Georges River Council v Hamade

Land and Environment Court (NSW)|2023-04-18|Before: Pepper J

Solicitors: HWL Ebsworth (Applicant) One Group Legal (First and Second Respondents) N/A (Third and Fourth Respondents) File Number(s): 2020/72897 Publication restriction: Nil

Events Leading Up to the Making of the Orders

Hamade and Hammoud purchased the land on 27 November 2017. The title to the land is registered in the name of Hammoud as sole registered proprietor.
The land shares a common boundary with three residential properties located on Wisdom Street, including the neighbouring land.
On 18 December 2017 Hamade and Hammoud submitted a development application to the Council seeking approval for the demolition of an existing dwelling house and the construction of an attached dual occupancy residence on the land.
However, in late July 2018, while determination of the development application was still pending, Hamade caused works to be carried out on the land ("the works"), involving the clearing of trees and vegetation and the use of a mechanical excavator to excavate an area of the land adjoining and extending into a rock wall on the boundary between the land and the neighbouring land.
It was not in dispute that the works were carried out in contravention of the Environmental Planning and Assessment Act 1979 ("EPAA") and caused the partial collapse of a rock wall between the land and the neighbouring land.
On 6 March 2020 the Council instituted Class 4 proceedings against Hamade and Hammoud seeking orders to remedy the contravention of the EPAA.
On 19 October 2020 the Court made consent orders, including orders 2 and 3, on the basis of a joint report prepared by five engineers. The five engineers included experts engaged by the Council, namely, Gerardo Suarez (a structural engineer) and Mark Green (a geotechnical engineer), and experts engaged by Hamade, namely, Shahad Rad (a structural engineer), and Alan Morrow and Tony Matacin (geotechnical engineers).

