Kent v Aquilina (No 2)

Legislation Cited: Land and Environment Court Rules 2007 (NSW), r 6.3
Supreme Court Rules 1970 (NSW), Pt 55, rr 6, 7, 9
Woollahra Development Control Plan 2015

Cases Cited: Kent v Aquilina [2025] NSWLEC 1160
Novelly v Tamqia Proprietary Limited [2024] NSWCA 167
Re.Group Pty Ltd v Kazal (No 4) [2017] FCA 1084
Sader v Elgammal (No 5) [2025] NSWLEC 63

Category: Procedural rulings

Parties: Richard Kent (Applicant)
Nellie Aquilina (Respondent)

Representation: Counsel:
R Kent (Self-represented) (Applicant)
C Collett (Respondent)
Solicitors:
FW Ewart & Ewart Solicitors (Respondent)

File Number(s): 2024/00237145

Publication restriction: Nil

ex-tempore JUDGMENT

Introduction

1. On 18 March 2025, Acting Commissioner Douglas delivered judgment in a Class 2 Tree Dispute that concerned damage caused by a tree to a wall separating the rear yard of neighbouring properties in Woollahra (the w****all): Kent v Aquilina [2025] NSWLEC 1160 (the Judgment).

2. The Applicant in the Class 2 proceedings, Mr R Kent, claims that a Hackberry tree on his neighbour’s land was causing damage to the wall. His neighbour, Ms N Aquilina (the Respondent), is the owner of the land with the tree.

3. Well prior to the Tree Dispute proceedings being commenced, the Woollahra Council (Council) had on 28 October 2010 ordered the Respondent to repair the wall “under the guidance and supervision of a practicing structural engineer”, as the wall “appears dilapidated as to be prejudicial to occupants of the subject property”: Judgment at [15]. The Council’s order was to be complied with within 90 days, but no repairs to the wall were undertaken by the Respondent: Judgment at [16]. The Acting Commissioner found that the Respondent had provided “no valid reason for non-compliance with the Council order”: Judgment at [229]. As to the full cause of damage to the wall, the Acting Commissioner found that:

“The Hackberry tree was the most significant cause of the wall’s current condition. The respondent was responsible for the cumulative impact of wall damage caused by… the Hackberry tree, the absence of sub-surface drainage behind the wall, the disintegrated roof gutter, and the consequent significant increase in hydrostatic pressure behind the wall”: Judgment at [233].

4. The orders made by the Acting Commissioner were as follows:

“(1) The application is granted, subject to the following orders:

(2) The respondent shall engage and pay a licenced builder with appropriate insurance, to prop the existing wall to mitigate the risk of wall collapse, within 14 days of the date of these orders.

(3) The respondent shall engage and pay a registered structural engineer with appropriate insurance, to provide plans, specifications, and scope of works for a reinforced concrete block retaining wall with appropriate foundations and sub-surface drainage, of no lesser height than the existing wall, that complies with current construction standards, within 14 days of the date of these orders.

(4) The respondent shall pay for any and all required fees and requirements to promptly secure development consent from Council for demolition of the existing wall and construction of a replacement wall, as described in Order 3.

(5) The respondent shall engage and pay a licenced/registered surveyor with appropriate insurance, to determine and clearly mark the common boundary between the parties’ land, within 14 days of the date of these orders.

(6) Within 40 days of the date of these orders, the respondent shall email the applicant three itemised quotations from licensed, suitable insured builders with project management expertise, for safe demolition of the existing wall, construction of a replacement wall as described in Order 3, and removal of all debris. Within 45 days of the date of these orders, the applicant shall email the respondent a first and second choice of contractor. Within 50 days of the date of these orders, the respondent shall engage either of the applicant’s preferred contractors, prioritising the contractor with the earliest availability to undertake the works.

(7) The applicant shall undertake and pay for deck modifications required to remove all deck encroachment of the common boundary or the proposed wall. Should the applicant’s existing or proposed deck pillars constrain the respondent’s builder’s safe access, the applicant shall install suitably located temporary deck support and remove the existing deck pillars. These works shall be completed within 60 days of the date of these orders. Reinstatement of permanent deck pillars may occur after completion of the wall works.

