, being that on each of 11 July 2019, 23 August 2019 and 29 August 2019 the Builder carried out excavation work at the Site that was in breach of the Undertaking.
The particulars to each contempt charge are the same for the Club and the Builder, and state as follows: (1) (in relation to the 11 July 2019 charge), Refer to the email from Vipul De Silva dated 11 July 2019 that is annexed at page 21 of the affidavit of Glenn Brian Crisp sworn 29 August 2019. (2) (in relation to the 23 August 2019 charge), Refer to paragraphs 13 and 16 of the affidavit of Glenn Brian Crisp sworn 29 August 2019 and the photos and videos referred to therein; and the further photos annexed to the affidavit of Glenn Brian Crisp sworn 3 September 2019. (3) (in relation to the 29 August 2019 charge), Refer to paragraphs 14 and 16 of the affidavit of Glenn Brian Crisp sworn 29 August 2019 and the photos and videos referred to therein; and the further photos annexed to affidavit of Glenn Brian Crisp sworn 3 September 2019.
In support of the contempt motion, the plaintiffs read four affidavits from the first plaintiff, Mr Gregory Cohen, sworn 13 June, 25 June, 5 September and 26 September 2019. When objection was made to the 13 and 25 June affidavits, the plaintiffs accepted they were only relevant to the abuse of process motion. Mr Cohen's 5 September 2019 affidavit annexes more than 250 screenshots from videos taken by him of the Site on various days, including on 11 July, 23 August and 29 August 2019.
The plaintiffs also read an affidavit from a geotechnical engineer employed by the plaintiffs, Mr Vipul De Silva, dated 6 September 2019.
The affidavits of Mr Crisp referred to in the particulars to the statement of charges were not read by the plaintiffs. No objection or submission was made by the Club or the Builder about this. The hearing proceeded, and I have approached these reasons, on the basis that: 1. the email from Mr De Silva dated 11 July 2019 referred to in the particulars to the 11 July 2019 charges is the email of that date annexed to Mr De Silva's affidavit affirmed 6 September 2019; 2. the photos referred to in the particulars to the 23 August 2019 charges are the screenshots at pages 103 to 179 to the affidavit of Mr Cohen sworn on 5 September 2019; and 3. the photos referred to in the particulars to the 29 August 2019 charges are the screenshots at pages 180 to 234 to the affidavit of Mr Cohen sworn on 5 September 2019.
The Club and the Builder read two affidavits from Mr Dennis Meskin affirmed 20 and 27 September 2019. Mr Meskin is the project manager of the construction works at the Site engaged by the Club. They also read an affidavit from Mr Jesse Gooch, the sole director of the Builder, sworn 23 September 2019. Mr Meskin and Mr Gooch's affidavits also annexed photos taken of the Site on various days, including on 11 July, 23 and 29 August 2019.
Mr Cohen, Mr De Silva, Mr Meskin and Mr Gooch were cross-examined at the hearing on 1 October 2019.

[7]

Factual matters

Most of the facts referred to below are not in dispute. Where there are disputes, the following facts should be taken as my findings beyond reasonable doubt.
The plaintiffs' property is situated at 31 Glendon Road, Double Bay (Property). The plaintiffs live there with their two young children.
The Club's Site is located to the west of the Property. The Site and the Property share a boundary.
On 3 January 2018, the Club received council approval to construct a two story attached dual occupancy building with basement parking for 4 to 5 cars on the Site (Development).
In October 2018, the Club appointed Mr Meskin to project manage the construction of the Development. It also entered into a contract for the Builder to undertake the residential building work for the Development.
On 5 February 2019, JK Geotechnics prepared a report for the Club on the geotechnical and hydrogeological monitoring program for the Development (JK Report). The JK Report identified (at pages 1 and 2) that: 1. excavation to a maximum depth of about 2m to 2.5m would be required for the Development; 2. groundwater was expected at shallow depth and dewatering of the proposed basement excavation would be required; 3. the Builder must prepare a Construction Method Statement prior to the commencement of excavation, which must include, but not be limited to, the proposed temporary excavation dewatering, the proposed excavation techniques, the proposed excavation equipment, the proposed excavation sequencing and the various inspection intervals and/or hold points outlined in the JK Report; 4. JK Geotechnics and the Structural Engineer for the Development must review and approve the Construction Method Statement prior to excavation commencing; and 5. construction of the proposed duplex and basement, including temporary dewatering, excavation, excavation support would require careful sequencing.
It is not in dispute that a Construction Method Statement, as referred to in the JK Report, was not prepared until 5 September 2019.
On 6 March 2019, the Builder entered into a contract with CF Group for the design and construction of a secant piling shoring wall, capping beams, shotcreting, dewatering and bulk and detailed excavation.

[8]

Initial excavation works

In March and April 2019, CF Group carried out the initial excavation works on Site down to levels of between 600 mm to 1200 mm below natural ground level.
The initial excavation works included digging trenches around the perimeter of the Site down to approximately 1200 mm to allow for the installation of foam pods and a concrete guide wall before the secant piling shoring wall could be installed (at [12] and photos at pages 1 - 6 of JG-1, Gooch affidavit dated 23 September 2019; at [13]-[15] and photos at tab 6 Meskin affidavit dated 20 September 2019). The foam pods were placed where the concrete piles were to be drilled. The concrete guide wall, which was approximately 600 mm high and was installed around the pods, was non-structural and intended to be demolished once the piles were drilled (at [16]-[18], Gooch affidavit dated 23 September 2019).
Following initial excavation and construction of the guide wall and pods, CF Group commenced the drilling for the installation of the 220 piles around the Site. The piles consisted of concrete with steel reinforcing and were installed to a depth of 10 m below the initial excavation levels. The tops of the drilled piles were above the level of the foam pods and concrete guide wall (at [16], Meskin affidavit dated 20 September 2019; at [20] and [22], Gooch affidavit dated 23 September 2019; photos at pages 11-13 of JG-1).
The initial excavation and pile drilling processes resulted in large quantities of excess soil, sand, dirt and clay. This excess material was referred to in the evidence and in the parties' submissions as 'spoil'. Where I use the term 'spoil' in these reasons, it connotes material that had been excavated or dug out from the initial excavation and/or pile drilling processes.
The spoil created from the initial excavation and pile drilling processes was used to fill in areas of the Site, including around the foam pods and guide wall. Spoil was used to provide support for the pouring of the guide wall and to form up the edge of the guide wall (at [19], [48] Gooch affidavit dated 23 September 2019 and page 7 of JG-1). It was also used to fill in areas around the Site to cover the tops of the drilled piles and to create a ramp for access for equipment (at [20] and photos at tab 7, Meskin affidavit dated 20 September 2019; T64:28-32; T72:11-31). Some spoil was also taken away from the Site (at [15], Meskin affidavit dated 20 September 2019; at [25], Gooch affidavit dated 23 September 2019).

[10]

Further works, correspondence and experts reports

After installation of the concrete piles, the next stage of works was the construction of a capping beam to provide lateral stiffening for the secant piling shoring wall. Prior to the installation of the capping beam, spoil and dirt from the top of the piles had to be removed and reinforcing cages and formwork for the capping beam had to be installed (at [21] and [22], Meskin affidavit dated 20 September 2019; at [31] - [32], Gooch affidavit dated 23 September 2019).
The capping beam was to be installed above the top of the guide wall, pods and pile tops, and would have the effect of raising the surrounding ground levels by around 600 mm (photos at tab 23 and email dated 12 July 2019 at tab 22, Meskin affidavit dated 20 September 2019).
On 6 June 2019, CF Group sent a letter to the Club in relation to the building of the capping beam. The letter attached two drawings. One of the drawings showed the location of the proposed capping beam, with the top of the wall being at RL3.05. The other was a hand drafted sketch and shows that the capping beam was to be installed on top of the level of the piles. Notes on the diagram stated that the pile spoil was to be removed from the Site and that the "Site will be levelled to top of pile level to commence capping beam works". The letter stated that removal of the pile spoil will not have any adverse effect or cause any movement of the shoring piles.
On 7 June 2019, the Club's solicitors wrote to the plaintiffs' solicitors about the capping beam works proposed to be undertaken at the Site. The letter noted that the works would involve some removal of spoil from the "piling injection located alongside the built piles" and states: "We do not regard those works as involving "excavation" within the meaning of order 6 [the piling restraint order] but for the avoidance of doubt we are writing to let you know that those works are proposed to commence on Wednesday, 12 June 2019."
The 7 June 2019 letter attaches an engineering assessment of the proposed capping beam works from Mr Marcio Portes, a civil and structural engineer retained by the Builder, which states "No excavation proposed on Site, only removal of spoils adjacent to the as built piles required to allow for the pile capping construction".
Mr De Silva prepared a report for the plaintiffs on the damage caused to the Property by the construction works, dated 12 June 2019 (tab 2, Ex 4). In the report, Mr De Silva opines that the basement construction on the Site should not continue without restoring support to the Property and that the critical activities that would cause further damage to the Property included the installation of the balance of the piles, dewatering and excavation of the basement (at [12.1]). Mr De Silva also opines that there was no provision of adequate support for the excavation of up to 1 m depth near the boundary of the Property and that the Council condition C12 appears to have been violated by that excavation (at [12.3]).
On 17 June 2019, the plaintiffs' solicitors wrote to the Club's solicitors alleging that excavation works had been undertaken on Site in breach of the piling restraint order as a result of 12 truckloads of spoil having been excavated and removed. The letter requests the Club and the Builder to cease excavation works immediately.
The Club's solicitors responded later that day asserting that the works were not excavation works but the removal of spoil produced by the piling works which was necessary to enable the capping beam works to be progressed on the Site. The letter also states that the Builder and CF Group had informed the Club that no further spoil would be taken from the Site until the capping beam was in place.
From around 20 June 2019, works were undertaken on Site to install the steel works and reinforce the cages and formwork for the capping beam, and to start pouring the capping beam (at [21] and tab 8, Meskin affidavit dated 20 September 2019). Works to remove the concrete guide wall also started (at [23], Meskin affidavit dated 20 September 2019).
On 24 and 25 June 2019, the parties' experts prepared joint reports dealing with the cause(s) of the damage to the Property and the general scope of works to remediate the damage.
In the joint geotechnical report dated 24 June 2019 (at tab 3 Ex 4), Mr De Silva and Mr Nicholas Smith, a geotechnical engineer from JK Geotechnics, agreed that: 1. the next stage of works at the Site would be the construction of the capping beam on top of the exposed piles which should restore support to the current unsupported excavated faces; 2. no further excavation was to be completed prior to capping beam construction; and 3. a construction method statement and water management plan needed to be prepared by CF Group prior to further works commencing on the Site.
In the joint structural engineers report dated 25 June 2019 (at tab 4 Ex 4), Mr Portis and Dr Mark Wu from Adams Consulting (on behalf of the plaintiffs) agreed that: 1. the initial strengthening works should be undertaken using a polymer injection system along the Property and designed by specialist contractor; and 2. the initial strengthening works could be completed concurrently with construction of the capping beams on Site, although prior to any dewatering or excavation works.

