Hutley v Cosco

Land and Environment Court (NSW)|2015-11-04|Before: Pain J

SOLICITORS: Holman Webb (Applicant) N/A (Respondent) File Number(s): 40725 of 2015

Judgment

The parties asked the Court to make consent orders on 28 August 2015 which required the Respondent to build a retaining wall within one month and a boundary fence on top by 9 October 2015. When this did not occur the Applicants filed a Statement of Charge of contempt of court and a Notice of Motion dated 14 October 2015 seeking a finding of civil contempt.
The Respondent accepted that the building work the subject of the consent orders was not carried out in the required timeframe of one month. At the adjourned hearing on 15 February 2016 the Court was informed that all the work required by the orders had been completed. The Applicants accepted that had occurred. What remains for me to determine is whether the contempt is proven and what sentence if any is appropriate.
In the course of the contempt proceedings a second Notice of Motion dated 4 November 2015 was filed by the Applicants supported by an affidavit of Mr Grant Hansen solicitor dated 4 November 2015. That Notice of Motion sought an order restraining the carrying out of work which did not ultimately need to be pressed by the Applicants. The Applicants now seek their costs of that motion. I will deal with that costs application later in the judgment.

Consent orders dated 28 August 2015

The consent orders of 28 August 2015 stated: 1. A retaining wall is to be built by 28 September 2015 which abuts the boundary between 32 and 34 Glassop Street, Balmain, as shown in the survey by CBD Surveying Services Pty Ltd of 21 August 2013, being Annexure "A" to these orders and in this regard: (a) The entire cost of the retaining wall is to be borne by the respondent. (b) The structural plans for the retaining wall must be agreed by engineers approved by the applicants acting reasonably. (c) The construction of the retaining wall, including drainage, must be inspected and agreed as adequate by engineers approved by the applicants acting reasonably; (d) If the design of the retaining wall requires piles, these must be bored, not driven. (e) The top of the retaining wall must be to the ground level that existed prior to excavation being the level shown in the attached levels diagram annexed and marked "B". (f) Backfill must be made between the retaining wall and the property at number 32 to the type, quality and degree of compaction that existed prior to the excavation. All backfilling materials to be agreed by an engineer approved by the applicants acting reasonably. (g) Drainage from behind the retaining wall be made into the property at number 34. 2. A new fence is to be built by 9 October 2015 along the entire boundary between number 32 and 34 Glassop Street on the boundary as shown in the survey being Annexure "A" to these orders and in that regard: (a) The entire cost of the fence is to be borne by the Respondent. (b) The mid line of the fence is to be on the boundary as shown in Annexure "A". (c) The fence is be constructed of H4 treated pine to a height above the ground level that existed prior to the excavation of number 34, as shown in Annexure "B", no less than, and no more than 180 cm. (d) Posts for the fence are to be set into concrete and are to be constructed of galvanised steel. (e) The fence is to be lapped and capped. 3. The Respondent to pay the Applicant[s'] costs of the proceedings to date as agreed or assessed. 4. The Court notes the agreement of the parties to dismiss Local Court proceedings 2015/00230993 with no order as to costs. 5. Otherwise discharge Orders 1 and 2 made in these proceedings on 20 August 2015.

Notice of Motion for contempt dated 14 October 2015

The Applicants' Notice Motion of 14 October stated: 1. That the Respondent be found guilty of civil contempt of this Court for failing to comply with consent orders 1 and 2 of [sic] made by Craig J on 28 August 2015, in that the Respondent has: (a) failed to build or cause to be built a retaining wall or any part of it by 28 September 2015 as required by order 1(a) to (e); (b) failed to backfill or cause to be backfilled the space between the required retaining wall and the Applicants' property by 28 September 2015 as required by order 1(f); (c) failed to build or cause to be built a fence by 9 October 2015 as required by order 2; and (d) commenced construction of a wall on 8 October 2015 without approval or inspection as required by orders 1(b) and (c). 2. That the Respondent be punished for disobeying the orders by fine …

Statement of Charge

The Statement of Charge stated: 5. The Respondent is guilty of civil contempt of the Court in that in breach of order 1 of the Consent Orders, the Respondent has not built or caused to be built a retaining wall along the complete boundary between 32 and 34 Glassop St, Balmain by 28 September 2015. Particulars (a) The Respondent has been in possession of geotechnical advice regarding the construction of the retaining wall since prior to the Consent Orders being made. (b) The Respondent did not submit structural plans for the retaining wall capable of being completed by the date specified in Order 1. (c) The Respondent submitted to the Applicants' nominated engineer plans for a wall which would not act as a retaining wall until construction of the first floor slab of the house on 15 September 2015. (d) The Applicants' nominated engineer provided comments on the structural plans on 23 September 2015 and again on 28 September 2015. (e) The Respondent has not indicated whether he agrees to the comments of the Applicants' nominated engineer. (f) The structural plans submitted by the Respondent do not provide for backfill of the retaining wall. (g) On 8 October 2015, the Respondent commenced construction of a wall along the boundary between his and the Applicants' property, despite there being no agreement between the Applicants and Respondent as to the plans for the retaining wall. (h) On 8 October 2015, the Respondent commenced construction of a wall along the boundary between his and the Applicants' property, without giving the Applicants' engineer an opportunity to comment and approve the works. 6. The Respondent is guilty of civil contempt of the Court in that in breach of order 1(f) of the Consent Orders, the Respondent has not backfilled or caused to be backfilled the space between the required retaining wall and the Applicants' property by 28 September 2015. Particulars (a) The Respondent has not communicated with the Applicants or their /nominated engineer in respect of the timing of the backfill, or its type, quality, or degree of compaction (b) On 8 October 2015, the Respondent wrote to the Applicants' solicitors proposing a revised timetable for construction of the retaining wall. The Respondent['s] proposed timetable did not refer to the backfilling required by order 1(f). 7. The Respondent is guilty of contempt of the Court in that in breach of order 2 of the Consent Orders made, the Respondent has not built or caused to be built a fence in the form as required by Order 2. Particulars (a) The temporary barrier erected by the Respondent does not run along the entire boundary as shown in Annexure "A"; (b) The temporary barrier erected by the Respondent is wholly within the Applicants' premises at 34 Glassop St, Balmain; (c) The temporary barrier was attached to the Applicant[s'] house and was not on the boundary between 32 and 34 Glassop St as shown in Annexure "A" to the orders made; (d) The temporary barrier erected [by] the Respondent was not to the height of 180cm above the ground level that existed prior to the excavation of 34 Glassop St as shown in Annexure "B"; (e) The temporary barrier erected by the Respondent did not have posts made of galvanised steel; (f) The temporary barrier erected by the Respondent was not lapped and capped.

Applicants' evidence in contempt proceedings

The Applicants' evidence comprised: 1. affidavit of G Hansen (the Applicants' solicitor) sworn 15 October 2015 and accompanying exhibit (Exhibit E), part read; 2. affidavit of G Hansen sworn 12 February 2016 and accompanying exhibit, part read, with particular focus on tab 6 - two drawings labelled DA 02C and DA 01C; 3. affidavit of A Cosco (Respondent) sworn 2 November 2015 and annexures, part read; 4. affidavit of A Wright (the Respondent's expert engineer) sworn 2 November 2015 and annexures; 5. transcripts of 16 and 17 November 2015; 6. Exhibit H - plan of the February s 96 application; 7. affidavit of V Hutley (First Applicant) sworn 20 August 2015 and exhibit VH-1 (Exhibit D), part read; and 8. Exhibit G - chain of emails between Mr Wright and Mr Mongey (the Applicants' engineer).

