Sader v Elgammal (No 5)

Date of orders: 18 June 2025

Decision date: 18 June 2025

Jurisdiction: Class 4

Before: Pepper J

Decision: See orders at [194].

Catchwords: CONTEMPT: civil enforcement proceedings – elements of contempt – whether orders permitted the retention of some or all of a horizontal concrete slab and retaining wall – proper construction of the final orders – legal principles to be applied in construing court orders – whether topsoil constituted “building and construction materials” – whether demolition waste constituted “building and construction materials” – whether orders sufficiently clear – whether orders breached – whether breach of orders more than accidental, casual and unintentional – liability for contempt established.

Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.16, 6.23, 6.26
Evidence Act 1995, s 136
Land and Environment Court Rules 2007, r 6.3
Supreme Court Rules 1970, rr 55.6, 55.7, 55.8
Uniform Civil Procedure Rules 2005, rr 40.6, 40.7

Cases Cited: Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
Australasian Meat Industry Employees’ Union v Mudginberri Station Proprietary Limited [1986] HCA 46; (1986) 161 CLR 98
Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483
AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; (2010) 78 NSWLR 302
Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80
Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653
Brown Brothers Waste Contractors Pty Ltd v Pittwater Council [2015] NSWCA 215; (2015) 90 NSWLR 717
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375
Environment Protection Authority v Pannowitz (No 2) [2006] NSWLEC 797; (2006) 153 LGERA 126
Fairfield City Council v Camilleri [2024] NSWLEC 56
GEMI 169 Pty Ltd v Suria Global (L) Pty Ltd (No 5) [2024] NSWSC 951
Georges River Council v Hamade [2023] NSWLEC 71
Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
Katter v Melhem [2015] NSWCA 213; (2015) 90 NSWLR 164
Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567
Lade &Co Pty Ltd v Black [2006] QCA 294; [2006] 2 Qd R 531
LCM Litigation Fund Pty Ltd v Coope [2017] NSWCA 200
Microsoft Corporation v Marks [1996] FCA 709; (1996) 139 ALR 99
Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91
North Sydney Council v Moline (No 2) [2008] NSWLEC 169
Novelly v Tamqia Pty Ltd [2024] NSWCA 167
Parramatta City Council v Roy DR Services Pty Ltd [2005] NSWLEC 756
Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256
Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Rafailidis v Camden Council [2015] NSWCA 185
Randwick City Council v Arxidia Pty Ltd [2021] NSWLEC 105
Re.Group Pty Ltd v Kazal (No 4) [2017] FCA 1084
Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34
Sader v Elgammal [2022] NSWLEC 107
Sandrin v W & M Riggs Mechanical Repairs [2006] NSWCA 194
Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170; (2014) 86 NSWLR 674
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525

Texts Cited: P Herzfeld and T Prince, Interpretation (3rd ed, Lawbook Co., 2024)

Category: Principal judgment

Parties: Mark Sader (First Applicant)
Sandra Sader (Second Applicant)
Yasser Elgammal (First Respondent)
Abdul Hammoud (Second Respondent)
State of New South Wales (Third Respondent)

Representation: Counsel:
D Hughes with J Farrell (First and Second Applicants)
I Hemmings SC with J Reid (First Respondent)
Submitting appearance (Second Respondent)
Submitting appearance (Third Respondent)
Solicitors:
Davidson. Legal, Consulting, Advisory (First and Second Applicants)
One Group Legal Pty Ltd (First Respondent)
N/A (Second Respondent)
Litigation Team, Department of Planning and Environment (Third Respondent)

File Number(s): 2022/36734

Publication restriction: Nil

JUDGMENT

A Dispute Between Neighbours Arises

1. As the devout and prolific author G K Chesterton once quipped, “The Bible tells us to love our neighbours, and also to love our enemies; probably because generally they are the same people.” This would certainly appear to be the case with the applicants, Dr Mark Sader and Sandra Sader (together, “the Saders”), and the first respondent, Yasser Elgammal, in this matter. To date the dispute between neighbours has spawned at least 10 published judgments in this Court and in the Court of Appeal.

2. The Saders are the registered proprietors of Lot 12 in DP 14844 located at 24 Bowden Crescent, Connells Point.

3. Elgammal is the registered proprietor of Lot 13 in DP 14844 located at 26 Bowden Crescent, Connells Point, the adjacent property (“the site”).

4. The third respondent, the State of New South Wales (“the State”), is the owner of land to the immediate south-east of the site fronting the waters of Connells Bay, upon which a boathouse structure, jetty, pontoon and swimming pool are located. All land below the mean high water mark (“MHWM”) of the Georges River (which fronted both properties) is vested in the State.

5. On 7 October 2021 development consent DA 2020/0430 was granted by Georges River Council (“the Council”) for “demolition works and construction of a dwelling house” on the site (“2021 consent”).