(8) The respondent shall engage and pay a licenced plumber, builder, or roofer, with appropriate insurance, to replace the disintegrated roof gutter on the rear of the respondent’s dwelling, within 90 days of the date of these orders.

(9) Upon confirmation of development consent from Council, the respondent shall engage and pay the selected builders to demolish the existing wall, construct the replacement wall as described in Order 3, and remove all debris. The works shall be completed within 130 days of the date of these orders. Upon completion, the respondent shall gain certification of wall compliance from Council within 140 days of the date of these orders and email a copy of such certificate to the applicant, within a further 5 days. Within 5 days of receipt of the Council wall compliance certificate, the applicant shall pay the respondent $3000.00 by Electronic funds transfer (EFT).

(10) The applicant shall provide all reasonable access for contractors to undertake the works, upon receipt of at least 48 hours’ notice by email from the respondent or from their appropriately insured contractors, of the date and approximate time of commencement and anticipated duration of works, and a copy of the said contractor’s insurance certificates of currency.

(11) All works must comply with applicable Work Health and Safety legislation and regulations.

(12) All works shall occur during reasonable daytime working hours”: Judgment at [249].

Notice of Motion for Contempt

5. The Applicant claims that the Acting Commissioner’s orders have not been complied with by the Respondent. In his motion before the Court today, he seeks the following orders (inter alia):

6. That the Court declare the Respondent has failed to comply with Orders 2, 3, 4, 6, 8, and 9 made by the Acting Commissioner on 18 March 2025.

7. That the Court find the Respondent guilty of contempt for failing to comply with those orders.

8. The motion is supported by affidavits of the Applicant dated 3 October 2025 (first affidavit) and 5 December 2025 (second affidavit). In his first affidavit the Applicant has deposed to the following matters:

(a) that at the date of the first affidavit, the Respondent had not complied with orders 2, 3, 4, 6, 8, or 9 made by the Acting Commissioner; (b) that he had corresponded with the Respondent’s solicitors concerning non-compliance with the orders, including seeking to have the orders completed, and had given notice of a potential motion to be brought before the Court if the orders were not complied with; and (c) he had complied with orders 7 and 10 made by the Acting Commissioner, notably relating to access to his property for the Respondent to complete the orders she had to.

7. In his second affidavit, the Applicant deposes to the following matters:

(a) order 3 regarding the structural plans has been partially completed, although seven months after the time of the Acting Commissioner’s order for completion; and (b) no other orders have been complied with by the Respondent, although an attempt was made to comply with order 8 regarding replacement of guttering, but that “stormwater continues to discharge towards the retaining wall”.

8. In his second affidavit the Applicant also raises issues concerning the following matters:

(a) that the brick pier footings which sit directly alongside the retaining wall must be incorporated into the replacement wall design and poured concurrently, and that he has not been permitted to liaise with the Respondent’s engineer; (b) that the Respondent’s engineer’s drawing showed the wall located wholly on his property, whereas the Woollahra Development Control Plan 2015 requires retaining walls to be wholly within the land that they benefit; and (c) some issues that have been raised by his structural engineer, Mr Mark Pascoe-Loomes, concerning the structural engineering plans relating to the wall.

Evidence of the Respondent

9. The Respondent has sworn an affidavit on 8 November 2025, which was read on the motion. In that affidavit she deposes to the following matters:

(a) she is 84 years of age and in poor health, the details of which do not presently matter; (b) that she has sought the assistance of her daughter to comply with the Court orders; (c) that her daughter has received certain advice concerning possible findings of contempt; and (d) that her daughter has made certain arrangements for ongoing work to comply with the orders.

10. Also read was an affidavit of Melissa Kallas, sworn 8 December 2025. Ms Kallas is the Respondent’s daughter. In her affidavit she deposes to the following matters:

(a) she has not had time to ensure compliance with all the orders; (b) she sets out the circumstances as to why she asserts that she has not had time to ensure compliance, which relate to various matters concerning her family and business, the details of which are not necessary to go into now; (c) she acknowledges the requirement for her mother to comply with the orders that were made by the Acting Commissioner; (d) she has only recently been able to take steps to engage various contractors or tradespeople or other experts to comply with the orders; (e) she is dependent on those people in terms of when the orders can be complied with; (f) her mother is aware and acknowledges the lack of maintenance and care of her property; (g) she will continue to assist her mother in being able to engage contractors and personnel to ensure all orders are complied with; and (h) finally, that her mother is aware of advice from her legal representatives about what penalties might be imposed for contempt of the orders of Court.