Non-Compliance with Order 2

Order 2 is a remedial order that required Hamade and Hammoud to construct a retaining wall on the land in order to rectify the geotechnical instability caused by the unlawful excavation works and the partial collapse of the rock wall ("the remedial works") within 180 days of the making of the orders, namely, 17 April 2021. It incorporated specific plans and drawings prepared by Smart Structures Australia Pty Ltd ("the drawings"). Drawings S04.11, rev 4 and S04.12, rev 2 referred to in order 2 identified several steps to be undertaken to carry out the remedial works.
In respect of order 2, an agreed statement of facts tendered for the purpose of the contempt proceedings ("ASOF") stated that: 16. On or about 30 November 2020 the Respondent received a quote from MAK Construction (Aust) t/a MAK Civil and Construction for the Remedial works in the amount of $196,680 (including GST). 17. In or about October and November 2020, the Respondent deposes that he also obtained verbal quotations from Rix's Construction and Neal McQuade builders which varied from $200,000 to $300,000 to complete the Remedial works. 18. According to an unsigned letter from Hassan Hijazi of Accredited Mortgages Pty Ltd (mortgage brokers), dated 12 April 2021 to the respondent's solicitors, Mr Hijazi made unspecified attempts, during the period from 1 November 2020 to 31 January 2021 to obtain a loan for Ms Hammoud and Mr Hamade for their Connells Point Property. No supporting documentation has been provided by Mr Hijazi or the Respondent. 19. In or about March 2021, the Respondent deposes to securing a loan from his older sister and husband to pay for the Remedial works. The Respondent deposes that, as at 23 February 2023, his sister had not advanced him any money under this loan, but that funds are available when they come due.
In relation to the works undertaken in partial compliance with order 2, the ASOF stated that: 20. On 11 February 2021 the Respondent's solicitor advised Council by email that the Remedial works were to commence in 7 days. 21. Between March 2021 and May 2021 intermittently, site clearance, site establishment and procurement works were undertaken on the Land. The site establishment works included connection of power, water, site amenities, filling and levelling of the ground with compactable material to provide access to the rear of the Land. The procurement works were engaging a grout and shotcrete contractor and to agree a scope of work to manage grout spillage procedures for the works. 22. On 29 March 2021, Council Officer Michael Cufer undertook a site inspection of the Land and observed that whilst works were underway the Remedial works had not been completed. 23. On 31 March 2021 Council emailed a letter to OGL following up compliance with the 2020 Orders. 24. On 1 April 2021 the Respondent obtained a boundary survey prepared by W Buxton Surveyors. 25. On 9 April 2021, step 1 of the works identified in drawing S04.11, rev 4 in Order 2 commenced. Step 1 of the works were completed on or about 15 October 2021. 26. On 18 April 2021, when carrying out the pre-commencement works at the southern boundary, contractors encountered a large boulder which crossed the boundary and consequently stopped work until Mr Morrow could inspect and prepare a safe work methodology. 27. On 20 April 2021 pre commencement works, unrelated to the boulder, continued. 28. On 22 April 2021 Mr Morrow gave recommendations for the make safe works. 29. The make safe works and the pre commencement works were completed by 22 April 2021. 30. Between 1 May 2021 and 12 May 2021, intermittently on a day or days that have not been identified, iPile carried out works on the Land for preparation of shotcrete. 31. Shotcreting was undertaken by iPile on the Land on 13 May 2021. 32. Grouting work by iPile did not occur between 14 May 2021 and 27 May 2021 due to plant and equipment not being available and inclement weather. 33. Grouting works were carried out by iPile between 3 June 2021 and 14 October 2021. The delay was due, in part, to: a. Wet weather; b. continuity of voids leading to high grout flow which needed to be addressed to prevent grout flow to neighbouring properties; and c. general difficulty in procuring contractors and supplies due to COVID. 34. On 30 August 2021 Council emailed a letter to the Respondent's solicitor advising that the Respondent was in contempt of the 2020 Orders and placing the Respondent on notice that contempt proceedings may be commenced. 35. On 30 September 2021, Council emailed a letter to the Respondent's solicitor advising that the Respondent was in contempt of the 2020 Orders and placing the Respondent on notice that contempt proceedings may be commenced. 36. On 7 October 2021, Council received an email from the Respondent's solicitor advising that a proposed communication requesting the matter be relisted would be prepared. 37. On 15 October 2021 Mr Morrow attended the Land to undertake geotechnical inspections and to make core sample locations for quality assurance testing. The exercise was considered necessary by Mr Morrow. 38. On 18 November 2021 Mr Morrow provided his report on his inspection of the Land and made recommendations for future Remedial works. 39. The Respondent deposes to further delays in or about November 2021 of between 3-5 weeks due to the shutdown of the construction industry during the COVID lockdown period. 40. On 26 November 2021, Council received an email from the Respondent's solicitor attaching a letter from Mr Morrow. 41. On 26 November 2021, the Council responded to the Respondent's solicitor seeking clarification as to how the letter referred to in paragraph [40] relates to the 2020 Orders. 42. On 29 November 2021, the Respondent's solicitor responded to that email advising that the comments had been passed on to Mr Morrow for response. 43. On 29 November 2021, the Council received an email from the Respondent's solicitor advising that evidence in relation to the delays had been provided by the Respondent and would be formalised into an affidavit. On 1 December 2021, a notice of motion was filed on behalf of Mr Hamade seeking to extend the date for compliance with Order 2… 44. Commencement of the Step 2 works were further delayed due, in part, to: a. the Christmas and New Year closure period in 2021/2022; b. Mr Morrow's availability to oversee the Step 2 works; c. Extended periods of rain of approximately 29 days between 1 December 2021 and 8 February 2022. 45. Between 18 February 2022 and 22 February 2022 Mr Morrow undertook geotechnical inspections of the Land and provided advice for the Remedial works. 46. The Step 2 Remedial works were further delayed by heavy rain in Sydney which recorded 33 days of rain between 22 February 2022 to 3 March 2022 which prevented the Remedial works from continuing. 47. On 9 March 2022, an amended notice of motion (ANOM) was filed on behalf of Mr Hamade seeking to extend the date for compliance with Order 2... 48. On 9 March 2022, the Council filed the notice of motion and statement of charge commencing these contempt proceedings. 49. On 11 April 2022, Justice Duggan dismissed the ANOM and listed the contempt proceedings for hearing. 50. On 13 April 2022 - 3 May 2022 Mr Morrow and Mr Green (Council's geotechnical engineer) carried out a joint inspection of the Land and agreed on a work method for shotcrete and drainage. 51. By 28 June 2022, the designs for the Drainage Works and shotcrete designs were completed. 52. On 27 July 2022, the Court made orders by consent of the parties for the carrying out of the drainage works and shotcrete works. 53. Between 28 July 2022 and 17 August 2022 drainage works were carried out. 54. On 23 September 2022, Mr Morrow inspected the works 55. Mr Hamade deposes that in or about mid September 2022 following a breakdown in the relationship between AAG and Mr Hamade, AAG stopped working on the Land without prior notice to him. 56. By 17 October 2022 Mr Hamade engaged, Mr Mohammad Hammoud of MAK, to complete the Remedial works. Mr Hammoud had been a close friend of the respondent for over 13 years. There was no written agreement, but only an informal agreement. 57. Mr Hammoud carried out works on the Land between 18-31 October 2022. 58. On 2 November 2022 Mr Morrow undertook an inspection of the Remedial works and identified some non compliances and made recommendations for rectification. 59. Delays were experienced between October 2022 to December 2022 due to further heavy rain and the site requiring recovery time following rain events. 60. On 14 December 2022 Mr Alavi (of Mr Rad's office) undertook a footing design inspection for the permanent wall. 61. Between 21 December 2022 and 20 January 2023 Mr Hammoud did not carry out works on the Land due to inclement weather and the Christmas and New Year closure period. 62. Remedial works recommenced on the Land on 23 January 2023 including an inspection by Mr Rad's office on 25 January 2023. 63. Works ceased between 25 January 2023 to 31 January 2023 on the Land due to rain and consequential recovery period. 64. Between 1 February 2023 to 30 March 2023 Remedial works were carried out the Land. 65. Mr Rad's office undertook further inspections on 10 February 2023 and 24 February 2023 to inspect the retaining wall footings and reinforcement. 66. Mr Hamade asserts that he was advised by Mr Hammoud that the Remedial works had been completed on 30 March 2023.
Contrary to Hamade's assertion on 30 March 2023 that the remedial works had been completed, an inspection of the works required to comply with order 2 indicated that: 67. On 31 March 2023, by Court order, by consent, Mr Green and Mr Suarez inspected the visible parts of the Remedial works on the Land. 68. Mr Hamade asserts that he was advised by his solicitors on 4 April 2023 that Council reported that the Remedial works had not been carried out in accordance with the plans the subject of Order 2 and that he was unaware that works were not in accordance with the plans. 69. Mr Morrow inspected the Remedial works on 6 April 2023 and provided geotechnical certification in accordance with Order 5 of the Orders on 13 April 2023. 70. The location of the retaining wall is primarily on the Land. The buttress extensions extend into 28 Wisdom Street to connect with the structure on that property.