[11]

The 27 June agreement and Undertaking

On 27 June 2019, the hearing of the plaintiffs' claims for relief, save for damages, was vacated as a result of an agreement between the parties (27 June agreement) and the making of consent orders by the Court.
The consent orders discharged the piling restraint order and also dismissed the plaintiffs' claim for final relief that the Club and the Builder be permanently restrained from carrying out any further piling involving impact hammering, dewatering or excavation work at Site until the damage to the Property was repaired.
The Court noted the terms of the 27 June agreement, including the Undertaking given to the Court (at paragraph 2), at Annexure A to the consent orders. The 27 June agreement is in the following terms: "Without admissions: 1. The first and/or second defendants will at their cost procure that, as soon as practicable, strengthening works in accordance with the recommendations in the joint reports prepared by Mr Smith and Mr De Silva on 24 June 2019 and Mr Portes and Dr Wu on 25 June 2019 will be undertaken to the foundation below the western wall, and the full length of the northern wall, of the plaintiffs' property. Those strengthening works will be in the nature of injected products, likely to consist of the injection of geopolymers and/or jet grouting into the ground underneath the plaintiffs' property. The strengthening works will be undertaken by a contractor to be notified to the plaintiffs. The detail of the initial strengthening work is to be designed by a specialist contractor and reviewed and approved (acting reasonably) by Dr Wu and Mr Portes. 2. The first and second defendants undertake to the Court that they will not recommence any works on the site in the nature of dewatering, excavation and slab pouring works until the works in 1. above have been completed and the preparation of the documents in 5. below. […] 4. On and from completion of the works in 1. above, and provided that Mr Smith of JK Geotechnics and Mr De Silva of Construction Sciences (acting reasonably) confirms that the works referred to in 2. above can proceed, the plaintiffs acknowledge that the first and/or second defendants will be at liberty to undertake those works on the Club's property. 5. The first and/or second defendants will at their cost procure the preparation of a construction method statement and dewatering management plan prior to the works referred to in 2. above commencing on site, in accordance with the requirements of the JK Geotechnics Geotechnical and Hydrogeological Monitoring Program and any relevant development consent conditions, such documents to be reviewed and approved by JK Geotechnics, and provided to Mr De Silva of Construction Sciences, prior to works commencing."
Pausing here, it is not in dispute that the strengthening works referred to in paragraph 1 of the agreement (which are sometimes referred to by the parties as the "underpinning works") did not require the removal of spoil or any excavation works. As noted above, the Construction Method Statement referred to in paragraph 5 was not prepared until 5 September 2019.
No works were carried out on the Site for a period of about two weeks after the Undertaking was given to the Court (T52:29-36).
On 8 July 2019, the Club's solicitors sent a letter to the plaintiffs' solicitors about works proposed to be undertaken on Site. The 8 July letter is not in evidence but another document in evidence refers to the proposed work as "excavating" to "500 mm to 600 mm along the boundary between the Site and the Property to install braces beneath the capping beam over the already installed piles" (letter dated 9 July from Mr De Silva to the plaintiffs' solicitors at tab 21, Meskin affidavit dated 20 September 2019).
In a letter to the plaintiffs' solicitors dated 9 July 2019, Mr De Silva commented on the proposed works and stated that he needed further details to form a complete view as to whether or not "the proposed excavation works will cause further cracking". The letter also states that "no further work involving excavation should be carried out prior to the underpinning works on the Property, even for the purposes of bracing the capping beam".
On 10 July 2019, Mr De Silva sent an email to the plaintiffs' solicitors about the proposed works, which he refers to as the proposal for the "500 to 600 mm deep spoil removal from the Site close to the boundary between the Site and the Property". The email states that: "3. If spoil is located next to the boundary, and "removal of spoil" removes the soil support to the foundation of dwelling at No 31 as defined by me in my report, such an operation has the same effect as excavation. This applies even if the spoil has been previously excavated from undisturbed ground later placed on the excavation, as it provide support. 4. If by spoil removal they are removing soil, previously not excavated, that would also be assessed as excavation."

[12]

Works on 11 July 2019

At around 7.30am on 11 July 2019, an excavator was delivered to the Site and works recommenced (at [54], Meskin affidavit dated 20 September 2019). The excavator was on caterpillar tracks, had a cabin for a driver to sit in and a bucket at the end of a mechanical arm which could dig and scoop dirt, rock and other material from the Site.
At around 9.34am, the plaintiffs' solicitors sent a letter to the solicitors for the Club and the Builder asserting that removing 500 - 600 mm of spoil from the Site constitutes excavation works, is a breach of the Undertaking and requested an undertaking from the Club and the Builder not to carry out excavation works for the bracing of the capping beams in any capacity of any sand, spoil or dirt, by 5pm that day. The letter attached copies of Mr De Silva's letter dated 9 July and his email dated 10 July.
Between 9.58am and 10.14am, the excavator dug and scooped out earth on Site (photos at pages 13 to 25, Cohen affidavit dated 5 September 2019). By 10.48am, the excavator had dug out earth from the tops of some drilled piles (photos at tab 20, Meskin affidavit dated 20 September 2019, CB1426 - CB1428).
Mr Gooch and Mr Meskin were on Site by around 10.40am.
Sometime during the morning, Mr Cohen and Mr Meskin met and had a discussion about the works being carried out on Site. Mr Meskin informed Mr Cohen that the works involved installing the bracing beams. He also showed Mr Cohen the intended location of the bracing beams around the Site on a diagram.
Between 11.21am and 1.05pm, the excavator was used to dig, scoop out and level earth on Site (photos at pages 54 to 90, Cohen affidavit dated 5 September 2019).
At around 12.30pm, Mr De Silva arrived on the Site and had a discussion with Mr Meskin about the works that were taking place. The evidence of Mr Cohen and Mr Meskin differs as to whether Mr Cohen was present during the discussions between Mr Meskin and Mr De Silva and what was said. I accept that Mr Cohen was present during at least part of the discussion as his presence is consistent with Mr De Silva's email dated 11 July 2019 at 4.55pm which refers to a visit to the Site with Mr Cohen and Mr Meskin.
Mr Meskin informed Mr De Silva that the works were for the installation of the steel bracing of the capping beam. There is evidence from Mr De Silva, which I accept, that he was told that the bracing beam was to be placed at a certain depth below ground level.
I also accept Mr De Silva's evidence that he observed the excavator using a large bucket to dig near the proposed driveway and that he measured the depth that had been dug away from the top of the concrete pile to be around 900 mm.
Mr De Silva's evidence is consistent with the evidence of Mr Meskin and Mr Gooch that the excavator was used on 11 July 2019 to dig a hole down to a depth of between 900 mm to 1200 mm in order to expose the existing pile tops and enable the bracing beam to be installed (T70:39-49; at [54] - [56], Meskin affidavit dated 20 September 2019; at [49] and [52], Gooch affidavit dated 23 September 2019).
There is also evidence, which I accept, that on 11 July 2019: 1. the excavator was used to dig and move earth to create an earthen ramp on Site to enable the excavator to access areas along the boundary of the Property (T72:11-31); 2. the excavator and a jackhammer was used to break up the concrete guide wall on the southern end of the Site (T53:34-40; T54:15-28; at [54] - [56], Meskin affidavit dated 20 September 2019;); and 3. the excavator was used to level the land along the boundary of the Site and the Property around the cavity of the guide wall which had been removed (T55:49 - T56:12).
At 3.04pm, the excavator was no longer in use on the Site.
There is evidence from Mr Gooch, Mr De Silva and Mr Meskin, which I accept, that what was dug up, moved around and levelled on Site by the excavator on 11 July 2019 was spoil (at [49] and [52], Gooch affidavit dated 23 September 2019; T43:32-15; at [54]-[56], Meskin affidavit dated 20 September 2019).
At 4.55pm, Mr De Silva sent an email to the plaintiffs' solicitors summarising his observations on his visit to the Site. Mr De Silva describes some of the works he observed as "excavation works". He notes that the works did not show groundwater seepage and were "unlikely to cause further damage provided that good building practice was followed as recommended by JG [sic] Geotechnical report of July 2016 is followed".
Later that day, the Builder's solicitors responded to the plaintiffs' solicitors' letter that had been sent that morning. The Builder's solicitors asserted that the capping beam works were being completed to mitigate any damage, the Builder was not conducting any further excavation works on site and only spoil from existing piles had been removed. The letter also asserts that Mr De Silva did not take issue with the Builder working on the capping beam and that the Builder had complied with Mr De Silva's request to leave the guide wall in place near the boundary of the Property.