Statutory Provisions and Principles

11. The Court’s power to punish a contemnor in civil proceedings is inherent in its functions as a superior Court of record.

12. Part 55 of the Supreme Court Rules 1970 (NSW) *(*SCR) applies to contempt proceedings in this Court: r 6.3, Land and Environment Court Rules 2007 (LEC Rules).

13. Part 55 of the SCR sets out the procedure to be followed in contempt proceedings, especially at Pt 55 r 6 to Pt 55 r 9. Contempt proceedings must be accompanied by a “statement of charge” (SCR Pt 55 r 7) specifying the contempt. The statement of charge in these proceedings is Annexure H to Mr Kent’s first affidavit, in which the following is alleged:

“Charge 1 – Failure to Comply with the Court’s Orders of 19 March 2025

The Respondent has failed to carry out and complete the works required by the Court’s Orders of 19 March 2025, in that:

1. Order 2 (Prop the wall): The Respondent failed to prop the retaining wall by 2 April 2025.

2. Order 3 (Engineer’s plans/specifications): The Respondent failed to provide structural engineer’s plans, specifications, or scope of works by 2 April 2025.

3. Order 4 (Development consent): The Respondent has not applied for, nor secured, the required development consent.

4. Order 6 (Builder quotations): The Respondent failed to provide three itemised builder quotations by 28 April 2025.

5. Order 8 (Rear roof gutter): The Respondent failed to replace the collapsed rear roof gutter by 17 June 2025.

6. Order 9 (Demolish and reconstruct wall): The Respondent failed to demolish the retaining wall by 27 July 2025 and has not reconstructed a replacement or obtained certification by 6 August 2025.

Further Direction Sought

To secure compliance with the Orders of 19 March 2025, the Applicant seeks a further direction:

1. directing that any design and construction of the replacement retaining wall incorporates provision for the reinstatement of the Applicant’s brick pier footings (removed in accordance with Order 7), so as to safeguard the structural integrity of both the retaining wall and the Applicant’s deck”: Applicant’s first affidavit at Annexure H.

14. While there has been judicial criticism of the distinction between civil and criminal contempt (see for example Novelly v Tamqia Proprietary Limited [2024] NSWCA 167 at [67]-[68] per Kirk JA), it is clear that:

(a) civil contempt involves disobedience of a Court order in civil proceedings; (b) civil contempt amounts to criminal contempt if the disobedience is contumacious, or the punishment serves no remedial, coercive or deterrent purpose, but a punitive purpose for punishing the breach; (c) the law makes a distinction between technical and non-technical contempt. Technical contempt is contempt that does not justify any punitive sanction, given its casual, accidental, or unintentional nature. On the other hand, contempt that is wilful in the sense that there is “deliberate conduct but without specific intent to defy judicial authority” amounts to disobedience that is more than technical, but falls short of a specific attempt to defy the Court’s authority. Contumacious contempt involves conscious and deliberate defiance of the Court’s orders and its authority; and (d) both wilful and contumacious contempt involve intentional non‑compliance with a Court order. However contumacious contempt is more grave, because it renders what would otherwise be civil contempt as criminal contempt.

See generally: Sader v Elgammal (No 5) [2025] NSWLEC 63 at [55]-[59] per Pepper J.

15. The moving party who seeks a contempt order bears the onus of establishing the contempt charged beyond reasonable doubt. The elements of contempt have been identified by Perram J in Re*.Group Pty Ltd* v Kazal (No 4) [2017] FCA 1084 at [73]-[74] and are these:

“3. In a case of civil contempt, the plaintiff must prove that:

i) An order was made by a Court;

ii) The order was sufficiently clear such that one can be sure beyond reasonable doubt that the order was not complied with;

iii) The order was served on the alleged contemner or that service was for some reason dispensed with under some lawful order;

iv) The alleged contemnor had knowledge of the terms of the order;

v) The alleged contemnor breached the order; and

vi) The alleged contemnor took a deliberate step which, even if not intended to, breached the order. What is necessary is not that the alleged contemnor intended to breach the order, but rather the order was breached and that the action constituting the breach was intended. Hence, casual, accidental or unintentional acts which breach an order are excluded”.