6. The second respondent, Abdul Hammoud, was the principal certifying authority in respect of development at the site. He also issued a construction certificate for the works the subject of the development on 17 November 2021 (“CC”).

7. Neither Hammoud nor the State actively participated in the proceedings. Both filed submitting appearances.

Saders Challenge the Validity of the CC in the Court

8. By way of a Further Amended Summons filed pursuant to leave granted on 8 April 2022, the Saders sought orders and declarations in relation to the works on the site.

9. The relief broadly related to these central claims (Sader v Elgammal [2022] NSWLEC 107 at [8]):

8 The orders and declarations sought broadly related to the following key claims purported to be contrary to Development Consent DA 2020/0430 granted on 7 October 2021 by the Georges River Council (the DC) and the Construction Certificate 26BOW/2021 dated 17 November 2021 issued by the Second Respondent of Certicorp Pty Limited headed “Construction Certificate Notice of Determination” together with the documents referred to in that document (the CC):

(1) Works commenced prior to the issue of the CC (Early Commencement);

(2) Over-excavation of the natural rock face and removal of retaining wall and staircase on the Site (Over-excavation);

(3) Failure to ensure integrity of existing brick boundary fences (Structural Integrity);

(4) A failure to execute excavations associated with the erection of a building safely (Failure to Excavate Safely);

(5) Clearing of the Site without appropriate erosion and sediment control (Erosion and Sediment Control);

(6) Failure to ensure BASIX commitments set out in certificate no. 1148435S implemented (BASIX Component);

(7) Construction between the mean high water mark (MHWM) and the approved dwelling house of a concrete slab at RL 5.3 with low concrete wall on the north-east corner the Site adjacent to 28 Bowden Crescent (the Northern Slab);

(8) Construction between the MHWM and the approved dwelling house of a concrete slab at RL 5.80 on the south-west corner of the Site adjacent to 24 Bowden Crescent (the Southern Slab); and

(9) Invalidity of the CC insofar as it contains landscape plans prepared by Dapple Designs Revision D dated 21 October 2021 (the CC Landscape Plans).

10. On the final day of the hearing before Duggan J, a Final Amended Summons was filed in Court removing six of the nine claims identified in the quote above. The issues for determination by her Honour were therefore narrowed to (adopting the abbreviations used by her Honour for the sake of convenience) the claims relating to the Northern Slab, the Southern Slab and the CC Landscape plans.

11. The basal facts before Duggan J were as follows (at [12] and [15]):

12 Prior to the grant of the DC and the undertaking of work the Site had a wall located toward the interface between the First and Third Respondent’s land. The said wall was constructed in part over an existing natural rock face and comprised an area of render, as well as an area of stone with a glass balustrade above. The said wall extended perpendicular and between the two side boundaries and was at the point where the land had a change in level between the upper area on the First Respondent’s land and the lower area on the Third Respondent’s land. The said wall is depicted in the photograph below and will be referred to as The Wall:

Figure 1: Exhibit F, page 2 (folio 1331): View of 26 Bowden Crescent, prior to commencement of recent works, from an elevated drone position above the waterway showing swimming pool, jetty and boatshed in the foreground. No. 24 Bowden Crescent is to the left of the picture (Source realestate.com, 2013)

…

15 The First Respondent has commenced work on the Site, including the following works:

(1) Demolition of the Wall such that no portion of the Wall remains on the Site;

(2) Excavation of the natural rock face which existed below the Wall on its south/eastern end and the rock face behind the boatshed between the two staircases depicted in Figure 1;

(3) The demolition of the two staircases between the upper terrace area and the pool deck/boatshed and the construction of a new staircase;

(4) The construction of the Northern Slab; and

(5) The construction of the Southern Slab.

(Collectively referred to as the Disputed Works).

12. The proceedings before her Honour were concerned with whether Elgammal was lawfully entitled to carry out the Disputed Works and if he was not, to the extent that the CC purported to authorise the carrying out of all or part of those Disputed Works, whether it was invalid by reason of its inconsistency with the 2021 consent.

Decision of Duggan J

13. On 25 August 2022 Duggan J held that the CC was invalid because it was inconsistent with the 2021 consent. Relevantly, her Honour found that neither the excavation of natural rock nor the construction of the concrete slabs depicted in the CC Landscape Plans were authorised (at [76]):

76 For all of the above reasons, I find that the DC did not authorise the removal of the Wall or the natural rock. This finding is primarily based upon a consideration of the approved plans independent of any condition of consent. To the extent that the conditions operated to “amend” the plans I find that none of the conditions amended the approved plans to authorise the removal of the Wall or the natural rock. I further find that condition 14 operated not to amend the approved plans but rather to reinforce by words that the Wall was to be retained, as depicted in the approved plans, and to require it to be protected from impacts as a consequence of the carrying out of the approved works provided for in the DC.