Respondent's evidence in contempt proceedings

The Respondent's evidence comprised: 1. affidavit of A Cosco sworn 12 February 2016; 2. affidavit of A Cosco sworn 17 December 2015; 3. affidavit of A Cosco sworn 2 November 2015, part read, and Exhibit AC2 (Exhibit 2); 4. affidavit of A Cosco sworn 12 November 2015, part read; 5. affidavit of A Wright sworn 2 November 2015 and annexures; 6. Exhibit 1 - "Ground floor slab plan and sections", drawing S4 of Mr Wright dated June 2015; 7. Exhibit 3 - report of A Wright filed in Court 15 February 2016; 8. transcripts of 16 and 17 November 2015 court hearings; 9. Exhibit F - annexures to the affidavit of G Hansen sworn 4 November 2015.
Oral evidence was given by the Respondent and Mr Wright during the hearing of 16 and 17 November 2015. On 16 November 2015 Mr Wright was cross-examined on the design he produced for the retaining wall. He gave evidence that due to the length and height of the wall, the retaining wall required bracing otherwise it would have needed to be very thick. The 28 August 2015 orders specified that there be backfill between the retaining wall and the property at No 32. The Respondent was cross-examined on the design for the retaining wall on the basis that the lower section of the wall was not retaining and incapable of supporting the required backfill. This was ultimately resolved during the hearing as recorded in an email of 10 November 2015 which outlined an engineering solution to the backfill issue. The Respondent was also cross-examined on encroachment onto the Applicants' land and the numerous surveys that had been obtained of the land. The Respondent stated in cross-examination that he was aware of the encroachment at the time of the hearing of the second Notice of Motion on 4 November 2015 and that the email he sent that day to the solicitors for the Applicants to the contrary was incorrect. The Respondent confirmed in cross-examination that he was aware that the 28 August 2015 orders imposed a personal obligation on him to complete the works within the specified timeframes. He stated that at the time of the 28 August 2015 orders he believed that the works could be completed on time.