The Respondent has not complied with the orders of the Acting Commissioner

16. At the hearing of the motion before me today, the Applicant represented himself. The Respondent was represented by Ms C Collett of Counsel, who provided the Court with helpful written submissions (RWS). In those submissions, Ms Collett, on behalf of the Respondent, contends for the following matters, as well as making certain concessions:

(a) the Respondent submits that she has now complied with orders 3 and 8 made by the Acting Commissioner, and has taken steps towards compliance with the remaining orders; however (b) the Respondent admits she has not complied with “some of the orders within the required timeframe and has not complied with other orders as yet”: RWS at [6a]-[6b].

17. Attached to the RWS as Annexure A is a schedule titled “Status of works required under Orders”. In that schedule, I am told the following about the orders made by the Acting Commissioner (including clarification in oral submissions before me today):

(a) as to order 2, this has not been complied with; (b) as to order 3, this was not complied with within time, and there is an issue between the parties as to whether it has been properly complied with; (c) order 4 has not been complied with; (d) order 6 has not been complied with; (e) order 8 was not complied with within time, and there is an issue between the parties as to whether it has been properly completed; and (f) because a development consent has not been obtained in accordance with order 4, other orders, particularly orders 9, 10, 11 and 12, have not yet been complied with.

18. Also in the RWS it is admitted that a number of the elements needed to prove contempt have been. In particular, it is admitted that the orders of the Acting Commissioner were made; the orders were sufficiently clear; the orders were served on the Respondent; and the Respondent has knowledge of the terms of the orders.

19. What the RWS suggest must further be proved is that the Respondent has breached the orders, and that she took deliberate steps to breach them: see generally RWS at [18]-[20].

The Respondent has committed contempt

20. I am satisfied beyond reasonable doubt that the Respondent has committed contempt of at least orders 2, 3 (not complied with within time), 4 and 6 of the orders made by the Acting Commissioner on 18 March 2025. By admission, these orders have not been complied with (or not complied with within time), and no proper or necessary steps have been taken by the Respondent that were available to her to comply with them, despite the Respondent being fully aware of the orders and knowing that she must comply with them. I am satisfied beyond reasonable doubt that the orders referred to were not complied with, and that the Respondent intended to breach them in that no steps were taken to comply with the orders when they could have been, and should have been.

21. I do not yet propose to rule on whether the Respondent is in contempt of any of the other orders made by the Acting Commissioner, or whether orders 3 or 8 have been properly complied with, nor do I propose to deal with sentencing today. Rather, I propose to stand any further hearing of whether the Respondent is guilty of any additional contempt of the orders made by the Acting Commissioner over to a date in the new term.

22. I also propose to deal with sentencing at that later date. That would give the Respondent a further opportunity to ensure that what was required to be done through the orders of the Acting Commissioner is done, and to purge any further contempt. Satisfaction of the orders of the Acting Commissioner by the time the matter is back before the Court will be of great significance to any penalty imposed on the Respondent for her contempt. This includes the Respondent considering the matters raised by the Applicant in his 5 December 2025 affidavit as to whether orders 3 and 8 have now been fully and properly complied with. I urge the parties to co-operate on these matters.

23. If the orders are not all complied with, on the next occasion the matter is before me, I will consider an order for substituted performance as well as of course dealing with any further findings of contempt, and with sentencing.

24. I make the following orders:

25. The Respondent Ms Nellie Aquilina is guilty of contempt for failing to comply with orders 2, 3, 4, and 6 of the orders made by Acting Commissioner Douglas in Kent v Aquilina [2025] NSWLEC 1160.

26. Consideration of whether the Respondent is guilty of contempt of the other orders made by Acting Commissioner Douglas, and the sentencing of the Respondent, is stood over to Thursday 5 March 2026 at 10am before me.

27. Costs of the motion are reserved.

28. Consideration as to whether orders 3 and 8 have been complied with by the Respondent as at the date of the hearing, and the issue of any further costs expended by the Applicant as a result of the Respondent’s non-compliance with the Acting Commissioner’s orders, is also stood over to 5 March 2026 before me.

29. Liberty to restore on 48 hours’ notice.

**********