Ku-Ring- Gai Council v Labordus

APPLICANT: Mr G McKee, Solicitor SOLICITORS McKees Legal Solutions LEGAL REPRESENTATIVES: RESPONDENT: Mr M Wright SOLICITORS Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: These are proceedings for contempt of Court arising from the failure of the defendant Giltje Sittske Labordus, to comply with consent orders 3, 7 and 8 made on 18 December 2007. Essentially, the consent orders required the defendant to demolish and remove a failed retaining wall on the boundary between her property at 32 Lynbara Avenue, Pymble and a neighbouring property at 30 Lynbara Avenue, and to replace it with a new wall and associated drainage. Orders 3, 7 and 8 were as follows: "3. The Respondent shall, by her servants, agents or contractors commence the carrying out of works in accordance with Annexure `AA' within 3 months of the date of these orders, and shall complete these works within 6 months of the date of these orders.

7. The Respondent shall cause her contractor or contractors to provide a copy of their public liability/builders insurance to the owner of No 32 Lynbara Avenue prior to commencement of any works in accordance with Annexure `AA'.

8. The respondent shall cause the owner of No 32 Lynbara Avenue to be provided with access requirements of any contractors who need access to No 32 Lynbara Avenue to carry out the works in accordance with Annexure `AA' not less than 48 hours before such access is required." 2 These contempt proceedings were commenced on 7 November 2008. Their purpose is essentially coercive rather than punitive. That is, the council seeks through the contempt proceedings to have the consent orders complied with. At the hearing before me the defendant changed her plea from not guilty to guilty. She is now before the Court for sentencing. 3 The proceedings have a long history which is recounted in an earlier costs judgment of Pain J: Ku-Ring-Gai Council v Labordus [2007] NSWLEC 834.

4 Some of the work required by order 3 was carried out very recently and the balance is due to commence later this week and to be completed shortly thereafter. The defendant is therefore in breach of order 3. The failure to comply with orders 7 and 8 is purely consequential on the failure to comply with the timeframe required by order 3. There is no suggestion that she has not complied with orders 7 and 8 outside that time frame.

5 As the defendant accepted in cross-examination, she has known for many years that the wall was in need of replacement. That was dealt with by the consent orders. When the consent orders were made she was advised by lawyers and the plan attached to the consent orders was drawn by her engineering consultant, Mr John Davies.

6 The work required by the orders would cost approximately $10,000 and could be completed in two weeks, weather permitting. Therefore, prima facie, it is puzzling why the work was not completed within the time frame required by the orders and in any event, long ago.

7 The prosecutor submits that the defendant and a family friend, Mr Peter Willmott, who has tried to assist her to get the work done and upon whom she is heavily reliant in that regard, did not make a serious effort to get the work done within the time frame required by the consent orders. The prosecutor criticises them for not telling any of the contractors that were engaged that the work was required to be done by a Court order and for not entering into firmer and more complete arrangements with contractors.

8 The defendant is elderly and at all material times has been in poor health and in poor financial circumstances. Her explanation for the delay in having the work carried out within the time frame required by the consent orders is a combination of circumstances: the need to take necessary preliminary steps before engaging a contractor; a series of contractors not honouring their contractual obligations to do the work; wet weather; poor financial circumstances and ill health.

9 In February 2008 the defendant arranged for surveyors to review the survey plan they had prepared in 2003 and provide additional information; and for Mr Willmott to obtain information from Energy Australia to ascertain the depth of cables. In March 2008 she arranged for soil to be delivered and spread on her property in relation to the works. In April 2008 she arranged for Mr Willmott to cut the existing wall to assist in this demolition. Around that time she arranged for the work plans to be amended by Mr Willmott to assist the contractor.

10 Because her financial position was bad, she did not want to engage a contractor until she could afford to buy the materials and pay for the works to be done. She had to save and pay council's legal fees of $7,000 and a bond of $1,000 (as also required by the consent order) before commencing the work. She paid the amount of that bond in late May 2008 and paid money towards the council's legal costs in mid June 2008. At the beginning of June 2008 the defendant sent letters to neighbours giving written notice of pending works.