Chronology

A chronology of relevant events based on the affidavit evidence and court file follows: 1. 28 August 2015 - consent orders made by Craig J requiring the retaining wall and boundary fence to be completed by 28 September 2015 (Affidavit G Hansen 12 February 2016, [13]). 2. 28 August 2015 - the Respondent commenced excavation of the rock abutting the boundary with No 32 (Affidavit A Cosco 2 November 2015, [12]). 3. 28 August 2015 - emails from John Cosco (the Respondent's father) to Mr Wright (the Respondent's structural engineer), Mr Hulskamp (the Respondent's geotechnical engineer) and Mr Norton (the Respondent's surveyor) discussing compliance with the consent orders and stating that the Respondent estimated the excavation to take one week (Affidavit A Cosco 2 November 2015, Ex AC-2, tab 2; Affidavit A Wright 2 November 2015, Annexure A, [1]-[2]). 4. 28 August 2015 - meeting between Mr Wright and John Cosco to discuss the requirements for the retaining walls (Affidavit A Wright 2 November 2015, Annexure A, [3]). 5. 28 August 2015 - phone call between Mr Wright and Mr Hulskamp to request the design parameters for the retaining wall (Affidavit A Wright 2 November 2015, Annexure A, [4]). 6. 29 August 2015 - Mr Wright received an email from John Cosco with sketches of the retaining wall and specifications (Affidavit A Wright 2 November 2015, Annexure A, [5]). 7. 31 August 2015 - Mr Wright received an email from John Cosco with an attached sketch and requirements for the retaining wall (Affidavit A Wright 2 November 2015, Annexure A, [6]). 8. 31 August 2015 - email from the Respondent to the solicitors for the Applicants requesting contact details for the Applicants' engineers (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 4). 9. 31 August 2015 - email from Mr Hansen to the Respondent requesting that he contact the Applicants personally (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 5). 10. 1-3 September 2015 - email chain between the Applicants and John Cosco (Affidavit A Cosco 2 November 2015, Ex AC-2, tab 4). 11. 3 September 2015 - meeting between Mr Wright and John Cosco to discuss the various retaining wall solutions (Affidavit A Wright 2 November 2015, Annexure A, [7]). 12. 6 September 2015 - email from Mr Wright to Mr Hulskamp requesting advice regarding lateral loads (Affidavit A Cosco 2 November 2015, Ex AC-2, tab 5; Affidavit A Wright 2 November 2015, Annexure A, [8]). 13. 7 September 2015 - email from Mr Hulskamp in reply to Mr Wright (Affidavit A Wright 2 November 2015, Annexure A, [9]). 14. 8 September 2015 - email from John Cosco to Mr Wright with attached photographs of progress (Affidavit A Wright 2 November 2015, Annexure A, [10]). 15. 8 September 2015 - Mr Wright emailed preliminary drawings to John Cosco and the Respondent for them to review (Affidavit A Wright 2 November 2015, Annexure A, [11]). 16. 9 September 2015 - meeting between Mr Wright, the Respondent and John Cosco (Affidavit A Wright 2 November 2015, Annexure A, [12]). 17. 9 September 2015 - email from John Cosco to Mr Wright (Affidavit A Wright 2 November 2015, Annexure A, [13]). 18. 10 September 2015 - bulk excavation completed seven days later than anticipated due to harder rock being encountered than expected (Affidavit A Cosco 2 November 2015, [17]). 19. 11-21 September 2015 - rock spoil removed from the site by the excavator (Affidavit A Cosco 2 November 2015, [18]). 20. 15 September 2015 - Geotechnical Report 4 prepared by Mr Hulskamp (Affidavit A Cosco 2 November 2015, Ex AC-2, tab 6). 21. 15 September 2015 - proposed solution sent by Mr Wright to the Respondent, John Cosco and Mr Mongey (A Wright 2 November 2015, Annexure A, [14]). 22. 15 September 2015 - Mr Mongey received an email containing structural drawings from Mr Wright (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 6; Affidavit A Cosco 2 November 2015, [21]). 23. 21 September 2015 - final excavation work completed and rock spoil removed from site, 17 days later than anticipated. Excavator left the site, allowing workers to re-enter the site (Affidavit A Cosco 2 November 2015, [22]). 24. 22 September 2015 - cherry picker lift on site to carry out work on the high rock faces (Affidavit A Cosco 2 November 2015, [23]; Ex AC-2, tab 1). 25. 22 September 2015 - the Respondent engaged Warren Eldridge & Associates (surveyors) to peg out the four corners of the boundary and identify encroachments (Affidavit A Cosco 2 November 2015, Ex AC-2, tab 6). 26. 22 September 2015 - the Respondent and labourers carried out hand excavation and prepared the footings for the retaining wall abutting the northern six metres of the boundary. The Respondent reinforced the temporary supports for the existing boundary fence by fixing angled prop braces to the fence (Affidavit A Cosco 2 November 2015, [25], [26]; Ex AC-2, tab 1). 27. 23 September 2015 - email from Mr Mongey to Mr Wright in response to the structural documents provided, raising the issue of the 28 September deadline (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 7; Affidavit A Cosco 2 November 2015, [27]; Affidavit A Wright 2 November 2015, Annexure A, [15]). 28. 25 September 2015 - exchange of emails between the Applicants and John Cosco (Affidavit A Cosco 2 November 2015, Ex AC-2, tab 4). 29. 28 September 2015 - further review summary document sent to Mr Wright from Mr Mongey (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 9; Affidavit A Cosco 2 November 2015, [29]; Affidavit A Wright 2 November 2105, Annexure A, [16]). 30. 28 September 2015 - email from the solicitors for the Applicants to the Respondent enclosing a sealed copy of the 28 August 2015 consent orders (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 10). 31. 28 September 2015 - end of the 28 August 2015 consent order period. 32. 29 September 2015 - delivery of blocks for the retaining wall to the site (Affidavit A Cosco 2 November 2015, [30]). 33. 30 September 2015 - excavator returned to the site to remove the final rock spoil abutting the sidewalk (Affidavit A Cosco 2 November 2015, [31]). 34. 2 October 2015 - steel reinforcing bars for the retaining wall delivered to site (Affidavit A Cosco 2 November 2015, [32]). 35. 2 October 2015 - letter from Mr Hansen to the Respondent regarding compliance with the consent orders (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 11). 36. 2-3 October 2015 - the Respondent instructed his labourers to drill holes into the rock for the reinforcing bars for the retaining wall. The drill head failed twice and had to be replaced (Affidavit A Cosco 2 November 2015, [33]; Ex AC-2, tab 1). 37. 6 October 2015 - concrete level footings poured for the retaining wall (Affidavit A Cosco 2 November 2015, [34]). 38. 6 October 2015 - email from Mr Mongey to Mr Wright requesting confirmation of receipt of emails and reports of 23 and 28 September 2015 (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 12; Affidavit A Wright 2 November 2015, Annexure A, [17]). 39. 7 October 2015 - email sent by the Respondent to the solicitors for the Applicants outlining steps taken in furtherance of the consent orders (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 13). 40. 7-9 October 2015 - the Respondent's employees constructed the retaining wall along the front six metre section of the boundary (Affidavit A Cosco 2 November 2015, [35]). 41. 8 October 2015 - email from Mr Wright to Mr Mongey (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 14; Affidavit A Cosco 2 November 2015, [36]; Affidavit A Wright 2 November 2015, Annexure A, [18]). 42. 8 October 2015 - email from Mr Mongey to Mr Wright stating he had no doubt that the proposed wall design "is all in accordance with all geotechnical and structural requirements" but raising the issue of complying with the consent order timeframe (Affidavit A Wright 2 November 2015, Annexure A, tab 21; Affidavit A Cosco 2 November 2015, [37]; Affidavit A Wright 2 November 2015, Annexure A, [19]). 43. 8 October 2015 - Mr Wright advised by John Cosco not to reply to Mr Mongey until further notice (Affidavit A Wright 2 November 2015, Annexure A, [20]). 44. 10 October 2015 - email from the Respondent to the solicitors for the Applicants regarding alleged vandalism to the fence (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 15). 45. 11 October 2015 - email from the Respondent to the solicitors for the Applicants regarding alleged vandalism of the fence (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 16). 46. 12 October 2015 - the solicitors for Applicants attend the site and take photographs (Affidavit G Hansen 15 October 2015, [21]-[25]; Ex GH-1, tabs 17-21). 47. 13 October 2015 - two emails from Mr Hansen to the Respondent regarding the construction of the fence and responsibility for the removal of the existing fence (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 22). 48. 13 October 2015 - report sent by Mr Mongey to solicitors for the Applicants (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 23). 49. 13 October 2015 - email from the Respondent to Mr Hulskamp seeking advice in relation to what he meant in his reports by the phrases "short term" and "long term" (Affidavit A Cosco 2 November 2015, [38]). 50. 13-20 October 2015 - the Respondent completed formwork for the driveway access to the site, jack hammered pad footings into the rock for the structure and drilled star bar holes for the blade walls abutting the boundary with No 32 to support the retaining structure (Affidavit A Cosco 2 November 2015, [42]). 51. 14 October 2015 - email in reply from Mr Hulskamp to the Respondent advising that, "in our opinion, the bedrock exposed in the upper portion of the eastern cut face is considered to be self-supporting for many months, possibly one to two years. However, the upper bedrock profile is susceptible to weathering and therefore must be supported and protected in the long term from weathering to prevent potential undermining of the neighbouring house" (Affidavit A Wright 2 November 2015, Annexure A, [21]). 52. 14 October 2015 - email from the Respondent to Mr Hansen (Affidavit G Hansen 15 October 2015, Ex GH-1, tab 24). 53. 14 October 2015 - contempt proceedings commenced by Notice of Motion and Statement of Charge (Affidavit G Hansen 15 October 2015, [14]). 54. 14 October 2015 - the Respondent filled the retaining wall blocks with concrete (Affidavit A Cosco 2 November 2015, [40]). 55. 15 October 2015 - the Respondent backfilled the retaining wall in accordance with the engineer's specifications (Affidavit A Cosco 2 November 2015, [41]). 56. 16 October 2015 - John Cosco emailed a concept sketch of a fence bolted to the rock face to Mr Wright requesting engineering advice (Affidavit A Wright 2 November 2015, Annexure A, [22]). 57. 19 October 2015 - Mr Wright sent a copy of a sketch of the fence to John Cosco and the Respondent (Affidavit A Wright 2 November 2015, Annexure A, [23]). 58. 20 October 2015 - the Respondent set metal posts into the eastern rock face on the boundary abutting the stairway wall of No 32, attached corrugated steel retaining sheets to the posts, and backfilled with gravel from the footings up to the original ground level (Affidavit A Cosco 2 November 2015, [43]; Ex AC-2, tab 1, pp 8-9). 59. 23 October 2015 - the Respondent poured concrete for the driveway access (Affidavit A Cosco 2 November 2015, [44]). 60. 24 October 2015 - John Cosco sent to Mr Wright copies of documents (Affidavit A Wright 2 November 2015, Annexure A, [24]). 61. 24-27 October 2015 - the Respondent and workers formed the footings for the structure and placed the reinforcing steel (Affidavit A Cosco 2 November 2015, [45]). 62. 27 October 2015 - John Cosco sent to Mr Wright copies of two emails from Mr Hansen to the Respondent regarding the disagreement over the responsibility for the removal of the existing fence (Affidavit A Wright 2 November 2015, Annexure A, [25]). 63. 27 October 2015 - written reply sent by Mr Wright to Mr Mongey regarding Mr Mongey's review of Mr Wright's design (Affidavit A Wright 2 November 2015, Annexure A, [26]). 64. 28 October 2015 - email from Mr Mongey to Mr Wright regarding the need for a short-term retaining wall solution (Affidavit A Wright 2 November 2015, Annexure A, [27]). 65. 28 October 2015 - the Respondent's concreter poured the footings (Affidavit A Cosco 2 November 2015, [46]). 66. 29 October 2015 - email from Mr Wright to Mr Mongey disagreeing with respect to the need for the short-term retaining wall solution and suggesting a meeting on site (Affidavit A Wright 2 November 2015, Annexure A, [28]). 67. 29 October 2015 - email from John Cosco to Mr Wright attaching a copy of Mr Hulskamp's Affidavit and report (Affidavit A Cosco 2 November 2015, Annexure A, [29]). 68. 2 November 2015 - meeting on site with Mr Mongey, Mr Wright and the Respondent (Affidavit A Wright 2 November 2015, Annexure A, [30]). 69. 2 November 2015 - report prepared by Mr Wright, "Supplementary Structural Report on 34 Glassop Street, Balmain for Mr A Cosco". The report contains a chronology of events from 28 August 2015 until 2 November 2015. Mr Wright outlines his opinion on whether the geotechnical information on the rock encountered in the excavations was necessary for him to prepare his design and documentation for review, and whether the email he received on 8 October 2015 from Mr Mongey constituted an agreement to Mr Wright's plans (Affidavit A Wright 2 November 2015, Annexure A). 70. 4 November 2015 - second Notice of Motion hearing before Pain J. Applicants' Notice of Motion dated 4 November 2015 returnable instanter. Undertaking given by the Respondent not to undertake work on the boundary until further court order, and to allow the Applicants' surveyor onto the site at 9am on 5 November 2015 for the purpose of taking photographs and measurements of the boundary as necessary for a report. Notice of Motion stood over before Pain J on 6 November 2015. 1. 5 November 2015 - boundary survey obtained by the Applicants (Affidavit G Hansen 12 February 2016, [15]). 2. 6 November 2015 - second Notice of Motion listed before Pain J. Second Notice of Motion stood over before Pain J on 9 November 2015. The Respondent confirmed the undertaking given on 4 November 2015. 1. 9 November 2015 - second Notice of Motion part heard before Pain J. Second Notice of Motion of 4 November 2015 part heard and stood over before Pain J on 16 November 2015. 1. 16-17 November 2015 - Notice of Motion for contempt part heard before Pain J. The Applicants' Notice of Motion for contempt and the second Notice of Motion stood over to 18 December 2015 before Pain J. The Respondent's undertaking of 4 November 2015 was withdrawn. 1. 18 November 2015 - meeting between the Respondent and draftsperson to prepare plans for a s 96 modification application for the retaining wall (Affidavit A Cosco 17 December 2015, [5]). 2. 18 November 2015 - the Respondent set out the formwork frames for the ground floor slab and support columns (Affidavit A Cosco 17 December 2015, [6]). 3. 19 November 2015 - Mr Mongey annotated a drawing prepared by Mr Wright entitled "Eastern retaining wall longitudinal profile and details". Mr Mongey noted that the proposed retaining wall would not be able to be backfilled as the gravel would fall out. He noted a suggestion to extend the Dincel wall to the basement level (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 13). 4. 