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Henri Walter Aram v The Owners Strata Plan No 20175 [2012] NSWSC 1273 | Case summary | Zoe

NSWNSWSC

Henri Walter Aram v The Owners Strata Plan No 20175

[2012] NSWSC 1273

Supreme Court of NSW|2012-10-10|Before: McDougall J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2012-10-10

Before

McDougall J

Source

Original judgment source is linked above.

Judgment (2 paragraphs)

[1]

Judgment (ex tempore - revised 10 october 2012) 1HIS HONOUR: The plaintiff (Mr Aram) is the proprietor of a lot in strata plan 20175. The defendant (the Owners Corporation) is the Owners Corporation for that strata plan. Mr Aram commenced these proceedings to obtain orders compelling the Owners Corporation to perform its statutory obligations of maintenance and repair. He claimed that there were defects in the common property which had a significant adverse impact on his lot. 2That dispute was compromised, and orders were made by consent on 18 April 2012. I set out the orders made, so far as they are relevant:

An order that the Defendant, pursuant to section 62 of the Strata Schemes Management Act 1996 undertake rectification work to the common property of Strata Plan 20175 in accordance with the recommendations of Mr McMillan in the joint report of Mr McMillan and Mr Blacker with the exception of new paving, whereby in substitution of new paving; (a) the Defendant will source pavers presently laid on the adjoining rooftop common property, of the same style as those presently in situ on the Plaintiff's roof top terrace, and replace each existing paver which is dilapidated whether by the loss or aggregate or some other form of dilapidation; and (b) the Defendant warrants that the quality of the substituted pavers (selected from the adjoining roof top common property) will be better quality than the pavers being replaced such rectification work to be carried out by a contractor duly licensed in accordance with the provisions of the Home Building Act 1989 (NSW) and whose identity is disclosed to the Plaintiff.

