Grustein v Hasapaki

EX TEMPORE Judgment 1This is a motion by the respondent charging the applicant with contempt of Court for disobeying Order 3 made by the Court on 17 December 2004. The applicant did not appear at the hearing except that a solicitor appeared on her behalf to make an unsuccessful adjournment application, whereupon the solicitor withdrew. 2The applicant commenced the proceedings in 2004 under the Encroachment of Buildings Act 1922, objecting to encroachments onto her residential property from the structure on the respondent's adjoining residential property. 3The proceedings were resolved on 17 December 2004 by the following consent orders, which were handwritten and personally signed by the applicant, the respondent and the Registrar of the Court: 1. The Court declares that there is an encroachment by the Respondent's property known as 132 Sutherland Street, Mascot NSW 2020, upon the Applicant's property known as 134 Sutherland Street, Mascot NSW 2020, as outlined m the sketch plan of S.J. Dixon & Associates Pty Ltd, Registered Surveyors, prepared for the Respondent, and annexed hereto and marked with the letter "A". 2. The Respondent will pay to the Applicant the sum of five thousand dollars ($5,000.00), within 7 days of the date of the transfer of the easement. 3. The Applicant will grant the Respondent an easement in respect of the encroachment outlined in the annexure to the Consent Orders marked with the letter "A", and use there best endeavours to register the transfer on or before 31 January 2005. 4. The Respondent will pay to the Applicant legal costs and disbursements in the agreed amount of one thousand six hundred dollars ($1,600.00), $800.00 to be paid m advance within 14 days of today, on or before 5.00pm on 31 December 2004, the balance to be payable within 7 days of the date of transfer of the easement. 4Annexed to the consent orders and marked "A" was a surveyor's plan showing the encroachments. 5Subsequently, a copy of the orders was typed and signed by the Registrar: paragraph 3 of the typed orders contains an inconsequential typographical error in that the word "her" appears as "there". 6It is extraordinary that the non-compliance with Order 3 made in 2004 did not resurface in the form of a contempt motion until 10 years later. The respondent is aged 83 and has resided at 132 Sutherland Street, Mascot since 1966. The applicant, who is aged 65, has owned the adjoining residence at 134 Sutherland Street, Mascot since 1994. Between about 2003 and 2004, there was a dispute between them regarding alleged encroachments onto the applicant's land. In 2004 the applicant commenced these proceedings objecting to the alleged encroachments under the Encroachment of Buildings Act 1922. In October 2004, the parties executed a deed of settlement. 7The deed was superseded on 17 December 2004 when the consent orders to which I have referred were made. 8On 21 December 2004 the respondent's son wrote to the applicant enclosing a cheque for $800 in accordance with Order 4. 9On 11 January 2005 the applicant wrote to the respondent's son enclosing a draft transfer granting easement and a new plan that had been prepared by a surveyor, and asking him to arrange for the respondent to sign the documents. 10Shortly afterwards, he replied by letter objecting to the new plan as not being a correct representation of the easement the subject of the Court's orders as shown on the sketch plan annexed to those orders. That objection was well founded. The applicant's new plan understated one of the encroachments on the plan attached to the orders and completely omitted another encroachment shown on the plan attached to the orders. 11On 28 January 2005 the applicant wrote to the respondent asserting that the Land Titles Office required a new plan for the transfer of granting easement and that the plan that the applicant had earlier forwarded was based on a correct survey according to the Land Titles Office and that "both you and I must sign it". 12On 14 February 2005 the respondent's son wrote to the applicant on behalf of his mother reiterating that the applicant's drawing was not a correct representation of the easement as agreed by the applicant as per the Court order. 13On 24 February 2005 the applicant wrote to the respondent enclosing a further copy of the draft transfer granting easement and the new plan and stating that if the documents are not returned by the requested date that she would invoke her right to refuse the respondent any easement and the matter would be returned to the Land and Environment Court (at further cost to the respondent) and full compensation as allowed by law would be sought for the respondent's unauthorised use of the applicant's property. 14On 3 March 2005 the respondent's son wrote to the applicant on behalf of his mother reiterating that the latter's survey drawing was not a correct representation of the easement as agreed by the applicant and as per the Court order. He noted that his mother had already paid $800 in respect of legal costs and disbursements in accordance with the Court orders and requested that the easement be granted no later than 14 days from the date of the letter. 15Neither the respondent nor her son received any further communication from or on behalf of the applicant during the period between 3 March 2005 and 9 December 2013. 