Non-Compliance with Order 3

Hamade appointed Morrow, of Morrow Geo, and Rad, of Smart Structure Australia, to carry out and supervise the remedial works.
On 18 November 2020 the Council wrote to Hamade's solicitor requesting details of the engineers appointed pursuant to order 3 of the consent orders. On 15 December 2020 the Council wrote again advising that it had not received the information required by order 3.
On 17 December 2020 the Council received an email from Hamade's solicitor advising that Rad and Morrow had been appointed by Hamade. They continue to be engaged by Hamade for the purposes of carrying out the remedial works.
The parties agree that the contempt in relation to order 3 has now been completely purged.

Evidence Relied Upon by the Parties

In addition to the ASOF, the Council read the following affidavits: 1. that of Carole Li, affirmed 7 December 2022 and 10 March 2023, which deposed to the impact of the remedial works and the proceedings on herself, her family, and her property; and 2. that of Suarez, affirmed 6 April 2023, which deposed to his observations of the land at a site inspection on 31 March 2023.
The Council further relied upon a joint expert structural engineering report by Suarez and Rad, dated 17 April 2023 ("the joint expert report").
Hamade relied upon the following documentation: 1. a letter from Fadwa Fahs, a friend of Hamade, dated 17 February 2023; 2. a letter from Abdul Hammoud, Hamade's brother-in-law, dated 18 February 2023; and 3. a remediation plan of a retaining wall drawn by Rad.
Hamade also read the following affidavits: 1. his affidavit sworn 23 February 2023, detailing the effect of the proceedings on his mental health, outlining the loans obtained by him from his sister and her husband in respect of the land and the remedial works, and giving the total costs of the remedial works to date; 2. his affidavit sworn 17 April 2023, deposing his intention to pay the costs of Carole Li and Winson Li arising from the Class 4 proceedings; 3. his wife, Hammoud sworn 22 February 2023, outlining the effect of the proceedings on her relationship with him and on her mental health; 4. Sam Borenstein, a registered psychologist, sworn 23 February 2023, attaching an expert report in respect of Hamade's mental health; 5. Mohammad Hammoud, a civil works contractor and builder employed by MAK Urban Group, sworn 20 February 2023, confirming the amount of various invoices issued by MAK Urban Group for works carried out on the land; and 6. Rad, sworn 14 April 2023, deposing to his observations of the land during his inspection on 12 April 2023.

Applicable Principles in the Punishment of Contempt

The Council bears the onus of establishing the contempt charge beyond reasonable doubt, irrespective of whether the contempt is civil or criminal, or wilful or contumacious rather than technical (Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 543, 545 and 548 and Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [72]).
The Court has the same powers to punish contempt as those of the Supreme Court by reason of r 6.3 of the Land and Environment Court Rules 2007 ("LEC Rules") (and see r 6.1 of the LEC Rules). Pursuant to Pt 55 of the Supreme Court Rules 1970 ("SC Rules"), the punishment for contempt includes a fine, imprisonment, or both.
There is no maximum penalty specified under the LEC Rules, the SC Rules, or the EPAA in respect of a finding of guilt for contempt. The Court also retains the flexibility to impose a criminal sanction appropriate to the particular circumstances of the contempt (Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 319-321). In other words, contempt of court can be punished by a range of penalties (NCR Australia Pty Ltd v The Credit Connection Pty Ltd [2005] NSWSC 1118 at [25]).