20 November 2015 - meeting between the Respondent and draftsperson to review plans for the s 96 application (Affidavit A Cosco 17 December 2015, [7]). 5. 20 November 2015 - the Respondent ordered reinforcing steel for the retaining wall (Affidavit A Cosco 17 December 2015, [8]). 6. 21 November 2015 - the Respondent ordered the fencing material to construct the front section of the boundary fence from Glassop St to the enclosed stairway wall at No 32 (Affidavit A Cosco 17 December 2015, [9]). 7. 21 November 2015 - the Respondent ordered the Dincel formwork panels for the retaining wall abutting the boundary with No 32 (Affidavit A Cosco 17 December 2015, [10]). 8. 23 November 2015 - meeting between the Respondent and draftsperson to finalise plans for the s 96 application (Affidavit A Cosco 17 December 2015, [11]). 9. 23 November 2015 - the Respondent commenced placing the frames, props, timber beams, and formply for the retaining wall structure abutting the boundary with No 32 (Affidavit A Cosco 17 December 2015, [12]). 10. 24-26 November 2015 - the Respondent continued construction of the formwork abutting the boundary with No 32 (Affidavit A Cosco 17 December 2015, [13]). 11. 26 November 2015 - Mention before Pain J. Consent orders made as follows: 1. The Applicants' Notices of Motion filed 14 October 2015 and 4 November 2015 are adjourned to 18 December 2015; 2. Costs reserved. 3. Liberty to apply on 24 hours notice. The Court notes: 4. The Respondent's structural engineer submitted to the Applicants' structural engineer on 18 November 2015 amended final drawings S4 and S8 for the construction of the retaining wall. 5. The Respondent undertakes to use his best endeavours to complete construction of the retaining wall and fence in accordance with the orders of the Court made on 28 August 2015 (save for the dates for completion of both structures) on or by 18 December 2015. 6. The Respondent will provide to the Applicants for their consideration a copy of the drawings in respect of which he will seek approval pursuant to s 96 of the Environmental Planning and Assessment Act for, inter alia, the construction of the retaining wall and fence. 7. The Respondent will make an application for s 96 approval by 27 November 2015 and in relation to the retaining wall the form of the plans shall be the form approved by the Applicants. 8. Upon completion of the formwork for the retaining wall and before pouring concrete to form up the wall (consequent upon approval being obtained for the amended plans), the Respondent will: (a) Obtain a surveyor's certificate confirming that the retaining wall is formed and will be constructed wholly upon the Respondent's land abutting the boundary and will provide a copy to the Applicants; (b) Notify the Applicants' structural engineer that the formwork has been completed and will facilitate inspection of the wall by the engineers for the Applicants and the Respondent. (c) The Applicants and the Respondents [sic] agree that the dividing fence to be constructed pursuant to Order 2 of the Consent Orders will incorporate the following detail: (a) Placement of steel posts on the boundary; (b) Installation of fence rails on the Applicants' side of the fence; (c) Installation of lapped palings on the Respondent's side of the fence. 1. 26 November 2015 - the Respondent removed the posts, rails, and palings of the front section of the boundary fence and dug post holes on the boundary for the new fence. Dincel panels delivered (Affidavit A Cosco 17 December 2015, [16]). 2. 26 November 2015 - the Respondent lodged a s 96 application (M/2015/237) (Affidavit G Hansen 12 February 2016, [19]; Ex GH-2, tabs 8 and 9; Affidavit A Cosco 17 December 2015, Annexure B). 3. 27 November 2015 - the Respondent constructed the Dincel wall support structure abutting the boundary. Fence material delivered (Affidavit A Cosco 17 December 2015, [17]). 4. 28 November 2015 - the Respondent built the fence from the front of the property to the front of the enclosed stairway wall at No 32 and aligned the posts in the post holes using survey offsets and set the posts in concrete (Affidavit A Cosco 17 December 2015, [18]). 5. 28 November 2015 - the Respondent erected a safety barrier for the alcove at No 32 (Affidavit A Cosco 17 December 2015, [19]). 6. 30 November 2015 - the Respondent removed the rock bolts, metal fence posts, and corrugated metal sheets that contained the backfill gravel from the section of fence abutting the enclosed stairway at No 32 (Affidavit A Cosco 17 December 2015, [20]). 7. 1 December 2015 - Mr Wright sent his revised plans to Mr Mongey (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 13). 8. 2 December 2015 - Mr Mongey sent an email to Mr Wright indicating his acceptance (subject to one minor addition) to the plans received on 1 December 2015 (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 13). 9. 3 December 2015 - email from Mr Hansen to the Respondent regarding Mr Mongey's approval of the proposed amended design, and works to date on the fence and wall (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 10). 10. 4 December 2015 - the Respondent put in place the Dincel panel formwork for the retaining wall to the height of the previously existing ground level (Affidavit A Cosco 17 December 2015, [21]). 11. 8 December 2015 - reinforcing steel arrived (Affidavit A Cosco 17 December 2015, [22]). 12. 8 December 2015 - site photographs taken by the Respondent, showing the fence construction (Affidavit A Cosco 17 December 2015, Annexure A). 13. 8 December 2015 - email from Mr Jepson (solicitor for the Applicants) to the Respondent seeking confirmation regarding whether the revised s 96AA plan had been lodged with Leichhardt Council ("Council"), and whether he anticipated completing the works by December 18 (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 11). 14. 9-10 December 2015 - the Respondent installed the reinforcing steel in the formwork abutting the boundary (Affidavit A Cosco 17 December 2015, [23]). 15. 10 December 2015 - letter from Mr Hansen to the Respondent repeating the request for confirmation in the 8 December email from Mr Jepson to the Respondent and requesting that the Applicants' engineer (Mr Mongey) and surveyor (Mr Brown) be allowed to inspect the construction to date (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 12). 16. 10 December 2015 - the Respondent's modified engineering plans for the retaining wall submitted to Council as modifications to s 96 application M/2015/237 (Affidavit A Cosco 12 February 2016, [3]; Affidavit A Cosco 17 December 2015, Annexure C). 17. 11 December 2015 - the Respondent retained Frank M Mason & Co, surveyors, to perform a check survey of the Dincel formwork abutting the boundary with No 32 (Affidavit A Cosco 17 December 2015, [25]). 18. 14 December 2015 - the Respondent received survey plans and cross-sections from the surveyor (Affidavit A Cosco 17 December 2015, Annexure D). 19. 14 December 2015 - Mr Mongey attended the site (Affidavit G Hansen 12 February 2016, [23]; Affidavit A Cosco 17 December 2015, [27]). 20. 16 December 2015 - the Respondent emailed a copy of the survey plans and cross-sections to the Applicants' solicitor (Affidavit A Cosco 17 December 2015, [28]). 21. 17 December 2015 - the Respondent received a survey report and amended survey plan from Mr Mason (The Respondent's surveyor) (Affidavit A Cosco 17 December 2015, Annexure E). 22. 18 December 2015 - mention before Pain J. Matter stood over to 21 December 2015 before Pain J. 1. 21 December 2015 - mention before Pain J. Directions made regarding the filing of evidence and submissions. 1. 21 December 2015 - email from Mr Jepson to Mr Bonnano of Council seeking advice on the s 96 application (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 15). 2. 21 December 2015 - email from Mr Bonnano in reply to Mr Jepson stating that no s 96 modification application was required for the retaining wall (Affidavit A Cosco 12 February 2016, Ex GH-2, tab 16). 3. 22 December 2015 - letter from Mr Hansen to the Respondent enclosing the correspondence from Mr Bonnano, discussing the timeline for completing the works, and requesting access for the arborist to the damaged cotoneaster tree (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 17; Affidavit A Cosco 12 February 2016, [4]). 4. 22-23 December 2015 - the Respondent modified the side shutters of the formwork pursuant to Council advice (Affidavit A Cosco 12 February 2016, [8]). 5. 24 December 2015 - the Respondent poured the first floor slab, completed the majority of Dincel formwork on the eastern and western boundaries (Affidavit G Hansen 12 February 2016, [28] (as informed by the Applicants); Affidavit A Cosco 12 February 2016, [9]). 6. 25-28 December 2015 - no work took place on site (Affidavit A Cosco 12 February 2016, [10]). 7. 29-30 December 2015 - the Respondent removed formwork on the boundary (Affidavit A Cosco 12 February 2016, [11]). 8. 31 December 2015-17 January 2016 - the Respondent and employees on annual leave (Affidavit A Cosco 12 February 2016, [12]) (Slightly different dates given by the Applicants). 9. 4 January 2016 - email from Mr Hansen to the Respondent requesting immediate completion of ordered works and raising the possibility of returning to court for further orders if works not completed (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 18). 10. 14 January 2016 - letter from Mr Hansen to the Respondent regarding incomplete works (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 19). 11. 18-19 January 2016 - the Respondent stripped props and formwork to the ground floor, and back propped the concrete slab and buttresses until curing of the concrete completed (Affidavit A Cosco 12 February 2016, [13]). 12. 19 January 2016 - email from Mr Hansen to the Respondent regarding the recommencement of work on site but not on the retaining wall (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 20). 13. 20 January 2016 - framework supports from the basement level to the first floor level at the rear section of the structure erected by the Respondent (Affidavit A Cosco 12 February 2016, [14]). 14. 21-22 January 2016 - the Respondent added further braces and support to the Dincel wall, built formwork for the first-floor buttress, and extended the height of the Dincel wall at front ground level (Affidavit A Cosco 12 February 2016, [15]). 15. 21 January 2016 - email from the Respondent to Mr Hansen regarding the vertical excavation near the boundary and the access for the arborist (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 21). 16. 22 January 2016 - email from Mr Hansen to the Respondent regarding arborist access and progress on the wall (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 22). 17. 25 January 2016 - the Respondent installed steel reinforcement in the first floor buttress and edge beam formwork to the buttress section (Affidavit A Cosco 12 February 2016, [16]). 18. 26 January - 4 February 2016 - various emails between Mr Hansen and the Respondent regarding a cotoneaster tree. 19. 27 January 2016 - the Respondent drilled holes in the rock face of the light well abutting the first floor buttress and inserted reinforcing bars (Affidavit A Cosco 12 February 2016, [17]). 20. 28 January 2016 - concrete poured into the Dincel wall between the ground and first floors and the first floor buttress (Affidavit A Cosco 12 February 2016, [18]) (Slightly different dates given by Applicants). 21. 29 January 2016 - email from the Respondent to Mr Hansen informing him that the boundary wall and fence will be finished by the next week (Affidavit of G Hansen 12 February 2016, Ex GH-2, tab 27). 22. 29 January 2016 - materials ordered by the Respondent (Affidavit G Hansen 12 February 2016, [19]). 23. 1 February 2016 - the Respondent installed drainage mat, laid the drain at the original rock level, and backfilled the void with gravel to the original ground level (Affidavit A Cosco 12 February 2016, [20]). 24. 2 February 2016 - the Respondent installed fence posts and rails along the boundary from the front corner of the stairway wall at No 32 to the rear of the Dincel wall with reference to the boundary offset survey (Affidavit A Cosco 12 February 2016, [21]). 25. 3 February 2016 - the Respondent installed fence palings to the rails (Affidavit A Cosco 12 February 2016, [22]). 26. 4 February 2016 - the Respondent demolished the rear fence section and erected a temporary barrier (Affidavit G Hansen 12 February 2016, [45] (as informed by the Applicants)). 27. 4 February 2016 - email sent from the Respondent to the solicitor for the Applicants in relation to the final inspection of the construction (Affidavit A Cosco 12 February 2016, Annexure B). 28. 5 February 2016 - NSW Safework inspector visited the site and some repairs to the temporary barrier were made (Affidavit G Hansen 12 February 2016, [46] (as informed by the Applicants)). 29. 6 February 2016 - bricklayers constructed the block infill wall between the basement level and ground floor and increased the height of the retaining wall abutting the boundary in the front garden section to accord with the engineer's plans (Affidavit A Cosco 12 February 2016, [24]). 30. 7 February 2016 - the Respondent erected the final rear section of the fence (Affidavit G Hansen 12 February 2016, [47] (as informed by the Applicants)). 31. 8 February 2016 - the Respondent backfilled the block infill wall section with gravel, and reattached the fence palings above that section (Affidavit A Cosco 12 February 2016, [25]). 32. 9 February 2016 - the Respondent completed the fence from the rear corner of the Applicants' wall to the rear corner of the boundary and capped the fence palings (Affidavit A Cosco 12 February 2016, [26]). 33. 10 February 2016 - the Respondent backfilled the front garden section of the retaining wall with topsoil to the original ground level (Affidavit A Cosco 12 February 2016, [27]). 34. 10 February 2016 - email from the Respondent to Mr Hansen regarding site access for the Applicants' engineer (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 31; Affidavit A Cosco 12 February 2016, Annexure C). 35. 10 February 2016 - email from Mr Hansen to the Respondent regarding the fence construction (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 32). 36. 10 February 2016 - site photographs taken by the Respondent (Affidavit A Cosco 12 February 2016, [2], Annex A). 37. 11 February 2016 - the Respondent accompanied the Applicants' engineer (Mr McMillan) on his site inspection. The Applicants' engineer informed the Respondent that he did not see any issues with the construction (Affidavit A Cosco 12 February 2016, [30]). 38. 12 February 2016 - report prepared by Mr McMillan (Affidavit G Hansen 12 February 2016, Ex GH-2, tab 33). 39. 12 February 2016 - the Respondent accompanied his engineer (Mr Wright) on his site inspection. The Respondent's engineer completed a report on the inspection (Affidavit A Cosco 12 February 2016, [31]; Annexure D). 40. 13 February 2016 - report prepared by Mr Wright following site inspection of 12 February 2016 and further to his handwritten site inspection report of 12 February 2016 (Exhibit 3). 41. 15 February 2016 - further hearing of Notice of Motion for contempt before Pain J. 42. Judgment reserved. The Respondent's solicitor informs the Court that work required by the consent orders is completed.