[14]

Works on 29 August 2019

From 8.43am to around 12.40am, the excavator was used to dig down to a depth of about 600 to 700 mm in one corner of the Site. The excavator was also used to move earth around the Site to create a ramp (T71:27-40; T72:7-13; T72:33-39; photos at pages 180 - 201, Cohen affidavit dated 5 September 2019).
Twelve truckloads of material were removed from Site on 29 August 2019 (photos at pages 202 - 234, Cohen affidavit dated 5 September 2019; Ex B).
There is evidence from Mr Gooch and Mr Meskin, which I accept, that what was dug up and removed from the Site on 29 August 2019 was spoil (at [77], Meskin affidavit dated 20 September 2019; T77:1; T78:44-49).
The plaintiffs argued that there is evidence that soil (as opposed to spoil) had been excavated and removed from Site by CF Group on 29 August 2019. They rely on an email from CF Group to Mr Meskin and Mr Gooch dated 30 August 2019 which refers to the removal of 144 ton of GSW (general solid waste) from the Site on 29 August 2019 "after written confirmation to start excavation from Jesse (Mr Gooch) to Raja (an employee of CF Group)" and a theoretical amount of piling spoil of around "500 ton". They argue that, when combined with the other amounts of soil and spoil referred to in the email, the Court should conclude that 144 tons of soil was excavated and removed from Site on 29 August 2019. The plaintiffs also rely on an email exchange between Mr Gooch and CF Group during the period 29 August 2019 and 19 September 2019 in which Mr Gooch refers to "minor excavation below the bottom of the guide wall…when you loaded out the stockpile as 12 truckloads were more than one stockpile on site".
I am not satisfied that the plaintiffs have demonstrated beyond reasonable doubt that 144 tons of soil was dug up on Site on 29 August 2019.
The plaintiffs' submission requires the Court to draw inferences from the contents of the 30 August email for which there are other explanations. The 30 August 2019 email was also not put to Mr Meskin or Mr Gooch in cross-examination and so they were unable to respond or seek to explain it.
Even if the 30 August email is evidence that 144 ton of waste was removed from Site on 29 August 2019, it does not lead to the conclusion that it was the result of digging or excavation of soil on that same day. The waste could have been stockpiled from works carried out on 23 August, or some other day. Nor does the reference in the email to "GSW" (which the parties accept refers to general solid waste) necessarily refer to soil that had been dug up or excavated that day.
The email exchanges between Mr Gooch and CF Group at Exhibits B and C also indicate that Mr Gooch instructed CF Group to remove two truckloads of spoil on 29 August 2019 and that his instruction to commence excavation works was given on 5 September 2019, the date on which the Construction Method Statement was prepared. The reference in the email from CF Group of 29 August 2019 to "excavated and levelled to RL 2.35" also appears to relate to future works, rather than those that took place that day.
During cross-examination, Mr Gooch also referred to the existence of a survey which, while not in evidence, casts doubt on the assertion that soil was dug up or excavated on 29 August 2019.
The evidence of Mr De Silva, who was asked to assess whether the works carried out on 29 August amounted to excavation by reference to a video taken that day, is also inconclusive. In his email to the plaintiffs' solicitors dated 29 August 2019 (Ex 2), he was unable to say whether "excavated materials removed had been stockpiled at a level below the surrounding level at a previous time" and acknowledged that they could have "carried out excavation some time earlier". Mr De Silva also accepted in cross-examination that he could not certify whether excavation happened on 29 August 2019 (T49:23-24).

[17]

Legal principles

An undertaking given to the court can only be enforced by committal for contempt if it is expressed in clear, certain and unambiguous language: Rafailidis v Camden Council [2015] NSWCA 185 at [46].
If on a plain reading, objectively construed, a court order or undertaking is of uncertain or ambiguous meaning, there will be no contempt for a failure to obey it because what is required for compliance cannot be identified: Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 (Pang v Bydand Holdings Pty Ltd), at [52] and [57].
An undertaking may be uncertain or ambiguous where the terms are really not clear; the terms are such that a person reasonably trying to obey them would not know what they meant; the person required to comply with the undertaking could be in real doubt as to what the undertaking meant; or the terms of the undertaking could mislead the person bound upon a plain reading of its words: Pang v Byland at [56]; Kirkpatrick v Kotis [2004] NSWSC 1265, (Kirkpatrick v Kotis) at [54]; Spokes v Banbury Board of Health (1865) 1 Eq 42 at 48-49.
An undertaking may be enforced if it bears a meaning which the Court is satisfied is one which ought fairly have been in the contemplation of the alleged contemnor as a possible meaning. But a person cannot be found guilty of contempt if they are in breach of only one of two possible constructions of an undertaking: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 515-516 (Australian Consolidated Press Ltd v Morgan); Pang v Bydand Holdings Pty Ltd, at [52].
There is a distinction between an undertaking the terms of which are ambiguous and an undertaking which is difficult to construe. If the Court concludes that an undertaking is not ambiguous and can construe it as having one proper construction, a lack of understanding of the terms according to its true meaning nor lack of awareness that the conduct constituted a contempt does not mean that a person cannot be found guilty of contempt: Pang v Bydand Holdings Pty Ltd at [53] and [57]; Microsoft Corporation v Marks (1996) 69 FCR 117; (1996) 139 ALR 99 at 121.
The proper construction of a court order or undertaking given to the court is a question of law, not a matter of fact: ASIC v Matthews [2009] NSWSC 77 at [5] - [6]; citing Metcash Trading Ltd v Burn (No 5) [2009] FCA 16.
Surrounding circumstances of the kind which can be used to construe a contract, in accordance with the principles identified in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352, can be used to construe an undertaking given to the court: Kirkpatrick v Kotis, at [45].
The surrounding circumstances include the nature of the dispute between the parties, any other orders made at the time the undertaking is given and correspondence in existence and known to the parties at that time, but not the subjective intentions and expectations of the parties: Pang v Bydand Holdings Pty Ltd, at [59]; Rogers v Wentworth (NSW Court of Appeal, 18 April 1988, unreported) at [6]-[7]; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, at 352.

[19]