11 In May 2008 she asked Mr Willmott to engage a contractor on her behalf to get the work done. He arranged for a Mr Robinson to commence the works on 2 June 2008 as he had four clear days then to complete the job. It appears that he was only engaged to do the first part of the work and that no-one had been engaged at that time to complete the process.

12 According to Mr Willmott, works could not commence during June or July due to rain. That evidence was not directly challenged although there are meteorological reports in evidence which the prosecutor submits would indicate, in conjunction with evidence from Mr Davies, that there were rainy periods during those two months when work could be carried out. I think that work could have been carried out on some dates during those months although there would have been difficulty in them coinciding with the availability of the contractor.

13 In early August 2008 Mr Robinson advised that he did not want to do the work because the neighbour had abused him. Shortly thereafter the defendant instructed Mr Willmott to look for another contractor. In about mid August she purchased the second load of materials consisting of pipes, grid drain pits and fittings and they were delivered to the site by Mr Willmott from August. Around this time Mr Willmott rolled the chain wired fence back to a position past where the first hole had to be dug.

14 On 20 August 2008 she received a quotation from another contractor, Mr Delben, and the following day signed and returned the quotation.

15 In the meantime there had been correspondence between the council's solicitors and the defendant's solicitors concerning payment of the bond and progress of the works. In that correspondence the council's solicitors threatened contempt proceedings if the bond was not paid and if the work was not completed within a certain further time frame in the order of a month from commencement. The defendant's solicitors advised there had been delays due to bad weather and heavy rain that it was intended to commence work and of steps that had been taken in that regard. On 7 August 2008 the defendant's solicitors advised the council's solicitors of the difficulties that had arisen with the contractor that had been engaged earlier and the engagement of Mr Delben and indicated that they expected to be able to provide the council with Mr Delben's schedule of works within seven days. The defendant's solicitor's letter of 14 August 2008 to the council's solicitors stated that Mr Delben was scheduled to carry out his major excavation works from about 22 August and that they were awaiting a response from him as to the likely completion date of the work, weather permitting. On 12 September 2008 the defendant's solicitors wrote to council advising of delivery of building material, the removal of the chain wire part of the side boundary fence, the pegging out of the site for the excavators, and the engagement of a contractor who had advised that it would take approximately four weeks to complete the excavation works. They said that the contractor, Mr Delben, had been requested to provide a formal schedule of works on numerous occasions but it had not yet been received. 16 At the end of September 2008 Mr Delben indicated that he could start work on 8 October with a time frame of about four to six weeks subject to weather. However, that start date was delayed due to rain.

17 During October 2008, Mr Willmott, upon whom the defendant was heavily reliant, was unable to assist the defendant because of a serious family matter. The defendant had serious health issues and had become more frail over the preceding 12 months, which affected her ability to get the work done.

18 At the beginning of November 2008 Mr Willmott cleared the area on the boundary and placed an orange line between the boundary survey pegs and also placed pegs in the ground for the position of the holes to be dug.

19 On 8 November 2008 the defendant informed Mr Barrow, her next door neighbour at 32 Lynbara Avenue, that she had arranged for contractors to commence work on 10 November and that they would bring their insurance along and give it to Mr Barrow when they arrived. Mr Barrow pointed out that another of the consent orders made in December 2007 required a survey to be completed of the boundary and queried whether that had been carried out. The defendant could not recall discussing a survey plan during this conversation with Mr Barrow on 8 November but I prefer his recollection.

20 Later that day Mr Willmott and Mr Barrow had a conversation in which Mr Willmott said surveys had been done since the matter started and Mr Barrow said he had not seen any of them and was concerned with the correct location of the boundary and that he would like a qualified surveyor to carry out a survey of the boundary line or a surveyor to install pegs there to certify that it was the boundary.