Applicants' submissions

The Applicants submitted that the contempt was deliberate and the Respondent should not have agreed to consent orders which required a retaining wall to be built within one month when the wall design he chose to implement took many months to complete. Before commencing building the wall the Respondent undertook further excavation which was unauthorised. Mr Wright's 8 September 2015 wall design caused big delays and resulted in the timeframe in the orders not being met. Further the s 96 modification application was unnecessary, did not relate only to the retaining wall but sought other major modifications of the consent and caused further unnecessary delay. The Respondent failed to keep in contact with the Applicants to inform them of progress in complying with the consent orders. The Respondent should have returned to court and sought a different timeframe as soon as he was aware that he could not meet the time in the consent orders.

Respondent's submissions

The contempt is not established by the Applicants. Where events beyond the control of a respondent result in non-compliance with a court order no contempt occurs per Greater Hume Shire Council v J & L Cauchi Civil Contracting [2006] NSWLEC 738 at [33]. The Respondent's actions were not wilful or deliberate. The contempt has been purged. Unfortunately engineering advice was not sought before the Respondent agreed to consent orders with such a limited timeframe of one month. A self-supporting retaining wall would have needed to be very thick, and therefore instead of that, buttressing was required to support the wall that was built. The contempt motion should be dismissed. The Respondent should not pay any costs of the application. The Applicants through their engineer Mr Mongey looked at the plans from 15 to 23 September 2015. Mr Mongey largely accepted the Wright design and accepted that the scheme met the requirements for the geotechnical conditions on site.