The Purposes of Punishing for Contempt

The underlying purpose of the exercise of the Court's power to punish for contempt is to protect the effective administration of justice by demonstrating that the Court's orders will be enforced (Randwick City Council v Arxidia Pty Ltd [2021] NSWLEC 105 at [62], quoting Environment Protection Authority v Pannowitz (No 2) [2006] NSWLEC 797; (2006) 153 LGERA 126 at [20]-[24]).
Non-compliance with a court order necessarily constitutes interference with the administration of justice (Witham v Holloway at 533-534). The penalty for contempt of court is a demonstration that the obedience of court orders is paramount. The punishment ought to reflect the gravity of the contemptuous conduct.
In addition to the enforcement of the process and orders of the court, punishment for contempt amounts to a vindication of the Court's authority (Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 108 and Pannowitz (No 2) at [21]).
The nature and purpose of the penalty for contempt was stated by Kirby J in Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 as follows (at [149], footnotes omitted): 149 Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, "serious and lasting damage to the fabric of the law may result". Obviously, the culpability of the contemnor is relevant to the order which must be made. The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner.
An appropriate penalty serves to deter both the contemnor and others who might be minded to flout the authority of the court.
As alluded to above, distinction between civil and criminal contempt is largely illusory because both require the charge to be proved beyond reasonable doubt, and unless the contempt is technical, the usual outcome is the imposition of a penalty (Waverley Council v Tovir Investments Pty Ltd (No 3) [2013] NSWLEC 35 at [23]).
The difference between technical and non-technical contempt is that the former, although constituting contempt, does not warrant any punitive sanction (Attorney-General (NSW) v John Fairfax & Sons Ltd [1980] 1 NSWLR 362 at [16]).
Contempt is classified as technical where it is casual, accidental or unintentional (Pelechowski at [147]).
Contempt is wilful if there is evidence of "deliberate conduct but without specific intent to defy judicial authority" (Council of the City of Sydney v Owners Corporation - Strata Plan 18945 [2011] NSWLEC 79 at [20]). Wilful contempt amounts to disobedience that is more than casual, accidental or unintentional, but falls short of a specific attempt to defy the authority of the court so as to be contumacious (Pelechowski at [147]-[148] and Arxidia Pty Ltd at [66]).
Contumacious contempt is serious and renders criminal what would otherwise be civil contempt because it involves a conscious and deliberate defiance of the Court's orders and its authority (Witham v Holloway at 538-539, Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [2], [24], [130] and [141], Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91 at [58] and Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104 at [33]).
In sentencing for contempt, the Court takes into account the same principles that apply in sentencing for an ordinary criminal offence (Inner West Council v Balmain Rentals Pty Ltd [2022] NSWLEC 20 at [40]).
With respect to the nature and purpose of punishment for contempt, in Environment Protection Authority v Pannowitz (No 2) (2006) 153 LGERA 126; [2006] NSWLEC 797 the Court observed that (at [20]-[24]): 20 The underlying purpose of the exercise of the power of the court to punish for contempt is to protect the effective administration of justice by demonstrating that the court's order will be enforced: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Limited (1986) 161 CLR 98 at 106-107. In Mudginberri the High Court referred (at 107) to Borrie and Lowe's Law of Contempt, 2nd ed (1983) at 3: If a court lacks the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute. 21 The function of punishment for contempt serves two purposes: the enforcement of the process and order of the court and punishment as vindication of the authority of the court: Mudginberri at 108. Thus, in addition to its coercive purpose punishment also serves the purpose of deterring both the contemnor and others who might be so minded from flouting the authority of the court. 22 Non-compliance with an order or a judgment of the court necessarily constitutes an interference with the administration of justice: Witham v Holloway (1995) 183 CLR 525 at 533-534. Any punishment must therefore show that obedience to a court's order is important and should reflect its gravity. 23 Finally on the question of the nature and purpose of a penalty for contempt it is worth noting the judgment of Kirby J in Pelechowski v Registrar Court of Appeal (1999) 198 CLR 435 at 485[149]: Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, "serious and lasting damage to the fabric of the law may result". [ Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 115]. Obviously, the culpability of the contemnor is relevant to the order which must be made [ Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741] The contemnor must then be punished in an emphatic way. He or she must be deterred effectively from any temptation to re-offend. However, the focus of attention is not solely on the contemnor. It is also addressed to the community at large and to any others who might consider acting in a similar manner. 24 In Registrar of the Court of Appeal v Maniam [No 2] (1992) 26 NSWLR 309, Kirby P, Hope A-JA concurring, in an important passage said (at 314): A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741. In this jurisdiction, contempt is a common law offence for which there is therefore no maximum penalty in this Court: R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 442. Any limits which are imposed upon the Court's powers derive from the purposes stated above and the limitations expressed in the Tenth Article of the Bill of Rights 1688 which restrains the imposition of cruel or unusual punishments or "excessive fines": see Smith v The Queen (1991) 25 NSWLR 1, noted (1991) 65 ALJ 695.
There are no specific statutory matters that must be taken into account in punishing for contempt, however, the following common law factors are relevant in determining an appropriate penalty (Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 per Dunford J). These factors have been repeatedly endorsed and applied by this and other courts (Arxidia Pty Ltd at [63], Palerang Council v Banfield (No 2) [2012] NSWLEC 158 at [83] and Sutherland Shire Council v Perdikaris [2020] NSWLEC 111 at [47]). They are: 1. the seriousness of the contempt; 2. whether the contemnor was aware of the consequences of what they did; 3. the actual consequence of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of a serious crime; 5. the reason for the contempt; 6. whether the contemnor has received any benefit by indicating an intention to give evidence; 7. whether there has been an apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and specific deterrence; and 10. the denunciation of the contempt.
Factors (d) and (f) are not presently relevant.
Finally, there is an ongoing debate regarding the applicability of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") to civil contempt proceedings (see Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280; (2016) 93 NSWLR 88 at [15]).
In Dowling v Prothonotary of the Supreme Court of New South Wales [2018] NSWCA 340; (2018) 99 NSWLR 229 Basten JA cast doubt upon the application of the CSPA to contempt proceedings that engaged the civil jurisdiction of a court (at [33] and [46]-[55], Meagher JA agreeing at [139]).
Until the controversy is quelled, in my view, the approach followed by Robson J in Balmain Rentals Pty Ltd is preferred (at [44]): 44 While there is fertile ground for debate as to whether the Sentencing Act applies to civil contempt proceedings (Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280; (2016) NSWLR 88 at [15] (Meagher JA)), it has been applied generally (In the matter of Mycorp Pty Ltd [2014] NSWSC 1180 at [4] (Black J)) and by analogy (Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64; (2013) 195 LGERA 14 ('Queanbeyan') at [17] (Biscoe J); Hutley at [32]). As such, I consider that the Sentencing Act at least provides guidelines to the Court when it is considering civil contempt.

Order 3

Hamade did not, within seven days of the making of the orders, furnish the Council with the details of the engineers that he had engaged as required by order 3 of the consent orders.
But, as stated above, this contempt has now been purged in its entirety.
Hamade submitted that his conduct should be characterised as technical or inadvertent insofar as he merely overlooked compliance with the order. He readily acknowledged his failure to take active steps to properly inform himself of the content of order 3, and stated that the oversight was explicable on the basis that the engineers had already commenced work. He further emphasised that his conduct ought to be viewed in the context of his declining mental health and subsequent diagnosis with chronic and severe adjustment disorder with depressed mood.
I accept that Hamade's contemptuous conduct was merely technical. The Council did not cavil with this finding and acknowledged the minor nature of this breach of the orders.