Submissions of the Club and the Builder

The Club and the Builder submit that the Court should construe the Undertaking as being limited to excavation required for the construction of the basement garage, which entailed excavation works below the level excavated in March/April 2019 of 1.2 m down to a depth of about 2.5 m below natural ground level.
They submit that their construction is supported by the terms of the Undertaking and the surrounding circumstances at the time.
In relation to the terms of the Undertaking, the Club and Builder argue that the word "excavation" takes meaning from the surrounding words of "dewatering" and "slab pouring" which are activities that only relate to the next stage of basement construction.
They also submit that the Undertaking must be construed having regard to the overall intention behind the 27 June agreement, which was to prevent the recommencement of particular works which had the potential to cause further damage to the Property until the strengthening works in paragraph 1 had taken place and the documents in paragraph 5 had been prepared. They submit that the works which would cause damage were those involved in the basement construction phase, not the digging and removal of spoil above levels which had been reached in March/April 2019, and point to Mr De Silva's 12 June report which identifies that excavation of the basement was a critical activity likely to cause further damage.
In support of their submission that the Undertaking relates to the basement excavation works only, the Club and the Builder rely on the JK Geotechnics report and the requirement to prepare a dewatering management plan under paragraph 5 of the 27 June agreement. They contend that the terms of the JK Geotechnics report and the very requirement to prepare a dewatering management plan supports reading the reference to excavation works in the Undertaking as relating to the basement excavation which involves the dewatering process, rather than any digging up of soil on the Site.
The Club and the Builder also rely on the joint experts' reports from 24 and 25 June 2019, in which the experts agreed that capping beam works could be undertaken concurrently with the strengthening works and assist in remedying damage to the Property. They submit that analysis of the expert evidence reveals that the prohibited works the subject of the Undertaking were intended to be limited to the basement excavation/dewatering works only.
The Club and the Builder also argue that, even if the Undertaking is not limited to basement excavation works, the removal of spoil does not comprise excavation within its ordinary meaning. They point to the evidence of Mr De Silva which, they submit, is to the effect that the removal of spoil does not comprise excavation works.
They also argue that the ordinary meaning of excavation does not extend to digging up previously disturbed soil, relying on the comments of Campbell J in Kirkpatrick v Kotis, at [64].
They submit that their meaning and the surrounding circumstances suggest that it was not within the parties' contemplation that the removal of spoil from above the level previously excavated would be caught by the Undertaking.
The Club and the Builder submit that their construction of the Undertaking being limited to basement excavation is the correct one and is to be preferred over that of the plaintiffs. But they also argue that a finding beyond reasonable doubt that the Undertaking has not been complied with is not open to the Court as their interpretation of the Undertaking and meaning of excavation are reasonably open.
In the alternative, they submit that the Undertaking is ambiguous because of the doubt as to whether excavation includes digging up previously excavated spoil without altering the level of the land, meaning that they cannot be held in contempt of Court.
They do not dispute that an excavator was used on Site to dig and remove 'spoil' on each of the relevant days but contend that such works were not excavation works within the meaning of the Undertaking.

[20]

Construction of the Undertaking

The parties' submissions raise questions as to what the Undertaking required on its true construction and whether that requirement was sufficiently clear to the Club and the Builder to support enforcement of the Undertaking against them: Rafailidis v Camden Council [2015] NSWCA 185 at [45]; Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317 at [27].
In relation to the question of construction, the starting point is the words used in the Undertaking itself. In general terms, they provide for a commitment by the Club and the Builder not to recommence carrying out particular types of works on Site for a period of time before certain steps took place.
Specifically, the words of the Undertaking obliged the Club and the Builder not to recommence three types of works on Site - namely, dewatering, excavation and slab pouring works - until the strengthening works to the Property (per paragraph 1 of the 27 June agreement) were complete and the construction method statement and dewatering plan (per paragraph 5 of the 27 June agreement) were prepared. It was not a prohibition on any works being carried out on Site at all.
The Club and the Builder do not contend that the Undertaking should be read as only prohibiting the recommencement on Site of works in the nature of excavation when carried out together and at the same time with dewatering and slab pouring works. Their submissions, and those of the plaintiffs, are based on a reading of the Undertaking which accepts that the Club and the Builder were prohibited from recommencing works in the nature of excavation irrespective of whether works in the nature of dewatering and slab pouring had also recommenced.
The difference between the parties is whether the reference to excavation in the Undertaking was limited to excavation works required to construct the basement garage at depths below levels previously excavated that did not involve digging up spoil, as contended by the Club and the Builder, or any works in the nature of excavation unconfined by the nature and purpose of the works, as the plaintiffs argue.
In my view, the construction advanced by the plaintiffs is correct as it reflects the plain and unambiguous language of the Undertaking as well as the relevant surrounding circumstances. This is for the following reasons.
First, I do not accept the submission of the Club and the Builder that the Undertaking should be construed as being limited to basement excavation works because the surrounding words of "dewatering" and "slab pouring" are activities that relate to works which will be carried out as part of the construction of the basement. In my view, the surrounding words identify the other types of works which the Club and the Builder were prohibited from carrying out, rather than operating to limit the meaning or purpose of excavation.
The Undertaking is unconfined in its language as to the nature and purpose of the excavation works which were not to be recommenced. It is to be contrasted with the terms of the piling restraint order made on 5 June 2019 which restrained the Club and the Builder from carrying out any further piling involving impact hammering, dewatering and excavation works. In terms, the 5 June order did not restrain the carrying out of all excavation works but only those which were for the purpose of or in connection with piling works.
Second, the construction of the Undertaking advanced by the Builder and the Club is at odds with the breadth of the language used in the Undertaking.
The Undertaking requires the Builder and the Club to refrain from recommencing any works on the Site in the nature of dewatering, excavation and slab pouring works.
The words "any works" and "in the nature of" broaden rather than narrow the scope of the works which are the subject of the restraint. They have the effect of obliging the Builder not to recommence all works that have the essence, quality or character of the works referred to in the Undertaking, relevantly in this case excavation works, even though they may not be excavation in a technical sense.
The character and essence of excavation is the digging out of earth or other material to create a hole, trench or other hollow which lowers or levels the ground: Kirkpatrick v Kotis, Campbell J at [64]; Mills v Caravonica Pty Ltd; Ex parte Mills (1992) 81 LGERA 369, Pincus JA at 373.
While Mr De Silva's email of 10 July 2019 could be read as suggesting that removal of spoil may not amount to excavation in a technical sense, he also gave evidence, which I accept, that digging a trench or creating a void from an area which has been backfilled is excavation (T46:25-31). He also gave evidence, which I accept, that the purpose of his 10 July email was to assess whether the proposal to dig to a 500 mm to 600 mm depth along the boundary between the Site and the Property to install braces was likely to cause damage to the Property, rather than whether it involved excavation works within the meaning of the Undertaking (T45:42-50). His 10 July email is also in terms that encompasses works in the nature of excavation, given it refers to works that "has the same effect as excavation".
Third, the meaning of works in the nature of excavation for the purposes of the Undertaking is, in my view, not determined by the particular type of material which is dug up, such as spoil, concrete, soil or some other material from the ground. Rather, it is determined by the relevant act of digging and what results from that act, being a hole, a trench or some hollow on the Site which lowers the level of the ground.
The Club and the Builder rely on Campbell J's reference in Kirkpatrick v Kotis, at [64], to excavation being "capable of referring to not only the process which actually cuts solid rock or digs up previously undisturbed soil" as suggesting that the digging up of spoil does not come within the meaning of excavation. I do not accept that submission.
The reference to previously undisturbed soil has to be considered in the context of his Honour's ultimate conclusion, which was that removing loose soil and rocks from the floor of the excavation site as part of a cleaning up process lowered the level of the land and amounted to excavation (at [31], [70] and [71]). It also needs to be considered in the context where his Honour accepted that the outer bounds of the ordinary meaning of the word excavation includes to dig or scoop out earth, and to take out earth leaving behind land which is flat. It refers to the entire process by which a hole in the ground is achieved and can extend to the excavation of material that is not bound together (at [63] and [64]).
Further, in Kirkpatrick v Kotis, his Honour was not dealing with an Undertaking which prohibited "any works…in the nature of…excavation", nor a factual situation where earth (spoil) and other material had been used to re-fill previously excavated areas of a site.
The evidence demonstrates that spoil, concrete (being remnants of the guide wall), loose earth and other material (such as the pods) had been used to fill in, backfill and cover over parts of the Site. This had the consequence that, at the date the Undertaking was given, some areas of the Site were higher (by up to 1200 mm) than they were after the initial excavation works were completed in April 2019. Relevantly, some of the spoil had been used to backfill previously excavated areas in order to provide support for the guide wall and along the boundary of the Site and the Property.
The evidence also demonstrates that areas on Site which had been filled in with spoil were intended to be, and were, lowered by digging and removing spoil from 11 July onwards.
I am, therefore, not persuaded by the submission of Builder and the Club that spoil was dug up and removed from only above "existing ground levels". Nor do I accept the submission that subsequently digging up spoil (which was previously disturbed soil or sand) that had been used to fill in, backfill or cover over parts of land is not in the nature of excavation.
Fourth, I do not accept that the context in which the Undertaking was given and the surrounding circumstances are inconsistent with, or sufficient to contradict, the plain language of the Undertaking and the other terms of the 27 June agreement, which do not refer to basement excavation or excavation for that purpose.
The Undertaking was given in the context where the initial excavation works were the cause of damage to the Property and the plaintiffs had initially sought final relief that the defendants be restrained from carrying out any further construction work on the Site. I have already commented on the terms of the piling restraint order, which was discharged by the making of the consent orders on 27 June.
The consent orders and the 27 June agreement (of which the Undertaking was part) represented a compromise of the plaintiffs' claim for injunctive relief and an acceptance that certain works on Site would not continue until steps were taken to deal with the risk of future damage to the Property. Those steps included completing strengthening works (paragraph 1), confirmation from experts as to the completion of those works (paragraph 4) and preparing certain documents (paragraph 5).
I accept that the some of the evidence suggests that, when the Undertaking was given, the parties were aware that dewatering and basement excavation works were most likely to cause further damage to the Property (at [12.1], De Silva 12 June report), and the joint experts had agreed that undertaking the capping beam works might assist in avoiding further damage and could be undertaken concurrently with the strengthening works to the Property.
But the Club and the Builder's interpretation of the Undertaking as being limited to basement excavation does not recognise that other works in the nature of excavation may also have risked further damage to the Property, such as digging and removing spoil which provided support or removing the guide wall along the boundary of the Site and the Property before the strengthening works were complete.
If the parties intended for the Undertaking to be limited to basement excavation, it is to be expected that they would have used the word "basement", like they did with the reference to "piling" in the piling restraint order. Similarly, if the parties intended for the capping beam works to be carried out and not subject to the restrictions in the Undertaking, it is to be expected that the 27 June agreement would have provided for them to be carried out, as they did in respect of the strengthening works in paragraph 1.
I also do not accept the submission that the terms of the other documents referred to in the 27 June agreement mean that the Undertaking should be construed as being limited to excavation works for the purposes of the basement excavation.
The JK Geotechnics report referred to in paragraph 5 of the 27 June agreement is not expressed as being exclusively about basement excavation, as the Club contends. Rather, it refers to the entire excavation process on Site (of which the basement excavation is one part), down to a maximum depth of 2 - 2.5 m, and the need for a construction method statement prior to the commencement of excavation.
The dewatering plan, as required by paragraph 5 of the 27 June agreement, is also explicable as being needed for the dewatering works, rather than for excavation works.
The joint expert reports also refer to excavation in more general terms than basement excavation (see at [2], joint geotechnical experts report dated 24 June 2019; and at [1.b], joint structural engineers report dated 25 June 2019). They were also prepared for the purpose of identifying the cause of damage to the Property and the works to remediate the damage.
As to the CMS, it was prepared on 4 September 2019 - well after the Undertaking was given, and its terms are not relevant to the proper construction of the Undertaking. In any event, its contents are not limited to basement excavation but refer to other works, including bracing the capping beams and the risk of damage from excavation.
Fifth, while regard may be had to the surrounding circumstances, orders and undertakings are generally framed with a view to being self-contained and self-explanatory: Athens and Anor v Randwick City Council [2005] NSWCA 317 at [29], [140]. The interpretation of the Club and the Builder goes beyond the language of the Undertaking and the terms of the 27 June agreement and relies on inferences to be drawn from other documents and evidence of the subjective views of the parties as to what they thought excavation meant.
On a proper construction of the Undertaking, using an excavator to dig earth or other material (such as spoil or concrete) to create a hole, trench or other hollow on Site which lowered or levelled the ground amounted to works in the nature of excavation which were prohibited by the Undertaking until the strengthening works and documents prepared in accordance with paragraphs 1 and 5 of the 27 June agreement.