Civil contempt established and unintentional

The Respondent agreed consent orders requiring a retaining wall to be built within one month from the date of the orders. Engineering advice and the scheme devised for the wall after the orders were made meant that timeframe could never be complied with. This circumstance was initially relied on by the Respondent's counsel in 2015 to submit that circumstances beyond his control resulted in the timeframe not being met and therefore that contempt had not been established relying on Cauchi. Given that engineering advice could have been obtained by the Respondent before the consent orders were entered into, a matter within his control, I do not accept that submission. In any event on the final day of hearing on 15 February 2016 the Respondent's counsel accepted, appropriately, a finding of guilt on the contempt charge.
As considered in many cases, for example Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147 ("Queanbeyan") at [22]-[25], contempt can be described as technical, wilful or contumacious. Technical contempt is where the contempt is "casual, accidental or unintentional" and such contempt is civil in nature. Wilful contempt occurs when there is deliberate disobedience but without the intention of defying the court's authority. Contempt is contumacious if there is an element of deliberate defiance of a court's orders and can be criminal.
The circumstances of the contempt must be considered to identify the Respondent's state of mind. It is first necessary to clarify the Applicants' characterisation of the contempt as they essentially assert that the consent orders required the Respondent to build a retaining wall which could be built within one month. The consent orders do not state that explicitly. Order 1 requires the Respondent to build a retaining wall. The type of wall is otherwise unspecified although provision for backfill between the wall and the Applicants' property is made in order 1(f). Order 2 requires the wall to be built within one month. While this distinction may appear subtle it is important as the Applicants' case theory is that the Respondent agreed to build effectively, a simple retaining wall within one month. Such an approach did not match the practical response required of the Respondent as a result of the engineering advice received from Mr Hulskamp and Mr Wright after the consent orders were made.
I accept the submissions of the Respondent based on the evidence that the failure to comply with the consent orders of 28 August 2015 was not deliberate but unintentional. At the time the consent orders were made the Respondent's unchallenged evidence is that he thought that he could comply with the timeframe of one month to construct a retaining wall. This view was held in the absence of engineering advice.
The chronology above in par 10 shows the efforts undertaken by the Respondent from the time of the consent orders being made on 28 August 2015 until mid-February 2016 when the work the subject of the orders was completed. The Respondent acted promptly in obtaining engineering advice. On 28 August 2015 the Respondent and his father Mr John Cosco sought advice from the structural engineer Mr Wright, the geotechnical engineer Mr Hulskamp and the surveyor Mr Norton ((3)-(7)). Mr Wright completed a preliminary design by 8 September 2015, with several meetings and discussions taking place in the preceding days between Mr Wright and the Respondent and the other experts retained by the Respondent ((11)-(15)). This preliminary design was finalised and sent to Mr Mongey on 15 September 2015 ((21)), by which time half of the one month period in the order had elapsed. Mr Mongey responded to the proposed design by email to Mr Wright on 23 September 2015, and sent further review comments to Mr Wright on 28 September 2015 ((27), (29)). In cross-examination Mr Wright identified that the wall needed bracing given its length (TS 16/11/15 ln 43, 44) otherwise a wall of this height would need to be very thick. Due to the need for buttressing, the construction of the wall was apparently more involved and time-consuming than it would have been for a standard retaining wall.
The Respondent's four affidavits of 2 November 2015, 12 November 2015, 17 December 2015 and 12 February 2016 identify the steps he has taken consistently over time to give effect to the Wright design. The Applicants' solicitor Mr Hansen as informed by the Applicants referred to some events occurring on different dates to the Respondent in his affidavit sworn 12 February 2016. It is unnecessary to resolve these differences as they are minor. During the time in which the retaining wall design was finalised, the bulk excavation on the site was completed, although later than expected due to harder rock being encountered ((18)). The final excavation work and removal of rock spoil was completed on 21 September 2015, 17 days later than expected ((23)). Whilst excavation activities were ongoing workers were not permitted on site due to safety concerns ((23)).
By 28 September 2015 when the period specified in the consent orders ended, the bulk excavation work was completed and the Respondent and his employees and contractors had carried out hand excavation and prepared the footings for the retaining wall abutting the northern six metres of the boundary. The Respondent had also reinforced the temporary supports for the existing boundary fence by fixing angled prop braces to the fence ((26)). A boundary survey had been obtained by the Respondent to identify encroachments ((25)) and the final design for the wall had been prepared and sent to Mr Mongey for his approval ((21)).
The Applicants commenced these contempt proceedings on 14 October 2015. By that time the retaining wall had been constructed along the front six metre section of the boundary which involved drilling holes into the rock for the reinforcing bars, the pouring of concrete level footings and filling the retaining wall blocks with concrete ((40)). Work was underway for the pad footings in the rock in preparation for the structure, and the star bar holes for the blade walls abutting the boundary to support the retaining structure had been drilled ((50)). Certain difficulties were encountered such as the failure and necessary replacement of the drill head on 2-3 October 2015 ((36)).
The retaining wall was backfilled on 15 October 2015 ((55)) and on 20 October 2015 metal posts were set into the eastern rock face on the boundary, corrugated steel retaining sheets were attached to the posts and backfilling was completed from the footings up to the original ground level ((58)). Between 24 and 27 October 2015, the footings for the structure were formed and the reinforcing steel was put in place ((60)). The concrete for the footings was poured on 28 October 2015 ((65)). On 4 November 2015 in response to the Applicants' second Notice of Motion dated 4 November 2015 the Respondent gave an undertaking to the Court not to carry out any work on the boundary until further order. This was due to the Applicants' concern that an encroachment had resulted from the Respondent's excavations. The Respondent's undertaking was withdrawn in Court on 17 November 2015.
The Respondent's unchallenged evidence is that he made an application under s 96 because the private certifier overseeing the development said he would not sign off on the retaining wall design unless this was done with council consent. The s 96 application was prepared between 18 November 2015 and 26 November 2015, when it was lodged by the Respondent with Leichhardt Council ("Council") ((78), (82), (87)). Ultimately following the intervention of the Applicant, Mr Bonnano of Council advised that no s 96 modification for the retaining wall was necessary on 21 December 2015 ((110)).
On 18 November 2015 the Respondent set out the formwork frames for the ground floor slab and support columns ((76)). On 23 November 2015 the Respondent commenced placing the frames, props, timber beams, and formply for the retaining wall structure abutting the boundary with No 32 ((83)). This work on the formwork abutting the boundary with No 32 continued until 26 November 2015 ((84)). The Dincel wall support structure abutting the boundary was constructed on 27 November 2015 ((88)), and the fence along the front part of the side boundary was built on 28 November 2015 ((89)). Work continued along the boundary until 9-10 December 2015 when the Respondent installed the reinforcing steel in the formwork abutting the boundary ((99)). A surveyor was retained to perform a check survey of the Dincel formwork along the boundary on 11 December ((102)), with survey plans and reports received on 14 and 17 December 2015 ((103), (106)). The side shutters of the formwork were modified pursuant to council advice on 22-23 December 2015 ((112)). By 25 December 2015 the first floor slab had been poured and the majority of the Dincel formwork had been completed on the eastern and western boundaries ((113)).
The formwork was removed on the boundary on 29 and 30 December 2015 before the Respondent and his employees took annual leave between 31 December 2015 and 17 January 2016 ((116)). The annual leave taken by the Respondent and his employees and contractors was arranged in November 2015. Ensuring employees took a holiday in the usual holiday period is reasonable behaviour. On return from annual leave work recommenced on site with more or less daily works activities taking place until the completion of the retaining wall and the construction of the fence along the entire boundary in early to mid-February ((119)-(141)).
In summary, the Respondent agreed to a timeframe in consenting to the 28 August 2015 orders that was not reasonably achievable considering the size and complexity of the retaining wall construction. The Respondent took steps to comply with the consent orders before the time period elapsed however a design was not agreed by the parties' respective engineers until after that period. After the expiration of the 28 September 2015 deadline for the completion of the wall and the 9 October deadline for the completion of the fence the Respondent continued to take steps to complete the works. The Respondent did not complete the wall or fence by 18 December 2015 as noted by the Court on 26 November 2015. Regular work took place on site during this period. After taking annual leave from the end of December 2015 until mid-January 2016 the wall and fence were completed in early-to-mid February 2016. The work required by the orders has now been completed and the contempt purged.
Considering the role of the Applicants' engineer Mr Mongey, on 15 September 2015 he received from Mr Wright structural drawings for the retaining wall ((21)), and sent comments in reply to Mr Wright on 23 and 28 September ((27), (29)). On 8 October 2015 Mr Mongey sent an email to Mr Wright stating that he had no doubt that the proposed wall design "is all in accordance with all geotechnical and structural requirements" but raised the issue of complying with the consent order timeframe ((42)). On 13 October 2015 Mr Mongey sent a report to the solicitors for the Applicants outlining his communications with Mr Wright and his opinion on the proposed design ((48)). Mr Mongey emailed Mr Wright on 28 October 2015 regarding the need for a short-term retaining wall solution ((64)). Mr Wright replied to Mr Mongey on 29 October 2015 disagreeing with respect to the need for the short-term retaining wall solution and suggesting a meeting on site ((66)). On 2 November 2015 a meeting on site took place between Mr Mongey, Mr Wright and the Respondent ((68)). Mr Mongey received copies of the revised plans from Mr Wright on 1 December 2015, and Mr Mongey replied on 2 December 2015 indicating his acceptance to the plans subject to one minor addition ((92), (93)). Mr Mongey inspected the site on 14 December 2015 ((104)). On 11 February 2016 Mr McMillan, an engineer, inspected the works for the Applicants and informed the Respondent that he did not see any issues with the construction ((145)). Mr McMillan submitted a report to the Applicants on 12 February 2016 ((146)).
The Applicants submitted that Mr Mongey did not approve the design of the retaining wall as the consent orders required. The orders required that the structural plans for the retaining wall be agreed by engineers approved by the Applicants acting reasonably (order 1(b)). Further the Applicants' engineer was to inspect and approve the construction of the retaining walls (order 1(c)). Order 1(f) required backfill to the retaining wall as agreed with the Applicants' engineer. While there was disagreement between the Applicants and the Respondent in the course of the work being undertaken during October and November 2015 ultimately these orders were generally complied with as evidenced by the involvement of Mr Mongey as detailed in the previous paragraph.
Considering the particulars identified in the Statement of Charge set out in par 6, I agree with the submissions of the Respondent's counsel in relation to these. The particulars in par 5(a) were not made out on the evidence given that Mr Hulskamp provided his report concerning lateral force in relation to the retaining wall on 7 September 2015 after the consent orders were made. Par 5(b) and (d) are accepted by the Respondent. Mr Mongey agreed with the design proposed by Mr Wright (par 5(c), (e)). I also agree with the Respondent that pars (g) and (h) were not established on the evidence. Charge 6 was accepted by the Respondent.
The criticisms in charge 7 of a temporary barrier on the basis it lacked specified features of a permanent fence does not take the matter further. The Respondent accepts that he had to provide a permanent solution. Until the finalisation of the retaining wall he erected a temporary barrier for reasons of safety. That circumstance is not material to the gravity of the contempt.
The Applicants' submission that it was incumbent on the Respondent to return to Court to seek a different timetable when it became apparent that he could not meet the requirements of the consent order has no bearing on sentencing for these contempt proceedings. If he had done so his contempt may have been avoided had he obtained a different timetable for completion of the retaining wall but it does not count against him that he did not. Nor do I consider it is appropriate for me to rule on the applicants' submission that the Respondent undertook unauthorised over-excavation as that was not at all apparent on the evidence.
Alleged damage to a cotoneaster tree on the Applicants' land in the course of the work on the Respondent's land is irrelevant to the issues before me. The Applicants' views on this issue which were contested by The Respondent according to the correspondence on that issue contained in Exhibit GH-2 to the affidavit of Mr Hansen dated 12 February 2016, tabs 17-29, were not therefore identified or considered in this judgment.
Having determined that this civil contempt was unintentional it is necessary to consider sentencing for that contempt. In Owners Strata Plan 37762 v Pham (No 2) [2007] NSWLEC 306 at [20] I set out ten factors relevant to sentencing for contempt as identified in Wood v Staunton (No 5) (1996) 86 A Crim R 183 by Dunford J at 185: 1. the seriousness of the contempt proved; 2. whether the contemnor was aware of the consequences to himself of what he did; 3. the actual consequences of the contempt on the relevant trial or inquiry; 4. whether the contempt was committed in the context of 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 any apology or public expression of contrition; 8. the character and antecedents of the contemnor; 9. general and personal deterrence; and 10. denunciation of the contempt. These considerations have also been applied where relevant in Pittwater Council v Brown Brothers Waste Contractors Pty Ltd (No 2) [2009] NSWLEC 210 at [92] and Mosman Municipal Council v Kelly (No 6) [2010] NSWLEC 20 at [6] amongst other cases. In addition, sentencing considerations under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be considered where relevant.
The contempt is not wilful or contumacious and has been purged. The Respondent's evidence confirms that steps were taken to comply with the orders as soon as these were agreed on 28 August 2015 and work continued on a regular basis until February 2016 when the work was completed. The Respondent was aware of his obligations under the consent orders as he confirmed in cross-examination on 16 November 2015. The temporary fencing erected to ensure safety meant that there was no environmental or other consequence of the non-compliance with the orders in the short term. General and specific deterrence and denunciation by the Court, generally important considerations in contempt matters, are of less relevance in sentencing the Respondent in this case. I do not consider a penalty is warranted because of the particular circumstances in this case and because I find in the next section the Respondent is liable for the Applicants' costs. These costs are likely to be substantial.