Order 2

Order 2 required geotechnical works to be completed to stabilise the property by grout injection, temporary soil nails and shotcrete, and structural works to be carried out on the land in the form of the construction of retaining walls, and the installation of bracing, by 17 April 2021.
Hamade was advised by Mohammad Hammoud that the remedial works were completed on 30 March 2023. However, an inspection of the land on 31 March 2023, revealed that the remedial works were not carried out in accordance with the drawings referenced in order 2.
It is not in dispute that Hamade was not aware of this until he was advised of the fact by his solicitors on 4 April 2023.
The Council contended that the contempt in respect of order 2 should be characterised as conscious or wilful. Apart from vindicating the authority of the Court, the Council was concerned to ensure that the remedial works were effective at restoring the stability of the land and the wall on the shared boundary between the land and the neighbouring land.
Hamade acknowledged that his failure to make proper enquiries regarding the costs of the remedial works and to implement a realistic schedule for the completion of the remedial works contributed to the non-compliance. Nevertheless, he argued that his conduct ought more appropriately be characterised as negligent or reckless because he intended to carry out the remedial works. As the ASOF demonstrates, Hamade took steps in an attempt to remedy the non-compliance by 17 December 2020 and has agreed to purge the contempt in relation to order 2.
There has been substantial compliance with order 2. The geotechnical works have been completed and certified. Steps 1, 2, 3, 3a of the remedial works shown on the drawings have been completed.
Hamade acknowledged the seriousness of the non-compliance with order 2 but emphasised the delay that he encountered in complying with it, together with the impact of his declining mental health. Nonetheless, he submitted that the evidence demonstrated his ongoing commitment to complete the remedial works to achieve compliance with the orders and completely purge the contempt.
Having said this, he readily acknowledged that a failure by him to make proper enquiries into the cost of the works and the implementation of a realistic timetable for their completion contributed to the non-compliance with order 2.
A difficulty that has arisen is that the remedial works undertaken purportedly pursuant to order 2 have departed from the drawings the subject of the order and further expert advice was required from the geotechnical and structural engineers as to what further works are necessary to the retaining wall, in particular.
While there are technical reasons as to why the retaining wall was constructed in the manner that it was, Hamade is left with the practical issue that, without his knowledge, order 2 has not been complied with, compliance cannot now be achieved, and that further measures must be taken to ensure the stability of the works.
Additional structural engineering evidence given at the hearing was to the effect that the retaining wall was not designed by Rad and that it required additional bracing to ensure that it can withstand the long term horizontal load of the neighbouring land.
The engineers were questioned in relation to the status of the structural remedial works that were certified by Morrow on 13 April 2023. The cross-examination of Rad and Suarez revealed that: 1. there were differences between the retaining wall that was constructed and the retaining wall that was designed in the drawings. First, it did not extend for the entire length of the common boundary between the land and the neighbouring land as required by order 2 and featured concrete buttresses which were not depicted in the drawings. Second, the retaining wall encroached onto the Li property. The encroachment was not on a rockface on the other side of the neighbouring land; 2. in relation to the first difference, the joint expert report proposed a reinforced concrete footing running alongside the retaining wall extending the full length of the shared boundary, with two separate pipe footings and steel bracing for the further propping up of the retaining wall. During the inspection it was observed that there were some sections of the retaining wall that did not have any reinforced concrete but were nevertheless stable, whereas there were other sections that had substantial reinforced concrete buttresses but that required further work to ensure stability; 3. Suarez opined that it was necessary to stabilise the existing works. He confirmed, however, that at the southern end of the retaining wall, the wall buttress could not be built in accordance with the drawings referred to in order 2 because they did not take into account the possibility of collapse upon excavation; 4. two solutions were proposed by the engineers for the bracing of the buttress wall which did not differ greatly and which involved using either the steel bracing specified in the drawings or a similar product (T31:7-16); 5. a third solution proposed by Rad and endorsed by Suarez on the morning of the hearing, involved the construction of five 4.5 m concrete pillars placed on the left of the retaining wall 1.5 m apart. This was a permanent solution that had several advantages over the steel bracing ordered because it eliminated the risk of the exposed steel rusting, did not require ongoing maintenance in the form of yearly inspections for the next 50 years, and would have a less visual impact (T35:9-27). It also had the benefit of obviating potential town planning issues (T35:29-36:31). The engineers estimated that it would take three days to complete the design and drawings and two to three months to complete the construction up to the point of certification, subject to any weather delays (T40:23-41:20).
Understandably, and not unreasonably, in my view, given the lateness of the third solution, the Council refused to agree to the erection of the pillars absent formal assessment by its engineers, which could not be achieved during the hearing (T46:43-47:39).

Hamade's Non-Compliance With Order 2 Was Wilful

I find that the contempt in respect of order 2 was wilful notwithstanding Hamade's continual attempts at purging the contempt. The breach was not inadvertent insofar as he knew of his obligations under the orders, particularly order 2, including the date by which the remedial works had to be completed. Further, Hamade could have attended to his financial affairs earlier to ensure he had sufficient funds to undertake the works. The fact that he did not know that the built structure departed from the drawings, or that the structure could never have been built in accordance with the drawings at the southern end, ameliorates the wilfulness of his conduct but does not completely exonerate it. Once he became aware of the issue he could have, but did not, seek a variation of the orders. His conduct, through inactivity and inattention, was accordingly wilful, albeit without a specific intent to defy the consent order.
In addition, I find the contempt to be serious because of its duration (over two years) and its impact upon the amenity of his neighbours. Carole Li's affidavit deposed to her anxiety that her pool and house could collapse, which affected her mental health and wellbeing. For example, her daughter was prevented from sleeping in her bedroom which was situated close to the pool. Carole Li had to take time off work to facilitate property assessments and had to expend tens of thousands of dollars on legal and consultants' fees during the course of the proceedings. Her affidavit also stated that boulders and tree roots were excavated and removed from her property without prior notification and that cracks on the north-west side of her pool caused by the remediation works had to be repaired.