The Plaintiff will use best endeavours to provide access to the Defendant to facilitate the Defendant's compliance with Order 2 hereinabove. IV. Reserves liberty to apply on 3 days' notice. 3Mr Aram asserted that the Owners Corporation was not complying with its obligations under the Court's orders in various ways. Accordingly, by leave that I granted, he filed a Notice of Motion on 17 August 2012 seeking orders that the Owners Corporation be found guilty of, and punished for, contempt of court, together with ancillary relief. As required by SCR Part 55 Rule 7, Mr Aram filed with his Notice of Motion a Statement of Charge which he says specified the contempt of which the Owners Corporation was said to be guilty. 4Matters moved along from there, and it appears to be common ground that the works have, in substance if not in their entirety, been completed. Mr Aram has amended his Notice of Motion. The effect is to extend the orders in respect of which it is said the Owners Corporation is guilty of contempt. He has also sought to amend his Statement of Charge in various ways. Most of those amendments are by consent, and need not be mentioned. One was opposed, but, in the result, I do not think the opposition goes anywhere. 5However, the Owners Corporation has moved for an order that the Statement of Charge (as amended or proposed to be amended) be struck out or quashed. To understand the basis of this application, it is necessary to look at some of the details of the Statement of Charge, and to bear in mind that (as White J observed in ASIC v Sigalla [2010] NSWSC 606 at [12]) the application should be dealt with similarly to an application to strike out a pleading. 6Paragraph 1 of the Statement of Charge sets out the orders made by the Court and, by the amendment sought, would allege that those orders were known to the Owners Corporation. Mr Duggan of counsel, who appeared for the Owners Corporation, opposed that amendment, on the basis that the means of knowledge were not specified. However, particulars of the allegation have been sought and given. Mr Aram, by those particulars, made it clear that his case was that the orders were known to the Owners Corporation by two means. 7The first means alleged was that the chairman of the Owners Corporation was present in Court when the orders were made. The second means was that a copy of the orders was served on the solicitors for the Owners Corporation some eight days after the orders were made. 8In submissions today, Mr Sirtes of Senior Counsel, who appeared with Mr English of counsel for Mr Aram, added that in any event the very fact that the orders were made by consent would suggest (as obviously it does) that their content was known to the Owners Corporation. Thus, the only relevant additional factor was knowledge (on any view obtained by the Owners Corporation by its chairman's being in court at the relevant time) that the Court had pronounced the agreed orders. 9Mr Duggan accepted that if that were the case sought to be made out through paragraph 1 of the Statement of Charge, then he would not press his challenge to the amendments sought. 10Thus, I interpose to give leave to Mr Aram to amend his Statement of Charge in terms of the document that I shall initial and date today's date. 11Paragraph 2 of the Statement of Charge alleges that the Owners Corporation was guilty of contempt because, in breach of order 2(b) made on 18 April 2012, it failed to undertake the relevant works as expeditiously as possible subject to rain. There are some 13 paragraphs of particulars given of that allegation, some of which paragraphs themselves contain additional subparagraphs. In essence, the particulars given allege that: (1) the Owners Corporation engaged a builder, which builder commenced work on 9 May 2012; (2) certain works were carried on between 9 May and 21 June 2012; (3) no work had been done since that last date (I interpose to note that this is now incorrect, although no application has been made to amend the relevant particulars); (4) there was still a significant portion of works incomplete (I make the same observations); (5) there were various meetings and other activities in relation to glazing works; (6) rainfall and other meteorological observations are set out; and (7) no commencement date has been provided for the completion of the remaining works (again, this is now incorrect, but no application for leave to amend has been made). 12Mr Duggan put two broad submissions in relation to paragraph 2. The first is that, although the contempt alleged is of necessity wilful contempt (because both the Notice of Motion and the Amended Notice of Motion sought an order that his client be punished for the alleged contempt), there was no allegation of wilfulness. 13The second complaint made was that the allegations did not specify why it was that the chronology alleged demonstrated that the work had been done other than as expeditiously as possible, subject to rain. 14Mr Duggan submitted that there was no allegation of what it was that the Owners Corporation had done wrongly, or incorrectly; when was it that the works should have been completed; in what did the relevant lack of expedition lie; and why was such delay as might be inferred was wilful or intentional. 15Mr Sirtes responded by referring to a suggested threefold distinction between technical contempt, wilful contempt and contumacious contempt: see Biscoe J in Mosman Municipal Council v Kelly (No. 3) [2009] NSWLEC 92 at, in particular, [72] and following. Quite why that submission was relevant to the particular complaints made was a matter that I had, and have, difficulty in understanding. It was common ground, as Mr Sirtes accepted, that Mr Aram's case was one of wilful contempt. Thus the first suggested category, of technical contempt, can be ignored. 16Equally, as Mr Sirtes submitted and Mr Duggan accepted, contumacy is a matter going to penalty only. Thus, the third suggested category, of contumacious contempt, can be put aside. The result, as I have indicated, is that the argument is to be conducted on the basis that the case is one of wilful contempt. 17In cases of wilful contempt, it is established that wilfulness is an essential element of the complaint. In Markisic v Commonwealth of Australia (2007) 69 NSWLR 737, Campbell JA (with whom Handley AJA and Bell J agreed) pointed out at [62] that there was a mental element alleged in contempt of court. At [63] his Honour noted the distinction between, on the one hand, "casual, or accidental or unintentional disobedience" and, on the other, "deliberate disobedience". At [64], and referring to the decision of the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station (1986) 161 CLR 98 at 112- 113, his Honour noted that the imposition of punishment (which is what Mr Aram seeks) is justified only where there is wilful disobedience, in the sense of deliberate action or in action that is not casual, accidental or unintentional. His Honour concluded: Thus, proof that a contempt has been committed by breaching a court order involves proving enough to conclude that the action or inaction said to constitute the breach was deliberate, and not casual, accidental or unintentional. Consistently with Witham [v Holloway (1995) 183 CLR 525], that needs to be proved beyond reasonable doubt. 