[21]

No alternative construction or ambiguity

The Club and the Builder argue that the parties did not contemplate that removing spoil from above the level previously excavated or carrying out the capping beam works would be caught by the Undertaking, thereby supporting their submission that an alternative construction of the Undertaking is reasonably open (namely that the Undertaking does not prohibit digging up spoil).
As noted above, I do not accept the submission that the type of material dug up determines whether works were in the nature of excavation and caught by the Undertaking.
As to the capping beam works, I accept that they may have been carried out for the purpose of restoring support to the Property based on what the joint experts agreed. But even if the works were carried out for that purpose, they may have involved works in the nature of excavation within the meaning of the Undertaking.
Those who give undertakings to a court are bound by the language they use if the meaning is clear and unambiguous and can be ascertained by ordinary rules of construction: Australian Consolidated Press Ltd v Morgan, at 503.
If there was an inconsistency between the capping beam works that the parties considered the experts had agreed on and the works which were not to be carried out because of the Undertaking, the obligation was to comply with the Undertaking to the Court. It was, of course, open to the parties to bring the matter back to Court and modify the 27 June agreement and the Undertaking: Kirkpatrick v Kotis, at [71] - [72].
I accept the evidence of Mr Gooch, on behalf of the Builder, that he had a different view as to the meaning of excavation and that he considered that the capping beams works had been agreed by the experts and were required to be carried out (at [50] - [53], [58], [63], Gooch affidavit dated 23 September 2019). This view accords with Mr Meskin's, which was that excavation did not involve the removal of spoil or digging at levels above those reached during the initial excavation (T64:28-45; T66:26-30).
It seems to me that Mr Gooch and Mr Meskin's views were based on certain presumptions about what works could be carried out based on a narrow and technical interpretation of the word excavation, which does not reflect the broad language of the Undertaking. In my opinion, those views represent a misunderstanding of the terms of the Undertaking according to its true meaning: Microsoft Corporation v Marks (1996) 69 FCR 117; (1996) 139 ALR 99, at 121.
In any event, their subjective views as to the meaning of excavation in the Undertaking are not relevant to the proper construction of the Undertaking, although the fact that they construed the Undertaking erroneously may be highly relevant to any penalty: Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110; [2006] FCAFC 41, at [38].
In my view, the language of the Undertaking is open to a sensible and plain reading and the words "any works in the nature of…excavation" are not, of themselves, apt to mislead: Pang v Bydand Holdings Pty Ltd at [56]; Microsoft Corporation v Marks (1996) 69 FCR 117; (1996) 139 ALR 99, at 121.
It follows that I also do not accept that there is some inherent ambiguity in the meaning of excavation. The Undertaking was sufficiently clear to the Club and the Builder to support enforcement.

[27]

Submissions

The plaintiffs' case against the Club proceeds largely on the basis that the Club is guilty of contempt of court because excavation works (as alleged) were carried out on Site on each of the relevant days and, as the party ultimately responsible for the Site, the Club arranged for the works to be carried out.
The plaintiffs argue that Mr Meskin (as project manager and agent of the Club) made decisions about the works to be carried out on Site by reference to or in consultation with the Club's Chairman, Mr Barry Lazarus. They rely on emails which they say show that Mr Meskin sought instructions from Mr Lazarus and that the Club gave instructions to him as to the recommencement of works. They also rely on a discussion between Mr Cohen and Mr Meskin on 11 July 2019 which they say indicates that Mr Meskin had received instructions from Mr Lazarus to recommence excavation works on that day.
The Club submits that the contempt charges against it should be dismissed.
The Club contends that the charges do not sufficiently identify what the Club did to "arrange" the excavation works to be carried out on each of the relevant days. It also submits that the charges are inadequately particularised as they fail to allege that the conduct relied by the plaintiffs is that of Mr Meskin, as agent of the Club.
The Club also contends that the plaintiffs have failed, on the evidence, to establish the necessary elements of the charges, namely that on each of the relevant days, the Club itself, and not through an agent, arranged for the carrying out of the relevant works on Site, as alleged in the statement of charges. It submits that the evidence establishes that the Builder, and not Mr Meskin, was in charge of the works being carried out on the Site. It also submits that the evidence does not establish that the Club itself, or through Mr Meskin, engaged in some positive act on each of the relevant days to directly or indirectly cause the works to be carried out.
The Club also argues that the charges are not made out for reasons relating to the nature of the excavation works and the proper construction of the Undertaking.

[28]