Reasons for the Contempt

Hamade's reasons for non-compliance with the orders must be taken into account (Banfield (No 2) at [92]). As the evidence discloses, the contempt was committed, in part, for the following reasons: 1. delays and difficulties in arranging finance to pay for the cost of the remediation works. The quotes for these works was more expensive than Hamade had anticipated. Prior to obtaining a loan from his sister and her husband in March 2021, he had made several unsuccessful attempts at raising funds from elsewhere; 2. delays associated with his declining mental health, which prevented Hamade from properly comprehending how his lack of income and the construction risks associated with the development could hinder his ability to obtain funding to complete the remedial works; 3. delays associated with the grout injection; 4. delays associated with inclement weather; and 5. delays associated with Covid-19 impacting the construction industry and the supply of goods and services.
However, the contempt was also partly a consequence of the delay by Hamade in commencing the remedial works caused by his failure to make adequate enquiries about the cost of the works. The remedial works commenced in March 2021, whereas they should have been completed by 17 April 2021. While I accept that some of the delay resulting in non-compliance with order 2 was due to factors beyond Hamade's control, this is not a complete explanation. Nor is, as Hamade submitted, his ill health.

Awareness of the Consequences

Hamade was aware of the risks and consequences of failing to comply with the orders. This is evident by the fact that: 1. he was legally represented throughout the Class 4 proceedings; 2. he was personally served with the orders on 7 February 2021; and 3. there were multiple communications sent to his solicitor by the Council in respect of his non-compliance, including prior to the commencement of the contempt proceedings.
The Council further submitted that Hamade's awareness of the consequences of failing to comply with order 2 within the requisite timeframe extended to an awareness of the impact on the Li family given their proximity. Notwithstanding the absence of any cross-examination of Hamade due to concerns regarding his mental health, this inference may reasonably be drawn.

Consequences of the Contempt

The consequences of the contempt, namely, whether there was harm occasioned by reason of its commission, is also relevant (Banfield (No 2) at [99]).
Hamade submitted that there was no evidence that the remedial works have caused structural damage to the neighbouring property. This may be accepted.
The Council submitted that there has been some, albeit minimal, harm occasioned by the visual and noise impact of the works on the neighbours, particularly the Li family. This may also be accepted.
There was also harm occasioned to the integrity of the planning system in New South Wales as a result of Hamade not complying with the orders.
The partial collapse of the stacked rock wall caused by the initial works cannot, however, be taken into account during these proceedings because they formed the basis of the Class 4 civil enforcement proceedings.

Seriousness of the Contempt

Considering all of the objective circumstances of the contemptuous conduct, I find that in relation to the non-compliance with order 2 Hamade's contempt is serious, albeit at the lower end. In relation to his non-compliance with order 3, the contempt is trivial.

Plea of Guilty

A plea of guilty by an offender is a mitigating circumstance that the Court must take into account. In addition, the Court should consider when it was entered (or when an intention to plead guilty was indicated), and the circumstances in which that intention was conveyed.
Hamade was charged with contempt on 9 March 2022, and pleaded guilty to both counts on 7 June 2022. I take his early plea of guilty into account in determining his sentence.

Apology, Remorse and Contrition

The Court, in determining whether a contemnor has genuinely expressed contrition and remorse for their contemptuous conduct, can take into account whether they have: 1. provided evidence that they have accepted responsibility for their actions (Arxidia at [85]); and 2. acknowledged any injury, loss or damage caused by their actions, or made reparation for such injury, loss or damage, or both (Arxidia at [83]).
Hamade submitted that the following factors demonstrated his remorse and contrition: 1. his apology to the Court, to the Council, and to his neighbours contained in his affidavit dated 23 February 2023. He indicated that he was aware that his neighbours had been unable to use their pool as a result of risks associated with the remedial works; 2. he acknowledged that he could have taken measures to ensure complete compliance with the orders, including engaging a builder immediately after the orders were made, obtaining financial assistance earlier, and managing the progression of the remedial works in a more efficient manner; 3. his instruction to his solicitors on 12 April 2023, to make a without prejudice offer to Carole and Winson Li to resolve a costs claim in the amount of $23,542 in respect of the Class 4 proceedings. Hamade deposed his intention to sell the property following the completion of the remedial works and to use the proceeds to pay their costs; 4. draft orders proposed by him to resolve all outstanding remedial works. The draft orders sought an adjournment of these proceedings and a variation of order 2 to reflect the current state of the remedial works and any additional required bracing; and 5. his continual attempts to purge the contempt.
Against these submissions is the evidence of Carole Li's stating that she has not personally received an apology from Hamade. Nor did she receive any communication from Hamade warning her about the commencement of the construction works, which had a detrimental impact on her amenity.
I accept that there has been a genuine expression of regret and contrition by Hamade for his failure to comply with the orders, however, the weight to be attributed to this expression is tempered to some extent by his failure to directly apologise to the Li family.

Good Character of Hamade

The good character of Hamade was attested to in written references from Fadwa Fahs and Abdul Hammoud. The letters indicated that Hamade was well-respected in his community and was a dedicated family man whose wellbeing had deteriorated as a result of his mental illness.
Hamade does not have a criminal record and has never been involved in court proceedings before.
I accept that Hamade is of good character.