16In December 2013 an event occurred which led five months later to the institution of the contempt proceedings. On or about 9 December 2013 the respondent received a notice from NSW Land and Property Information that a caveat had been recorded on the title of her property by the applicant, whose surname was apparently now Kessly. The particulars given of the claimed estate or interest was "equitable interest in the land held by the registered proprietor deriving benefits and enjoyments of the part of the land at 132 Sutherland Street, Mascot NSW 2020 held by the caveator at the detriment of the caveator". To say the least, it is unlikely that this shows a caveatable interest; however that does not arise for decision in these proceedings. 17On 22 January 2014 solicitors representing the applicant wrote to the respondent claiming that the respondent was indebted to the applicant for $6,600 (excluding interest) on unpaid judgment debt to date, as ordered by the Land and Environment Court on 17 December 2004. The letter stated that they had been informed that the applicant had exhausted her efforts to the recover the judgment debt despite her countless attempts to resolve the issue amicably over the course of the past nine years. A demand was made that the respondent pay $12,246.74 on account of the judgment debt plus interest accrued up to the date of the letter pursuant to the Civil Procedure Act 2005, and that she execute the transfer granting easement and the survey drawing indicating the easement (a reference to the applicant's new plan back in 2005) and return it to the solicitor's office strictly by 5.00pm on 18 February 2014. The letter threatened that if that did not happen, the solicitors would pursue further legal actions to recover the amount outstanding, together with legal costs and interest, on actions in contempt without further notice. The letter proceeded to record a "generous gesture" from the applicant as the respondent's neighbour that she was prepared to accept instalments on a certain basis. 18On 23 January 2014 the respondent's solicitor wrote to the applicant's solicitor requesting they obtain their client's instructions as to her intention to comply with the orders made by the Court on 17 December 2004, and also asserting that the applicant did not have a caveatable interest over the respondent's property and inviting the applicant to have the caveat withdrawn. 19On 31 January 2014 the applicant's solicitors wrote to the respondent's solicitors demanding that the respondent agree to pay the sum of $10,950.56 within seven days after registration of the (applicant's) proposed easements. 20On 5 February 2014 the applicant's solicitors wrote to the respondent's solicitors conceding that the applicant had in fact received the $800 payment (referred to above) and demanding that the respondent agree to pay the sum of $9,792.38 within seven days after registration of the proposed easement. 21On 12 February 2014 the respondent's solicitors wrote to the applicant's solicitors noting that the transfer of granting easements prepared by the applicant did not comply with the Court's orders in that the applicant's proposed plan did not depict the encroachments across the whole boundary. They reiterated that the respondent was prepared to finalise the matter in accordance with the Court's orders and only in accordance with those orders and not another survey that did not depict the entire encroachment. 22On 21 February 2014 the applicant's solicitors wrote asserting that in order for the Court orders of 17 December 2004 to be understood, "the diagram should be interpreted in reference to the issues that were put to the Court" and that the respondent must concede that she cannot maintain that she is only required to pay "the nominal judgment sum". 23On 6 March 2014 the respondent's solicitors wrote to the applicant's solicitors explaining the discrepancies between the sketch plan that was the subject of the Court's 2004 orders and the applicant's plan and offering to pay $6,000 in lieu of the sum of $5,000 ordered by the Court if the matter could be finalised immediately. 24Further correspondence ensued between the solicitors in March, April and May 2014 which did not resolve the disputation between the parties. 25On 14 May 2014 the applicant's solicitors sent an email to the respondent's solicitors informing them that they had ceased to act for the applicant and that the file would be transferred to her new solicitors. 26The respondent's notice of motion for contempt was filed on 25 July 2014. The applicant personally appeared at directions hearings where she was represented by counsel. A direction was made that she file and serve her evidence by 15 October 2014. She has not filed or served any evidence. 27As stated earlier, she did not appear at the substantive hearing of the notice of motion today, although a solicitor appeared on her behalf for the limited purpose of applying for an adjournment of the hearing which I refused, after which he withdrew. 28There is no doubt that the applicant has not complied with Order 3 made in 2004 to "use her best endeavours to register the transfer on or before 31 January 2005". Moreover, her solicitors made it clear in their letter of 22 April 2014 that she had no intention of complying with those orders. The claims made in that letter as the basis of her refusal to comply with the orders were that further structures were thereafter erected by the respondent amounting to further encroachments, comprising windows and sewerage ventilation pipes which produced unbearable odours; and, in addition, that the respondent and her son or a male relative made a threat to the applicant and her husband by allegedly gesturing his finger slashing the air across his neck. The respondent denied the allegations. No evidence has been adduced by the applicant in support of them. Accordingly there is no evidentiary foundation for accepting them. Even if they were true, they would not provide any basis for her refusal to comply with the orders. 