21 Later on 8 November 2008 the defendant and Mr Willmott visited Mr and Mrs Barrow. The defendant perceived him to be rather aggressive as he swore. I accept his explanation that he was frustrated by the long delay in this matter and that he apologised for swearing which he said was uncharacteristic of him.

22 On 10 November the defendant spoke with the surveyor and requested a survey plan. That was furnished and was provided to Mr Barrow on 11 November. At a meeting on 13 November 2008 between the defendant Mr Willmott, Mr Barrow and others, Mr Barrow indicated that he was satisfied that his concerns as to the location of the fence on the boundary had been addressed and was happy for the works to proceed. Mr Willmott said that as the contractor was not able to commence last week without permission to enter Mr Barrow's property, he had started another job and was likely to be unavailable for the next 8 to 10 days.

23 Mr Willmott expected Mr Delben to commence work on 2 December 2008. He did not show up. Mr Willmott attempted to contact him over the next week, making in excess of 20 phone calls unsuccessfully. Mr Willmott provided Mr Barrow with insurance documentation for the contractor in about mid December 2008. Mr Delben was then intending to commence works on 12 January 2009 and confirmed that he would do so by fax dated 16 December 2008. In the result Mr Delben was unable to do the works due to personal health issues of his wife in January.

24 On 23 January 2009 the defendant instructed Mr Davies, her consultant engineer, to find another contractor to do the work. The defendant also spent some time attempting to find a suitable contractor.

25 Finally, on 9 February 2009 a new contractor was engaged and commenced work on the wall, including starting digging of the holes. It then rained for more than two weeks during which time the holes were covered up. Thereafter it took a few days for the excess water to drain away and for the ground to harden up.

26 On 8 March 2009 levels were set for the concreter to pour the concrete. However it rained later that day and was too wet on the Monday for the concreter to attend and pour the concrete. The work was due to resume in a few days time.

27 The defendant owes some $45,000, mostly legal bills and some other household bills. She has been unable to pay her legal bills for over 12 months. She has been putting all the money she can into paying for the works to be done in accordance with the Court's orders and the council's legal fees as ordered by the Court. She had completed the last payment of part of those outstanding fees in January/February 2008. She is a pensioner with a weekly income of about $402 but sometimes as low as $320 because part of her pension is a Dutch pension. She has a current balance of about $1,300.

28 In Burwood Council v Ruan [2008] NSWLEC 167 I reviewed the sentencing factors for contempt and said at [18]: "In Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 Dunford J set out ten factors to be considered in determining the appropriate punishment for contempt:

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;

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;

10. denunciation of the contempt." 29 The contempt in the present case was disobedience of Court orders. In my opinion it is at the low end of the seriousness range. The defendant did not intend to breach the orders of the Court. Given that they were consent orders and that the time frame for which they allowed was relatively generous, I think that she could have done more in the first six months to ensure that the work was done within the time frame. However, I accept as substantial mitigating factors that her financial condition and health were poor, that she was endeavouring to give priority to the payment of a bond and legal fees which she was also required by the Court order to pay; that she was let down by a number of contractors whom she engaged to do the work; and that there were substantial delays due to the weather.

30 There is no suggestion that the defendant has any prior criminal record nor that she is other than a person of good character. The need for general and personal deterrence are low. 31 In the circumstances, I consider that it is a sufficient penalty to order her to pay the council's costs of the contempt proceedings on an indemnity basis, as agreed or assessed. I propose to stay that order for three months because the priority now must be for the work to be completed and paid for.

32 The orders of the Court are as follows: 1. The defendant is guilty of the offence charged.

2. The defendant is to pay the prosecutor's costs on an indemnity basis, as agreed or assessed.

21/04/2009 - Date of judgment omitted on cover page - Paragraph(s) Cover page 21/04/2009 - typographical errors - Paragraph(s) 13, 20

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