Consideration and determination

A statement of charge must provide particulars of the alleged contempt so as to identify precisely the acts or omissions said to constitute the contempt. A person charged with contempt must be left in no doubt as to what breaches are alleged and what is said to constitute the particular course or kind of conduct that entails disobedience of the Court's orders: McDonnell v Novello [2006] NSWSC 1186 at [26]; Matthews v ASIC [2009] NSWCA 155 at [46]; Pisano v Dandris [2015] NSWSC 1219 at [9].
In this case, the charges in relation to the Club are that on each of the relevant days the Club arranged for excavation works to be carried out at the Site in breach of the Undertaking.
It is, therefore, necessary for the charges against the Club to identify not only what works are alleged to be excavation works in breach of the Undertaking but also the conduct of the Club, or those on behalf of the Club, which is said to constitute the acts of "arranging" for the works to be carried out.
Rather than identifying the person/s from or on behalf of the Club that took action to arrange the works, what action was taken and to whom the action was directed, the charges comprise a general assertion that the Club arranged the carrying out of excavation works in breach of the Undertaking.
The particulars to the first charge refer to the email from Mr De Silva dated 11 July 2019. That email sets out Mr De Silva's observations as to the nature of the works being undertaken based on his visit to the Site between 12:30pm and 1:30pm that day and his meeting with Mr Meskin and Mr Cohen.
While Mr De Silva's 11 July email includes a reference to information having been provided to him while on Site, the information relates to the type of and reasons for works being undertaken. The email does not refer to any direction or instruction having been given by the Club on that day to arrange for "excavation" works to be carried out. Nor is there any reference in the email to Mr Meskin, on behalf of the Club, instructing or directing the Builder or CF Group to carry out the works referred to in the email.
The particulars to the second and third charges are even more remote as they merely make mention of photographs and videos referred to and annexed to the affidavits of Mr Crisp sworn 29 August and 3 September 2019 which, as noted above, were not read on the contempt motion. Accepting that the particulars can be taken to refer to the photographs that form part of Mr Cohen's 5 September affidavit and show some works being carried out on Site on 23 and 29 August, they do not identify any person from or on behalf of the Club on Site, or particularise any act or conduct of the Club by which constitutes arranging for the works to be carried out.
I accept the Club's submission that the charges are inadequately particularised. The charges fail to put the Club on notice in any informative way as to the particular acts of the Club, on each of the relevant days, which are alleged by the plaintiffs as being those that constituted arranging for the excavation works to be carried out in breach of the Undertaking.
I am also not satisfied that the evidence relied on by the plaintiffs establishes, beyond reasonable doubt, that on each of the relevant days the Club arranged for the carrying out of excavation works on each of those days as charged.
As the Club submits, the word "arrange" requires some action. To arrange means to put in place, to plan or settle beforehand the details of (something to be done), to give instructions for, or to cause to take place (Shorter Oxford English Dictionary (Oxford University Press, 5th ed, 2002); Shaw v Yarranova Pty Ltd (2006) 15 VR 289; [2006] VSCA 291 at [55]).
To succeed with their case, the plaintiffs must satisfy the Court, beyond reasonable doubt, of evidence of some positive act by the Club on each of the relevant days, such as a direction or instruction having been given, for the recommencement of excavation works.
In relation to 11 July 2019 charge, the plaintiffs rely on Mr Cohen's evidence of a conversation he had with Mr Meskin as evidence that the Club (Mr Lazarus), by its agent (Mr Meskin), arranged for excavation works to be carried out on 11 July. Mr Cohen deposes that Mr Meskin said to him "We're carrying on. Barry (Mr Lazarus) told me we're carrying on so we're carrying on…He's my boss…If my boss tells me to stop I stop".
Apart from its hearsay quality and my ruling that it was not admissible as to its truth, Mr Cohen's evidence of that part of the conversation is denied by Mr Meskin. It is also not consistent with Mr Meskin's evidence that the Builder was in charge of the Site and that he did not give the Builder instructions as to the carrying out of construction work (T53:6-18; at [4], [5], [9], Meskin affidavit dated 27 September 2019).
The plaintiff's assertion that Mr Meskin, on behalf of the Club, directed or arranged for the Builder to carry out excavation works on 11 July is also not supported by the evidence of Mr Gooch, which I accept, that in resuming works in July 2019, Mr Gooch sought the opinion of the Club and would bounce ideas off Mr Meskin, but not seek any instructions (T75:45 - T76:1).
In any event, accepting Mr Cohen's version of the conversation does not lead to the conclusion that an instruction or direction was given on 11 July 2019 by the Club to the Builder or CF Group to carry out excavation works that day but relies on an inference to be drawn from those comments.
An inference about an element of a charge should not be drawn if there is a reasonable explanation consistent with innocence: Shepherd v The Queen (1990) 170 CLR 573, at 586. Here, there is a reasonable alternative explanation which is that the Builder or CF Group made a decision to carry out the works and the Club, while having knowledge of and perhaps even acceding to that decision, did not on 11 July 2019 instruct, direct or arrange for excavation works to be carried out that day.
As to the charges in relation to 23 and 29 August 2019, the plaintiffs did not refer the Court to any evidence on either of those days that the Club or Mr Meskin (on behalf of the Club) requested, instructed or took some other step to arrange for any works in the nature of those complained of to be carried out on those days.
I am unpersuaded by the plaintiff's argument that, because the Club was ultimately responsible for the Site and Mr Meskin had previously sought or obtained instructions from the Club, the Court can be satisfied that the Club must have arranged for the excavation works to be carried out on each of the relevant days.
The plaintiffs' argument is based on an email dated 2 May 2019 from Mr Meskin to Mr Aguino at Lazarus Legal (which was copied to Mr Gooch) which refers to CF Group's resumption of piling works and completing the piling shoring wall "if Barry (Mr Lazarus) agrees for us to begin", and an email dated 6 June 2019 from CF Group to Mr Meskin which refers to instructions having been received from the Club and the Builder to commence installation of the capping beam. Both emails relate to the time before the Undertaking was given and well prior to the relevant days on which it is alleged that the Club arranged to carry out the works the subject of the contempt charges.
In any event, evidence that the Club was involved in providing some prior instruction is not, in my opinion, sufficient evidence on which the Court can be satisfied beyond reasonable doubt that the Club took other steps on three later days to arrange for excavation works to be carried out as charged.
The plaintiffs also argue that the Court should have regard to the context, being that the Club has a non-delegable duty under s 177 of the Conveyancing Act 1919 (NSW) not to do anything on or in relation to land being developed that removes support to any adjoining land. I do not accept that this context overcomes the burden of proof on the plaintiffs. The existence of a non-delegable duty not to do something on Site which removes support to adjoining land and being legally responsible if it happens, does not mean that the Court can be satisfied that the Club arranged for excavation works to be carried out on each of the relevant days as charged.
The plaintiffs also point to Mr Meskin having been on Site regularly and the person with whom they liaised about the nature of the works being undertaken as evidence that the Club arranged the works.
Mr Meskin is the project manager with responsibility for monitoring the Development, managing and co-ordinating the Builder and sub-contractors, and seeing that the finances were correctly administered (T53:6-18; at [3] and Tab 1 of DM-1 of Meskin affidavit dated 27 September 2019). In those circumstances, it is not surprising that he liaised with the plaintiffs and had knowledge of what works were being carried out.
It does not follow, and I do not accept, that the plaintiffs have established that Mr Meskin was the agent of the Club for the purposes of arranging excavation works to be carried out on Site. Nor have they demonstrated beyond reasonable doubt that, on 11 July, 23 and 29 August 2019, Mr Meskin (on behalf of the Club) arranged for excavation works to be carried out on each of those three days as charged.
For these reasons, the charges against the Club should be dismissed.

[31]

What is required to prove criminal contempt?