29The respondent has had ample opportunity in the months since the notice of motion was filed on 25 July 2014 to purge her contempt by registering the transfer granting easement in the form ordered by the Court on 17 December 2004. It seems clear that she has no intention of doing so unless compelled by the Court. 30I am satisfied beyond reasonable doubt that the alleged contempt has been proved. 31The notice of motion also seeks an order under r 40.7(5) of the Uniform Civil Procedure Rules 2005 dispensing with the requirement for personal service of a sealed copy of the 2004 orders on the applicant. The applicant personally signed those orders on the date that they were made. It is clear that she was already in possession of a sealed copy of the orders in December 2013 when she annexed a copy of it to her caveat lodged at that time. Her lawyers thereafter engaged in correspondence over a five month period on her behalf regarding the requirements of the orders and she was specifically warned that enforcement proceedings would be commenced if she did not comply with them. In the circumstances, I consider that it is appropriate for the Court to now dispense with the requirement for personal service of the orders. 32The notice of motion seeks the rather drastic punishment for contempt of committing the respondent to imprisonment. 33Since the real purpose of the contempt proceedings is to enforce Order 3 made in 2004, I suggested to the respondent, who embraced the suggestion, that it would instead be appropriate to make orders for execution of a transfer of easement in compliance with Order 3, including provision for the Registrar of the Court to execute the document if the applicant fails to do so, pursuant to s 94 of the Civil Procedure Act 2005. Such a regime is quite common in orders in equity for specific performance. Section 94 provides: 94 Failure to comply with order to execute instrument (1) If any person does not comply with a judgment or order directing the person: (a) to execute any conveyance, contract or other document, or (b) to endorse any negotiable instrument, the court may order that the conveyance, contract or other document be executed, or the negotiable instrument endorsed, by such person as the court may nominate for that purpose. (2) A conveyance, contract, document or instrument that is executed or endorsed pursuant to an order under subsection (1) operates, and is for all purposes available, as if it had been executed or endorsed by the person originally directed to execute or endorse it. 34I also propose to impose by way of punishment for the contempt that the applicant pay on an indemnity basis the costs of the contempt proceedings and the costs of the respondent in complying with the orders that I have proposed. 35The orders of the Court are as follows: (1)Dispense with the requirement for personal service on the applicant of a sealed copy of the orders made by the Court on 17 December 2004. (2)The applicant is adjudged guilty of contempt of Court as charged for disobeying Order 3 made by the Court on 17 December 2004. (3)On or before 19 November 2014 the respondent is to prepare and deliver to the applicant's address for service or to the applicant's solicitors if she has solicitors then acting for her in these proceedings, a Transfer Granting Easement with plan in registrable form ("Transfer") in accordance with Order 3 of the orders made in these proceedings on 17 December 2004. (4)The parties are to attend before the Registrar of this Court at 9.30 am on 3 December 2014 when the applicant is to hand to the respondent the Transfer duly executed by the applicant, together with the certificate of title. (5)If the applicant fails to attend in accordance with Order 4 or fails to execute and hand over the Transfer, the Registrar shall execute for and on behalf of the applicant a transfer in the same form (to be provided by the respondent) pursuant to s 94 of the Civil Procedure Act 2005 and deliver it to the respondent's solicitors. (6)The respondent will thereafter use her best endeavours to effect registration of the Transfer as soon as practicable, and to thereafter return the certificate of title to the applicant's address for service or to the applicant's solicitors if she then has solicitors acting for her in the proceedings. (7)The applicant is to pay the respondent's costs on an indemnity basis relating to compliance with the above orders. (8)The applicant is to pay the respondent's costs on an indemnity basis of and incidental to the respondent's Notice of Motion for contempt filed on 25 July 2014, which costs are assessable and payable forthwith. (9)The respondent may set off the monies that the respondent becomes liable to pay to the applicant under the Orders made on 17 December 2004 against the costs referred to in Orders 7 and 8 above, or part thereof. (10)Liberty to apply on 3 days' notice. (11)The respondent is to deliver a copy of these orders to the applicant's address for service within seven days. 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: 30 October 2014