18Returning to the contempt alleged by paragraph 2 of the Statement of Charge, it thus needs to be proved, beyond reasonable doubt, that there was deliberate action or inaction involving breach of the Court's orders. 19In my view, it is not necessary for Mr Aram to allege (as Mr Duggan said he should) who in particular on behalf of the Owners Corporation was responsible for the actions or inactions in question. It is sufficient to allege that those actions or inactions were those of or attributable to the Owners Corporation, and involved breaches (in the particularised respects) of the relevant aspect of the Court's orders. 20However, in my view, there is substance in Mr Duggan's alternative complaint. The complaint that is made (necessarily, having regard to the form of the orders) is that the contempt consists in failing to undertake the work as expeditiously as possible, subject to rainfall. But there is no allegation as to when it is that the work should have been completed, leaving aside the question of rainfall. There is no doubt that the work was commenced well within the time limited by the Court's orders. It may be - I do not know - that the work should have been completed by the time the original Notice of Motion was filed on 17 August 2012. It may be - again, I do not know - that the evidence for Mr Aram would establish that. But what we are presently concerned with is the adequacy of this paragraph of the Statement of Charge. 21The statement of charge must set out all matters relied upon to demonstrate the contempt. It is not sufficient that some of those matters might be found in (or gleaned or inferred from) the affidavits served in support of the notice of motion. See Macfarlan JA in King v Health Care Complaints Commission [2011] NSWCA 353 at [82], [83]; I do not understand what his Honour there said to be in any way inconsistent with the separate (majority) reasons of McColl JA and Handley AJA. 22To my mind, if the paragraph is to set out the requisite elements of the particular contempt that it seeks to allege, it needs to do more than set out a mere chronology of what had happened. It needs to allege material facts, which if proved, would show that acting in the manner alleged by that chronology (assuming that it is to be established) would have amounted to wilful want of appropriate expedition. 23In my view, the failure of paragraph 2 to allege material facts which show wilful want of due expedition is a fatal defect. Thus, that paragraph should be struck out. 24I turn to paragraph 3 of the Statement of Charge. That paragraph alleges that, in breach of order 1(a) the Owners Corporation replaced dilapidated pavers with pavers sourced otherwise than from those presently laid on the adjoining rooftop property. 25Some eight paragraphs of particulars were given. Again, those paragraphs relate to matters of chronology, and matters of circumstance, from which (if evidence were given in support of them) it might be inferred that some pavers had been used which were taken other than from those presently laid on the adjoining rooftop common property. But it is not shown that this failure was anything other than casual, accidental or unintentional. More importantly, there is no allegation of a material fact to show that doing the work in the way done was done with the wilful intention of disregarding the Court's orders rather than because (as the particulars themselves suggest) it may not have been possible to find pavers from the adjoining rooftop common property of a sufficient quality to make the work of replacement efficacious. 26In my view, paragraph 3 does no more than allege what at most (adopting the tripartite classification adopted by Biscoe J) might be a technical contempt. It does not go far enough to show wilful contempt. Thus, it too should be struck out. 27Paragraph 4 alleges "breach of order 1(b) by use of pavers that were not of better quality than the pavers being replaced". 28Looking at the orders, paragraph 1(b) operates as a warranty to be given (or in fact given) by the Owners Corporation. Breach of warranty sounds in damages. It does not in my view amount to a contempt of the Court unless, perhaps, the warrantor undertakes to the Court that it will perform or honour the warranty. The orders in the present case do not have that effect. Thus, paragraph 4 should be struck out. 29Paragraph 5 alleges a breach by undertaking work other than in accordance with the recommendations of Mr McMillan. There are some six paragraphs of particulars given. In essence, the complaint is that Mr McMillan's recommendation was to strip off entirety the existing membrane, prepare the substrate and apply two new layers of premium grade, torched-on membrane, and to replace all the flashings. The particulars suggest that the builder started to do the work in a different, and it may be inferred less efficacious, way. But it is also alleged that, upon complaint of this being made, the partially completed works were stripped away and the new works were done entirely in accordance with Mr McMillan's recommendations. Those works were completed well within the six week period which the orders allowed for the commencement of the works. 30It may be that if the Owners Corporation had failed to ensure that the works were done as required, then the case of contempt might have been made out. But at most, it seems to me, the particulars do no more than establish that the Owners Corporation, or more accurately the builder retained by it, started to do the works in an insufficient way, and upon this being pointed out, undid what it had done and did them properly. That may have been an inefficient and inexpeditious way of doing the works. But in circumstances where the particulars to paragraph 5 are not relied upon as particulars of want of expedition, that goes nowhere. And doing the works in an inefficient way does not seem to me to capable of amounting to a wilful contempt of court. Thus, in my view, paragraph 5 also should be struck out. 31It follows in my view, that the whole of the Statement of Charge, insofar as in paragraphs 2 to 5 it alleges specific acts or omissions amounting to contempt, should be struck out. 32I will hear counsel on the orders to be made.