In order to prove a case of civil contempt in relation to breach of an undertaking given to the court, a plaintiff must prove beyond reasonable doubt that: 1. the undertaking by the alleged contemnor was given to the court; 2. the undertaking was sufficiently clear such that it was capable of compliance; 3. the alleged contemnor had knowledge of the terms of the undertaking; 4. the alleged contemnor breached the undertaking; and 5. the alleged contemnor took a deliberate step which, even if not intended to, breached the order. What is necessary is not that the alleged contemnor intended to breach the order but rather that the order was breached and that the action constituting the breach was intended. Hence, casual, accidental or unintentional acts which breach an order are excluded. Re Group Pty Ltd v Kazal (No 4) [2017] FCA 1084, at [73]; Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193, at [38].
The parties did not address the Court on whether it must be satisfied of any other matters before making a finding that the Builder has committed, and is guilty of, criminal contempt, such as whether the alleged breaches were contumacious. Nor did they address the Court on whether the issue of contumacy is a matter to be determined at the stage of the hearing of the charges or at the penalty stage.
In Pang v Bydand Holdings Pty Ltd, the NSW Court of Appeal considered a conviction for contempt for breach of an undertaking which could not be remedied. The notice of motion sought that the contemnor, Mr Pang, be "punished for contempt by committal to prison or fine or both".
At first instance, Einstein J, delivered three judgments, the first dealing with the question of the proper construction of the undertaking, concluding that it was sufficient to support a charge of contempt: Bydand Holdings Pty Limited v Pineland Property Holdings Pty Limited & Ors [2009] NSWSC 579.
After delivery of that judgment, Mr Pang accepted that he had breached the Undertaking and put forward evidence seeking to explain the reasons for his breach and in mitigation of any order that the Court might make. In the second judgment, (Bydand Holdings Pty Limited v Pineland Property Holdings Pty Limited & Ors [2009] NSWSC 584), Einstein J made the following finding at [51]: "In my view Mr Pang's breach of the undertaking was a deliberate and contumacious one amounting to a very serious flouting of the Courts authority…".
In his third judgment, dealing with penalty (Bydand Holdings Pty Limited v Pineland Property Holdings Pty Limited & Ors [2009] NSWSC 959), Einstein J ordered Mr Pang to complete community service.
On appeal issues were raised as to whether Einstein J had made appropriate findings in relation to the nature and manner of the breach of the undertaking by Mr Pang to establish a criminal contempt and whether he found Mr Pang guilty of a criminal contempt. The Court of Appeal concluded that his Honour did on both issues.
Beazley JA (as her Excellency then was), with whom McColl JA agreed, stated at [73]-[74]: "A mere breach of an undertaking to the court is not a criminal contempt: see ACP v Morgan per Windeyer J at 497. Even a deliberate breach is not, per se, a criminal contempt: Scott v Scott [1913] AC 417 per Lord Atkinson; adopted by Windeyer J in ACP v Morgan at 497, although his Honour observed, at 501, that the line between a civil and criminal contempt cannot always be sharply drawn. Conduct could amount to both a civil and criminal contempt if the disobedience of a court order was deliberate. Read in context, Windeyer J's use of the word "deliberate" meant conduct that was more than just wilful, that is to say, was contumacious. If the breach is found to be contumacious, a criminal contempt will have been committed. This was explained by Barwick CJ in ACP v Morgan at 489, where his Honour commented that a contempt by breach of an undertaking may be accompanied by such contumacy or defiance so as to evidence a criminal as well as a civil contempt. His Honour emphasised that mere breach is not criminal."
Her Honour went on, at [78], to quote the decision of the plurality in Witham v Holloway (1995) 183 CLR 525 at 530, namely that a prima facie civil contempt "amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious".
Beazley JA noted that the rules of court do not distinguish between civil and criminal contempt and that there is no necessary strict division between the hearing of the contempt charge and determination of matters relevant to sentence, although the division usually occurs in practice, at [99]. Her Honour went on to state that the ultimate issue in the case was the seriousness of the contempt and a strict characterisation as civil or criminal was not necessary. Her Honour concluded that there was "no flaw in the process in which his Honour (Einstein J) engaged in finding a contumacious breach and therefore a criminal contempt in the second part of the hearing" (at [104]).
In separate reasons, Lindgren AJA (with whom McColl JA also agreed), agreed with the conclusions of Beazley JA. He also commented on the findings required for criminal contempt. His Honour first considered the decision in Hearne v Street.
In Hearne v Street, the majority of the High Court noted, at [130], that the parties were divided as to whether "a breach of an injunctive order or an undertaking that is wilful but not contumacious in the broad sense - and is not merely casual, accidental or unintentional - is regarded as a civil contempt (this being the traditional distinction between civil and criminal contempt which still has significance)". At [131], the majority held that "The present appeal does not present an appropriate occasion either to deal with the appellants' attacks on these passages or to deal with all the other issues of law raised". The majority held that the proceedings were, as a matter of fact, remedial not punitive, and that the contempt was therefore civil. The Court did not determine whether, on the facts, the breach of the implied undertaking was contumacious, and appears to have left undisturbed the finding by Ipp JA in the NSW Court of Appeal that the breaches were wilful but not contumacious: [93].
In Pang v Bydand Holdings Pty Ltd, Lindgren AJA said, at [171]: "the language used in Hearne v Street is explained by the fact that the issue being addressed was the jurisdictional issue raised by s101(5) and (6) of the Supreme Court Act 1970 (NSW). Those provisions refer to "proceedings that relate to" civil contempt or criminal contempt, as the case may be. The focus of attention is "proceedings". Where, as in the present case, there is no possibility of a contempt proceeding being brought to ensure compliance with an order or undertaking, the proceeding can only be seen as punitive, that is to say, as punishing for a past breach. Thus, the proceeding before the primary Judge in the present case, like that in Hearne v Street, was a proceeding relating to criminal contempt for the purpose of s 101(6). It follows that no appeal would have lain from an acquittal of Mr Pang."
His Honour then went on to draw a distinction between the purpose of a contempt proceeding being punitive or remedial, and the elements of a charge of criminal contempt. His Honour considered that contumacy had to be proved beyond reasonable doubt before a contemnor may be found guilty of a criminal contempt, stating at [172]-[174]: "This does not, however, resolve the question whether Mr Pang committed a criminal contempt. Whether he did depends on whether his breach of his undertaking was contumacious or defiant. The answer depends on the circumstances at the time of the breach, 16 March 2009. A person can commit a contempt that can be properly characterised as "criminal" or as "civil" although no proceeding is ever brought relating to it. The "purpose of the proceeding" inquiry is different from the "contumacy or defiance" inquiry and the two may yield different results. The fact that the purpose of a contempt proceeding is punitive and not remedial or coercive, says nothing as to whether conduct constituting the breach of an order or undertaking was in fact contumacious or defiant and therefore criminal. In the present case the primary Judge was entitled to find Mr Pang guilty of a criminal contempt only if he was properly satisfied beyond reasonable doubt on admissible evidence that Mr Pang breached his undertaking contumaciously or defiantly."
His Honour also rejected the suggestion that the evidence admitted after Mr Pang made his concession could be relied on only as relevant to penalty and not as relevant to the characterisation of the contempt as contumacious or defiant and therefore criminal, at [186].
The reasoning of the Court of Appeal in Pang v Bydand Holdings Pty Ltd suggests that a finding, beyond reasonable doubt, that a breach of an undertaking is contumacious is necessary for a contemnor to be found guilty of criminal contempt.
The need to find contumacy to support a conviction for criminal contempt in respect of breach of a court order or undertaking has been accepted by other Judges of this Court (see for example, Fagan J in Zaia v Eshow [2019] NSWSC 740; Harrison J in Doe v Dowling [2017] NSWSC 202).
There is some divergence of views as to whether contumacy is relevant to the question of penalty only and whether the Court needs to characterise a contempt as being is criminal or civil at the hearing of the contempt charge.
In Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91; [2009] NSWLEC 92 Biscoe J stated that disobedience of a court order in civil proceedings can amount to criminal contempt if the disobedience was contumacious (the nature of the contempt) or the punishment serves only a punitive purpose (purpose of the contempt proceedings): at [58] - [59]. His Honour went on to state that contempt was, in effect, an offence of strict liability and the question whether disobedience was contumacious was irrelevant to whether there had been any contempt and only went to the issue of penalty: at [71]. In that case, the alleged contemnor argued that a statement of charge was defective because it failed to allege that the breach of the court order had been contumacious. The applicant then disavowed any intent on its part to have had the respondent dealt with for criminal rather than civil contempt.
In ASIC v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62, White J referred to the difficulty in determining whether a breach of an order is likely to have been contumacious without having heard all the evidence and referred to Biscoe J's approach in Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91; [2009] NSWLEC 92. White J characterised the charges as criminal because of the purpose of the charges being to punish for past breaches only and dealt with the issue of whether the breach was contumacious at the penalty stage.
See also Construction, Forestry, Mining and Energy Union v Grocon Constructions (Victoria) Pty Ltd (2014) 47 VR 527; [2014] VSCA 261, in which the Victorian Court of Appeal concluded that the better view is that contumacy is not an element of the offence of criminal contempt, is relevant only to penalty and does not need to pleaded within the statement of charges. This conclusion was in the context where the appellant argued that the statement of charges was defective because the charges did not allege contumacy.
Here, the plaintiffs have stated they are arguing criminal contempt. The Builder has noted that position in its submissions and has not raised any allegation that the charges are defective because they do not allege contumacy. In light of those matters, I have approached this case based on the reasoning in the Court of Appeal decision in Pang v Bydand Holdings Pty Ltd and other authorities which refer to criminal contempt as involving a contumacious breach of an undertaking.
It follows that, in order to find the Builder guilty of criminal contempt as charged, in addition to being satisfied beyond reasonable doubt of the elements required to prove a civil contempt, I also need to be satisfied, beyond reasonable doubt, that any breaches of the Undertaking by the Builder were contumacious, in that they were in deliberate defiance of the Undertaking.

[33]

Did the Builder carry out excavation works in breach of the Undertaking on each of the relevant days as charged?

The plaintiffs' case on this question was that the Court could be satisfied beyond reasonable doubt that the Builder carried out excavation works in breach of the Undertaking as charged if it concluded that works within the meaning of the Undertaking had been carried out on Site on each of the relevant days.
As noted above, I have found that works in the nature of excavation were carried out on each of the relevant days within the meaning of the Undertaking by the digging and removal of spoil to create a hole, trench or other hollow on Site which lowered or levelled the ground (at [163], [167] and [168]).
The Builder did not make any submission or assert that it did not carry out the works on Site which involved the digging and removal of spoil on Site. In closing submissions, it stated (at T103:43-44): "There's absolutely no doubt that we have removed spoil and we've intended to remove spoil."
The onus is on the plaintiffs to prove beyond reasonable doubt each element of the criminal charges of contempt it brings. The plaintiffs' onus includes satisfying the Court, beyond reasonable doubt, that there is evidence to support the charges as framed.
The contempt charges allege that the Builder carried out excavation works in breach of the Undertaking.
As a corporate entity, the Builder can carry out the excavation works by its officers, employees, servants or agents.
The plaintiffs did not refer the Court to any evidence that the Builder, by its director Mr Gooch or by its employees, carried out the works complained of.
Despite the comment of the Builder in closing submissions (as referred to above), I am satisfied, beyond reasonable doubt, that the evidence proves that CF Group (not the Builder) carried out all the excavation, piling and capping beam works on Site, including those on 11 July, 23 August and 29 August 2019 (at [8], [9], [10], [50], [59] - [62] Gooch affidavit dated 23 September 2019; Ex B; Ex D).
In Kirkpatrick v Kotis, Campbell J considered the situation where the party charged with contempt for breaching a court order was not the party who had carried out the relevant excavation works on site. In that case, the court order addressed the prohibition on the relevant works to the "defendants, by himself his servants and agents".
His Honour noted that the addition of the words "servants and agents" did not add anything to the extent of the prohibition in the court order because it might be possible for the defendant to have breached it if a servant or agent carried out the act which was prohibited, at [81]. The party alleging the contempt made a submission that the person who carried out the works was the agent of the defendant and the defendant was therefore in contempt.
His Honour concluded that the contempt charges should be dismissed because it had not been established, as a matter of fact, that the person who carried out the excavation work was acting as the agent of the alleged contemnor. His Honour noted that the relevant contract (assuming one existed) was not in evidence, it had not been shown that the defendant engaged the person to do the work in question or requested them to go to the site, or held out to the plaintiff (or to anyone) that they had authority to act on the defendant's behalf in any way. His Honour also noted that it was open, on the evidence, that the person was some sort of an independent contractor and that usually, a person who engages an independent contractor is not liable for their torts (at [101]-[102]).
The evidence in this case is different to the position in Kirkpatrick v Kotis. As noted above, the evidence indicates that the Builder entered into a contract with CF Group for it to design and construct the secant piling shoring wall, capping beams, shotcreting, dewatering and bulk and detailed excavation, although the contract between the Builder and CF Group is not in evidence.
There is also evidence that, on or around 6 June 2019, CF Group received instructions from the Builder to commence installation of the capping beam and that, in order to do so, it needed to remove spoil (at [51] and tab 17, Meskin affidavit dated 20 September 2019), and evidence that the Builder instructed CF Group to remove two truckloads of spoil on 29 August 2019 (at Ex B).
The Builder's closing written submissions also refer to "the actions of Brianda", the Builder being "conscientious to ensure removal of non-spoil did not occur", and instructions to the contractor (see for example, at [10], [20.1] and [23]). As noted above, the Builder also conceded that "we carried out the works".
In my view, the totality of the evidence, the concession by the Builder and the terms of the closing submissions are sufficient for the Court to be satisfied beyond reasonable doubt that the Builder instructed CF Group to carry out the works to dig up and remove spoil on Site on the relevant days, had control and direction over CF Group carrying out those works and that CF Group carried out the works which I have found were in breach of the Undertaking on the relevant days on the authority of the Builder for which the Builder is responsible.
It follows that I am satisfied beyond reasonable doubt that the Builder, by its contractor CF Group, carried out excavation works in breach of the Undertaking on each of the relevant days as charged. I am also satisfied, beyond reasonable doubt, that the works and actions constituting the breach was intended and not casual, accidental or unintentional acts.