Costs of contempt motion

The Applicants seek their costs of these contempt proceedings on an indemnity basis. The conduct of the proceedings should be considered in addressing that claim. The parties have appeared before the Court on numerous occasions. After the making of the consent orders by Craig J on 28 August 2015, the Notice of Motion for contempt was filed by the Applicants on 14 October 2015, with a mention before the Registrar on 21 October 2015. The Notice of Motion for contempt was part heard on 16 and 17 November 2015 and the matter was stood over to 26 November 2015. On 26 November 2015 the parties agreed that the Respondent would complete the work on the wall and fence by 18 December 2015. This timeframe was not achieved. The parties appeared on 18 December 2015 when the matter was stood over to 21 December 2015. On 21 December 2015 I made directions in the matter regarding the filing of further evidence and submissions early in 2016. The Notice of Motion for contempt was further heard on 15 February 2016 when the matter was concluded and judgment was reserved.
The Applicants submit that the instruction given by the Respondent on 8 October 2015 to Mr Wright, the Respondent's engineer, not to communicate with the Applicants' engineer Mr Mongey shows disentitling conduct. This disentitling conduct along with the wilful and deliberate contempt of court is a proper basis on which the Court should make an order for indemnity costs against the Respondent.
The Respondent submits that it is not appropriate for him to pay the costs of the contempt proceedings on any basis. By the time the Applicants' and Respondent's engineering experts had agreed on the design the Respondent was already in default and therefore the contempt was unintentional. The Applicants have not demonstrated that there was any urgency to the wall's construction. Mr Hulskamp, the Respondent's geotechnical engineer, gave his opinion in an email to the Respondent on 14 October 2015, annexed to an affidavit of the Respondent, that there was no risk to the Applicants' property in the short term meaning many months or one to two years ((51)). The application was not urgent and led to a lot of unnecessary agitation of issues. The costs should be borne by each party. There was nothing wilful or contumacious about the conduct of the Respondent. To award indemnity costs is excessive punishment.
I have wide discretion whether to award costs and on what basis in these proceedings. There is no fixed rule for how costs should be awarded in contempt proceedings and each case must be considered on its own facts. The proceedings were reasonably commenced by the Applicants given the failure to comply with the timeframe of one month to build a retaining wall and fence on top by 9 October 2015 in the 28 August 2015 consent orders. Civil contempt was established. The Applicants' costs should be paid by the Respondent.
The Applicants seek their costs on an indemnity basis relying on the decision of White J in Australian Securities and Investment Commission v Sigalla (No 4) [2011] NSWSC 62; (2011) 80 NSWLR 113 at [49] to the effect that such orders are an important sanction in civil contempt proceedings. Cases where indemnity costs were awarded such as Queanbeyan and Canterbury City Council v Mihalopoulos (No 3) [2012] NSWLEC 72 concerned wilful or contumacious rather than unintentional contempt. The Applicants submitted that there was additional disentitling conduct which justified such an order but I do not agree. When the events outlined in the chronology are considered the Respondent employed experts who engaged with the Applicants' experts from shortly after the consent orders were made until early February 2016 when the work was completed. Negotiation between the parties and their respective experts occurred while these proceedings were on foot with agreement being reached by early December 2015 on a design for the retaining wall which was acceptable to Mr Mongey. Whether there was a period of two weeks when Mr Wright did not talk to Mr Mongey in November 2015 does not change the tenor of those events overall. No basis for awarding indemnity costs to the Applicants is established.