Hamade's Mental State

Hamade and Hammoud's affidavits both detailed Hamade's mental and physical decline and noted that the proceedings have adversely impacted his relationship with his family.
Borenstein's report concerned Hamade's chronic and severe adjustment disorder with depressed mood. The report opined that Hamade's mental illness did not exist prior to the commencement of the Class 4 proceedings. The report also stated that his condition had severely compromised his cognitive functioning and decision-making ability with respect to the timely completion of the remediation works the subject of the orders.
I take this evidence into account in sentencing Hamade.

Likelihood of Hamade Re-offending

Given Hamade's contrition and remorse, his continual attempts to purge his contempt, and his acceptance of responsibility for his actions, I find that the likelihood of Hamade re-offending is negligible.

General and Specific Deterrence and the Denunciation of Hamade's Conduct

The Court is required to take into account both specific and general deterrence (Wood v Staunton (No 5) at 185 and Arxidia Pty Ltd at [88]-[91]).
With respect to contempt arising from a breach of a court order relating to planning law, Robson J's observations in Balmain Rentals Pty Ltd are apposite (at [60]-[61]): 60 I find that general deterrence is an important part of any sentencing calculation and particularly where the Court's orders were made in circumstances where the defendant actively participated in (and indeed agreed to) the entry of orders in the primary judgment; and where it was aware of the facts and matters with which Council was originally concerned. In relation to deterrence, both general and personal, I accept, and I note the comments of Kirby J in Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435; [1999] HCA 19 at [149]: "Unless courts are seen to respond firmly to deliberate defiance of their orders, their effectiveness in the authoritative determination of disputes of law would be undermined. And if they were not effective, 'serious and lasting damage to the fabric of the law may result' …" 61 This commentary is particularly apposite in relation to a breach of a court order relating to a prohibition in planning law, as the overall operation of the planning system depends on a high level of compliance. As I noted above, harm to the regulatory system is caused by a breach such as the present. In these circumstances, other similar businesses must be deterred from flouting both orders of a court and planning regulation in this way.
The Council submitted that there is a particular need for general deterrence in relation to compliance with court orders in order to dissuade those who may be otherwise inclined to flout the authority of the Court. It argued that the present matter was appropriate for facilitating awareness of the potentially serious consequences of failing to obey orders of the Court, especially orders to remediate the consequences of unlawful development.
I agree. A penalty must be imposed that achieves the purpose of denouncing the contempt and deterring others from not obeying orders of the Court.
In relation to specific deterrence, however, I find that none is warranted having regard to Hamade's contrition, the impact that the proceedings has had on his health, and his continuous attempts at purging the contempt.

Capacity to Pay

Hamade withdrew his initial submissions concerning his incapacity to pay having regard to an absence of evidence before the Court to sustain it. But he submitted that the substantial expense incurred by him to date in undertaking the remedial works and the costs associated with the proceedings, including the Class 4 proceedings, should be taken into account for the purposes of sentencing.
As at 22 February 2023 Hamade had incurred $166,111.13 in remediation works carried out pursuant to the orders. In addition, Hamade owes $99,850 in fees to MAK Urban Group. The estimated cost of completing the remediation works is between $135,000 to $150,000.
Hamade also stated that his costs liability in the Class 4 proceedings was $196,367, excluding his costs in the sum of $58,761.
While Hamade has not submitted that he lacks the capacity to pay any fine that the Court may impose, it must nonetheless be observed that Hamade, an air-conditioning mechanic by trade, is not an individual of substantial means. Hamade's affidavit deposed to the fact that he has exhausted his savings and that he has had to borrow from extended family and friends to pay his legal costs and outstanding costs orders.
I have considered Hamade's financial position in imposing his sentence.

Costs

Although the Council initially sought an order for indemnity costs, it was agreed by the parties that Hamade would pay the Council's costs of the contempt proceedings fixed in the sum of $65,000.
Because an order for legal costs is part of the overall (Balmain Rentals Pty Ltd at [70] and the authorities cited thereat), I have taken into account the agreement as to costs in assessing the penalty.