[39]

Is the contempt motion an abuse of process?

Applying the relevant principles to the facts in this case, I do not consider that the Club has demonstrated that the plaintiffs' bringing and maintaining of the contempt motion constitutes an abuse of process.
At the heart of the Club's abuse of process case is the argument that the plaintiffs' conduct, in deploying the contempt proceedings, is for improper or collateral purposes, being to damage the Club and its reputation and to try and stymie the Club's Development.
The Club submits that the Court can be satisfied of the plaintiffs' improper purposes because of the lack of any suggestion that the contempt charges have been brought in any way motivated by a desire to vindicate the Court's authority or out of a legitimate concern about the ongoing impact of the Development on the Property.
In support of its submission, the Club relies on the various communications relating to the Development involving Mr Cohen. It says that these communications evidence attempts by Mr Cohen to do his best to stop the Development as they include unjustifiable threats to the private certifier, approaches to Mr Gooch and JK Geotechnics to encourage them to withdraw from the Development, and the making of unmeritorious claims about the directors of the Club.
The Club also relies on what it asserts is the absence of any evidence as to the Club's involvement in the activities the subject of the contempt charges brought against it, the charges relating to historical conduct only, the absence of evidence as to any adverse impacts on the plaintiffs and their Property as a result of the alleged breaches of the Undertaking, and an absence of evidence as to any sensible reason for bringing the contempt motion. They point to Mr Cohen's evidence in cross-examination to the effect that he instructed his solicitors to launch the contempt proceedings without bothering to read the consent orders and because the Court and others might have suggested that the works amounted to "excavation".
The volume of the communications involving Mr Cohen and his solicitors in relation to the Development is extensive. As deposed by Mr Aguino, around 100 items of written correspondence in the form of letters and emails were sent by the plaintiffs' solicitors to the Club's solicitors over the five month period after the Property damage was reported. There have been numerous other communications sent from Mr Cohen and his solicitors to others relating in the Development.
In a case of this nature, where the evidence shows that the parties have experts available to discuss and agree on how to deal with the damage, insurers have apparently accepted the claims made and undertakings have been given to deal with concerns, the extent of the communications seems entirely disproportionate to what could sensibly be required.
I also accept that some of the communications are in terms which go beyond what could be considered to be reasonably necessary to deal with legitimate concerns and claims. There is, therefore, some force to the Club's submission that the communications reflect a desire on the part of Mr Cohen to have the works on Site cease.
That said, I do not accept the submission that the past correspondence and communications involving Mr Cohen and his lawyers provides a proper basis to conclude that the contempt motion, which was brought by both plaintiffs, is an abuse of process.
The question is whether the contempt motion has been brought against the Club to enable the plaintiffs to obtain some improper or collateral advantage or other benefit to themselves, not whether the plaintiffs have engaged in some other conduct that might be characterised as burdensome or productive of unjustified trouble and harassment: Ashby v Commonwealth (No 4) [2012] FCA 1411; UBS AG v Scott Francis Tyne as trustee of the Argot Trust (2018) 92 ALJR 968; [2018] HCA 45.
The contempt motion is brought in proceedings in which the plaintiffs allege that the Property has been damaged by the works on Site and seek relief as a result. The Club accepts that damage was caused. It (and the Builder) agreed to carry out strengthening works to assist with the risk of further damage. It gave the Undertaking as part of a compromise of the plaintiffs' claim for injunctive relief. These are not proceedings in which the plaintiffs' underlying claims could be described as having no merit, although there may be significant debates as to the scope and quantum of damage and where liability should ultimately rest.
The plaintiffs initially approached the Court on 30 August 2019 to seek to have the Undertaking enforced by way of injunctive relief. They did so after correspondence was sent in which concerns were raised about breaches of the Undertaking and further damage to the Property, although I accept that the evidence of further damage is scant.
To my mind, the lack of evidence of further damage to the Property or adverse impact suffered as a result of the works alleged to have been carried out in breach of the Undertaking is a matter which goes to considerations of what penalty (if any) would be imposed if the Court concluded that the Club was in contempt, rather than pointing to some improper purpose on the part of the plaintiffs in commencing the contempt proceedings.
I accept the evidence relied on by the plaintiffs was inadequate to support the charges brought against the Club. That inadequacy led to my finding that the charges should be dismissed.
But I do not accept the Club's submission that the Court should infer some improper purpose on the part of the plaintiffs because of "the complete absence of any evidence as to the involvement of the Club in any of the activities said to have been carried out in breach of the Undertaking". Even if that proposition was correct (which I doubt on the evidence), to my mind it suggests that the way the plaintiffs framed the charges and presented their case was flawed, not that the contempt proceedings were brought for an improper purpose.
The Club gave the Undertaking not to carry out certain works. The plaintiffs asserted that the works carried out on Site were in breach of that Undertaking and approached the Court to obtain injunctive relief to enforce the Undertaking. It was following comments by the Court and the granting of leave on 30 August that the plaintiffs pursued the motion for contempt.
It is not an abuse of process for the plaintiffs to have brought and maintained the contempt motion in those and the circumstances outlined above even though the charges relate to historical conduct only. Nor do I accept the submission that there was no sensible reason for the plaintiffs to bring the contempt motion against the Club.
A party is entitled to commence action to seek to have another held to an Undertaking given to the Court and punished if it fails to do so. While most contempt proceedings relating to the disobedience of a court order or undertaking have some remedial or coercive aspect to them, a private party has a right to bring contempt charges even where the sole purpose may be punitive and the action relates to past breaches incapable of remedy. Contempt proceedings are not just for the private benefit or interest of the party seeking enforcement. They also have the purpose of protecting the effective administration of justice by demonstrating that an undertaking given to the court will be enforced: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; (1986) 66 ALR 577, at 583.
Whether Mr Cohen had read the Undertaking carefully or could adequately explain his motivations for bringing the contempt proceedings is also not to the point. There is a distinction between the purpose of bringing proceedings and a party's motives in doing so. The purpose is the intended result that a party desires to obtain as a result of bringing proceedings, whereas motives are the considerations which move a party to commence or maintain them. The pursuit of a legitimate remedy to a successful (or not successful) conclusion so as to take advantage of a benefit which the law gives or the process offers is not converted to an abuse of process by unworthy or ulterior motives: Williams v Spautz, at 643 per Mason CJ, at 653 per Brennan J.
In this case, the plaintiffs pursued a legitimate remedy, being to seek to enforce the Undertaking by way of contempt charges and orders for punishment. If the plaintiffs had succeeded against the Club they may have sought orders for sequestration or a fine, or an order to stop the works to the extent they were in continuing breach. Such orders are within the scope of the contempt process.
Any damage to the Club and its reputation from the contempt proceedings is, unfortunately, an inherent feature and consequence of the litigation process. To the extent that the damage is financial, having found that the charges against the Club should be dismissed, a costs order in its favour should assist.
Thus, I am not satisfied that the Club has demonstrated that the contempt motion was brought for some actual improper or collateral purpose or to gain some advantage not reasonably related to an order that might be made in contempt proceedings or for a purpose for which those proceedings were designed and exist.
The abuse of process motion should be dismissed.

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