Second Notice of Motion dated 4 November 2015 -Applicants' costs payable in part by Respondent

Evidence relied on in relation to the second Notice of Motion was as follows: 1. affidavit of G Hansen sworn 4 November 2015 and accompanying annexures (Exhibit F), part read; 2. Exhibit A - survey of Mr Brown dated 5 November 2015; 3. Exhibit B - survey dated 21 August 2013; and 4. Exhibit C - plan stamped 29 July 2015.
The chronology of events based on the affidavit material and the conduct of proceedings relevant to the second Notice of Motion follows: 1. 3 November 2015 - Mr Hansen wrote to the Respondent requesting that he undertake in writing by 10am on 4 November 2015 to cease construction of the wall until Mr Mongey had given his approval. This was because the Applicants believed that they had a reasonable apprehension that the wall that was proposed to be built by the Respondent would lead to an encroachment onto the Applicants' land. Mr Hansen stated that if the Respondent did not provide the undertaking by that time the Applicants would approach the duty judge at the Court to seek an urgent injunction (Affidavit G Hansen 4 November 2015, Annexure E). 2. 4 November 2015 - Second Notice of Motion handed up before Pain J as Duty Judge The orders sought were: 1. An order that this Notice of Motion be returnable instanter. 2. An order that the time for service of this Motion be abridged to 1pm on 4 November 2015. 3. An order that service of this Notice of Motion be effected by emailing a copy of this Motion and the affidavit of Grant Hansen sworn 4 November 2015 to the Respondent at the email address "andy@ozvestproperty.com". 4. Upon the plaintiffs, by their counsel giving to the Court the usual undertaking as to damages, an order that until further order, the Respondent be restrained from constructing any part of a retaining wall between the properties known as 32 and 34 Glassop Street, Balmain, until the engineer approved by the Applicants has consented to the location and method of construction of the retaining wall. 5. Costs. 6. Such further or other order as the Court thinks fit. 1. 4 November 2015 - the Applicants filed an affidavit of Mr Hansen in support of the Notice of Motion (Affidavit G Hansen 4 November 2015). 2. The affidavit outlines, as informed by Mr Mongey, the communication between Mr Mongey and Mr Wright regarding the plans for the retaining wall. Mr Hansen states in his affidavit at [6(h)] that Mr Mongey had not given approval to the plans for the retaining wall or its construction, as required by order 1(b) and (c) of the 28 August 2015 consent orders. Mr Hansen stated that surveys annexed to the affidavit show that the work proposed to be undertaken by the Respondent would lead to an encroachment onto the Applicants' property (at [10]). Annexed to Mr Hansen's affidavit is an email sent to him by the Respondent on 4 November 2015 in which the Respondent stated that the building works would not result in an encroachment (Annexure H). 3. 4 November 2015 - the Respondent gave an undertaking to the Court that he would not carry out work on the boundary between 32 and 34 Glassop Street Balmain until further court order; and that he would allow the Applicants' surveyor onto his land at 9:00am on 5 November 2015 for the purpose of taking photographs and measurements of the aforementioned boundary as necessary for a report. 4. 6 November 2015 - mention before Pain J 5. The undertaking given on 4 November 2015 was confirmed by the Respondent. The second Notice of Motion was stood over until 9 November 2015. 6. 9 November 2015 - part hearing of the second Notice of Motion before Pain J 7. The Applicants tendered three exhibits in relation to the second Notice of Motion, a survey report of Mr Brown dated 5 November 2015 (the Brown Survey); a detail and level survey prepared by CBD Surveying Services Pty Ltd from 21 August 2013; and a sitelines plan of the new dwelling at 34 Glassop Street dated 29 July 2015. The Brown Survey showed, as was accepted by the Respondent, that the excavations undertaken by the Respondent had resulted in a small encroachment onto the Applicants' land. 8. 16-17 November 2015 - Notice of Motion for contempt part heard 9. The Respondent's undertaking of 4 November 2015 was withdrawn on 17 November. The second Notice of Motion was adjourned without further hearing. 10. 26 November 2015 - consent orders made by Pain J 11. The consent orders addressed to some extent the subject matter of the second Notice of Motion. The orders provide (relevantly) as follows: 1. The Applicants' Notices of Motion filed 14 October 2015 and 4 November 2015 are adjourned to 18 December 2015; 2. Costs reserved. … The Court notes: 8. Upon completion of the formwork for the retaining wall and before pouring concrete to form up the wall (consequent upon approval being obtained for the amended plans), the Respondent will: (a) Obtain a surveyor's certificate confirming that the retaining wall is formed and will be constructed wholly upon the Respondent's land abutting the boundary and will provide a copy to the Applicants; (b) Notify the Applicants' structural engineer that the formwork has been completed and will facilitate inspection of the wall by the engineers for the Applicants and the Respondent. (c) The Applicants and the Respondent agree that the dividing fence to be constructed pursuant to Order 2 of the Consent Orders will incorporate the following detail: Placement of steel posts on the boundary; (i) Installation of fence rails on the Applicants' side of the fence; (ii) Installation of lapped palings on the Respondent's side of the fence. 1. 18 December 2015 - Notice of Motion for contempt part heard, no hearing in any detail on the second Notice of Motion. 2. 15 February 2015 - Notice of Motion for contempt hearing completed and judgment reserved. The second Notice of Motion dismissed save as to costs.
The Applicants submit that the Notice of Motion dated 4 November 2015 was necessary (meaning reasonably commenced) because of the written statement made by the Respondent earlier that day that he was not encroaching on the Applicants' land. A later survey demonstrated that he was. The Brown Survey of 5 November 2015 shows a 30-70mm encroachment into the rock wall along part of the side rear boundary adjoining the Applicants' property.
The Respondent submitted that the motion was unnecessary and premature. No work was contemplated to be done on the boundary at that time. An undertaking to that effect was given in Court on 4 November 2015. There was no evidence of formwork on the boundary or of encroachment. Giving the undertaking disposed of the motion economically and was not a capitulation to the Applicants.
The Court has a broad discretion to determine costs under s 98 of the Civil Procedure Act 2005 (NSW). Costs are compensatory not punitive, per Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543. The usual costs order in civil enforcement proceedings is that costs follow the event per Uniform Civil Procedure Rules 2005 (NSW) r 42.1. As there was no finalisation of the second Notice of Motion, there is no event which informs the determination of costs. Circumstances surrounding the making of consent orders can inform the Court's determination of whether to make an order for costs and in what terms. The allocation of costs in the absence of a merit determination by a court was considered in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 ("Lai Qin") by McHugh J at 624-625. His Honour stated at 625 that although both parties may have acted reasonably in the proceedings, if one party was almost certain to have succeeded had the matter been fully tried, a costs order may be appropriate.
The Applicants did reasonably file the second Notice of Motion dated 4 November 2015. The Applicants' solicitor wrote to the Respondent on 3 November 2015 raising concern about possible encroachment. The Respondent was given notice of the Applicants' intention to file the second Notice of Motion in the letter sent to him by the solicitors for the Applicants on 3 November 2015. The Respondent stated in writing early on 4 November 2015 that he was not encroaching on the Applicants' land with his excavation. The Notice of Motion was filed later in the day. Mr Brown prepared a survey on 5 November 2015 which showed some encroachment onto the Applicants' land. The Respondent accepted the survey when it was tendered in Court on 6 November 2015. The Respondent's understanding that there was an encroachment was identified in cross-examination on 16 November 2015 during the hearing of the contempt Notice of Motion, as identified in par 9.
The Notice of Motion also referred to the absence of consent of the Applicants' engineer for the work being constructed in early October 2015. This basis for the Notice of Motion was disputed by the Respondent and that part of the motion was not determined. The Court noted certain agreements of the parties on 26 November 2015 which included the involvement of the Applicants' engineer but this agreement was not given effect by orders of the Court. This agreement should not be characterised as a capitulation by the Respondent.
The proceedings were reasonably commenced and had the matter proceeded to hearing I am confident that the Applicants would have succeeded in relation to the encroachment part of its motion. The Applicants should have part of their costs paid in these circumstances. The Applicants' costs of the Notice of Motion dated 4 November 2015 of 4 and 6 November are to be paid by the Respondent.

Orders

The Court orders as follows: 1. The Respondent is to pay the Applicants' costs of the Notice of Motion for contempt dated 14 October 2015. 2. The Respondent is to pay the Applicants' costs of 4 and 6 November 2015 of the Notice of Motion dated 4 November 2015. 3. The exhibits are to be returned.

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