Consistency in Sentencing

The task of a sentencing court is to seek even-handedness in the imposition of a sentence. However, care must be taken in achieving consistency. There is always difficulty comparing the penalty in one case with that in another because of the wide divergence of facts and circumstances in each (Balmain Rentals Pty Ltd at [67] and Banfield (No 2) at [128]).
The Council submitted that the penalties imposed in cases of wilful contempt range from $7,500 to $50,000, with penalties over $20,000 generally being imposed in cases involving environmental harm or the risk of environmental harm (Burwood Council v Ruan [2008] NSWLEC 167 at [26]-[28]; Queanbeyan City Council v Sun (No 2) [2013] NSWLEC 64; (2013) 195 LGERA 14 at [38]-[41], Balmain Rentals Pty Ltd at [67]-[68]; and Blacktown City Council v Saker (No 4) [2022] NSWLEC 80 at [106]-[107]).
The Court was referred to various comparable cases, the four most relevant of which are summarised below: 1. first, in Balmain Rentals, the respondent pleaded guilty to eight counts of contempt arising from the carrying out of prohibited development for the purposes of a vehicle hire business over two years. The Court held that the contempt was wilful but not contumacious, that it was objectively serious, and that it impacted upon the amenity of the surrounding premises. The respondent was held to be aware of the consequences of its contemptuous conduct, and moreover, that it engaged in the conduct for commercial purposes. Mitigating factors included that the respondent had given a qualified apology and that the operations constituting the contempt had ceased. The Court imposed a monetary penalty of $7,500 for each count of contempt, resulting in a total fine of $60,000; 2. second, in Sun (No 2), the respondent was in wilful contempt of orders requiring compliance with conditions of its development consent to operate a steel fabrication business. At the time of sentencing, the respondent had been in contempt for 10 months, although some steps had been taken to purge the contempt. The Court held that no satisfactory explanation for the contempt had been provided. While limited harm was occasioned by the conduct, there was a risk that the contempt could result in more substantive harm impacting upon public safety. The respondent pleaded guilty shortly prior to the contempt hearing. The Court imposed a fine of $20,000, with an ongoing monthly penalty of $10,000 until the contempt was purged, suspended for two months to afford the respondent with an opportunity to purge the contempt; 3. third, in Saker (No 4), the respondent failed to comply with Court orders to prepare and provide a waste removal remediation plan with respect to an unlawful development. At the time of sentencing, Saker had been in contempt for over three years. The contempt was found to be wilful and contumacious and was committed without regard to public safety. The Court held that Saker was aware of the consequences of his inaction and that it caused ongoing environmental harm. Saker did not express any contrition or remorse, had an extensive criminal history, and was found likely to reoffend. The Court imposed a penalty of $40,000 with an ongoing monthly penalty of $10,000 until the contempt was purged, suspended for 60 days; and 4. fourth, in Bayside Council v Zein [2023] NSWLEC 42, the respondent was engaged in an ongoing contempt of consent orders for over two years relating to unlawful construction work. The respondent accepted that the contempt was wilful, but expressed contrition and remorse and pleaded guilty. The Court found that the lengthy delay in completing the works was not wholly explained by inclement weather and COVID-19 restrictions, and that the contemnor could have arranged his financial affairs to ensure that he had sufficient funds to undertake the works. The contempt had an adverse impact on the neighbour's land. The respondent was fined $20,000 with an ongoing monthly penalty of $3,000, suspended for 60 days.
I have had regard to these cases, noting their similarities and differences to the facts of the present proceedings, in determining the appropriate penalty to be imposed on Hamade.

Disposal of the Proceedings

Finally, an issue arose as to the disposal of the proceedings because, as the engineers attested to, in light of the most recent works carried out without Hamade's knowledge, Hamade can never fully purge the contempt in respect of order 2, and moreover, that the preferable engineering solution to the current instability of the retaining wall is to erect permanent concrete pillars which required an amendment to the orders made by Duggan J.
The parties made submissions in respect of three options to resolve the contempt proceedings: 1. first, the Court determine an appropriate penalty premised upon the orders made on 19 October 2020, with Hamade to apply for an amendment of those orders to complete the remediation works in accordance with the engineers' advice (adopting the third solution proffered by them); 2. second, that the proceedings be presently adjourned to allow Hamade to apply for a variation of the orders based on the advice of the engineers (in conformity with the third solution proposed by them) and then to wholly purge the contempt; or 3. third, the Court impose a fine and an ongoing monthly penalty, until the contempt is fully purged.
The second option was preferred by Hamade, who submitted draft proposed orders to this effect. The draft proposed orders contemplated additional works to be completed within eight weeks of the date of amended orders, however, during cross-examination the engineers gave an estimate of approximately 12 weeks to complete and certify the works.
The difficulty with this course of action is, in my view, that the Court is sentencing Hamade for failure to comply with, and to which he has pleaded guilty to, the orders made by Duggan J on 19 October 2020, and not some other orders. It is those orders that form the basis of the contempt proceedings the subject of the notice of motion and statement of charge.
The third option is equally unsatisfactory given the impossibility of Hamade completing the retaining wall according to the drawings the subject of order 2. Although orders to this effect were made by the Court in Saker (No 4) and Zein, the contempt in those cases was, unlike the present case, able to be purged.
In my opinion, the first option is the preferrable course to be adopted. The purpose of these proceedings is to sentence Hamade for contempt of the orders made on 19 October 2020. If further application is made to the Court to vary those orders to carry out the remediation work in accordance with the solution proposed by the engineers at the contempt hearing, that is a matter for Hamade. If the orders, once varied, are not complied with by him, then fresh contempt proceedings can be instituted by the Council. This will also afford the Council the opportunity of properly assessing the most recent engineering solution suggested by the structural engineers.

Appropriate Punishment and Orders

Having regard to the seriousness of the contempt and Hamade's mitigating factors, I find that the imposition of a monetary penalty of $17,000 is warranted in respect of his non-compliance with order 2.
In relation to the count concerning order 3, applying the totality principle and having regard to its trivial nature, the imposition of a further monetary penalty is not warranted.
The Court therefore makes the following orders: 1. Habib Hamade is guilty of contempt in that: 1. he disobeyed order 2 of the orders made on 19 October 2020, in that he did not complete the remedial works, as that term is defined in those orders, within 180 days, namely, 17 April 2021; and 2. he disobeyed order 3 of the orders made on 19 October 2020, by failing to engage appropriately qualified geotechnical and structural engineers by 26 October 2020, being within seven days of the date of the orders, and by failing to provide details of the engineers engaged by him to Georges River Council at the time of their appointment; 1. Habib Hamade must pay a fine in the sum of $17,000 to the Registrar of the Court within 28 days from the date of this judgment; 2. Habib Hamade is to pay Georges River Council's costs of the contempt proceedings fixed in the sum of $65,000; and 3. the exhibits are to be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2023

(2006) 153 LGERA 126

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