14. The findings made by her Honour in arriving at this conclusion were set out in the judgment (at [93]-[94]):

93 As to the Northern Slab the First Respondent’s focus upon the exact location of the MHWM is not compelling. The evidence discloses that the location of the Northern Slab is either wholly within the R2 zone or partially within the R2 and W2 zones. In either zone development consent was required for the earthworks undertaken to facilitate the construction of the Northern Slab and such consent was not obtained. Further, the uncontested evidence of Mr Layman was that works of the nature of the Northern Slab were not exempt development or otherwise capable of being carried out without development consent. As a consequence, I am satisfied on the balance of probabilities that development consent was required for the works that were undertaken to effect the construction of the Northern Slab and that such development consent was not obtained.

94 As to the Southern Slab, the slab due to its manner of construction is a building within the meaning ascribed to that term in the EP&A Act in that it is a structure by virtue of it cantilevering over the rock face and the manner in which that cantilever is effected by the attachment to the underlying rock. In addition, the carrying out of the construction required the undertaking of earthworks which works were not the subject of development consent (as identified above). For each of these reasons, the Southern Slab was development that required development consent for which consent had not been obtained.

15. Consequent upon the conclusion that the Disputed Works were unauthorised, Duggan J considered the appropriate relief to be granted to the Saders in the exercise of her discretion. This necessitated an examination of the structural integrity of the unlawful Northern and Southern Slabs. The Court found that (at [100]):

100 The structural engineers were unable to provide any assurance as to the structural adequacy of the Northern Slab as they had insufficient details of the manner of its construction. As to the Southern Slab, whilst Dr Amin was of the opinion that the slab was structurally sound his opinion was based upon assumptions, including in particular, where the rock interfaced with the slab and how the epoxy fixing was effected. If his assumptions were incorrect he would have to run his model again to test structural stability. From the evidence available I am satisfied that the assumptions made by Dr Amin are not accurate as they relate to the intersection of the slab with rock – as photographs show a distinct gap between the bottom of the slab and the upper level of the underlying rock at the leading edge of the rock and the photographs also show some inconsistencies in the epoxy dowels as indicated on the plans and those in fact in existence in the slab.

16. Her Honour held that it was appropriate that the Northern and Southern Slabs be demolished (at [110]).

17. On 30 September 2022 her Honour made orders for, among other things, the demolition of the Slabs. This was because (at [111]-[114]):

111 The Northern Slab should be demolished as there is no evidence as to the manner in which it was constructed and there is not sufficient (if any) evidence before me to satisfy me that it is structurally sound. As it was intended that the Northern Slab be capable of bearing the weight of landscaping, including planting, together with access by the occupants of the dwelling, the lack of evidence that the Northern Slab is structurally sound is of itself reason to warrant its demolition.

112 I further take into account the real risk that the Northern Slab has been constructed over the boundary to the Third Respondent’s land. Whilst the First Respondent submitted that the location of the MHWM is upon further survey in a location other than that shown on the approved survey, I take into account that in the assessment of the DC and on the representations made by the First Respondent on the material submitted for that assessment the MHWM was identified in a location that would have the Northern Slab located at least, in part, over the Third Respondent’s land. Such a factor and the uncertainty as to the lot boundary is another reason why the Northern Slab should be demolished, particularly in circumstances where there is no evidence that to the extent that the Northern Slab may encroach, the Third Respondent has consented to its retention.

113 As to the Southern Slab there is evidence as to the assumed manner of construction. However, this is an after the fact assumption, as the Southern Slab was constructed without conformity to any engineering design or engineering supervision. Further, there was no direct evidence as to the manner of the construction. There is some dispute between the structural engineers as to the extent to which the Southern Slab is presently structurally sound or could be rendered structurally sound. The uncertainty surrounding the structural soundness of such a large slab that cantilevers over an area proposed for occupation by the residents of the dwelling for recreational uses is sufficient to warrant the demolition.

114 A further consideration which would of itself warrant the demolition of the Southern Slab is the extent to which it has the potential to impact on the amenity of the area, particularly when viewed by the public from the water and other public spaces. This was a matter for consideration by the Council in its assessment of the DC. The overhanging feature obscures the views of the natural rock and is a feature that is not otherwise present in other waterfront properties. The impression of the undercroft of the overhang when viewed from the water is also unknown and unexpected. These factors were not able to be considered and assessed by the Council so I am unable to determine whether such factors would have been considered to be acceptable in a planning context. However, considering the evidence of the immediate waterfront I consider that such impacts weigh in favour of the removal of the Southern Slab.

18. In making the orders, the Court opined that “there is a strong public interest in the upholding of the planning regime particularly in the construction of a structural cantilevered slab” (at [116]).

19. The demolition of the Northern and Southern Slabs meant that Elgammal had to render the upper terrace safe, “by the provision of fencing and some levelling of the area and the like” (at [118]). As to the timing of the demolition, Duggan J held that “the Northern and Southern Slabs should be demolished within six months of the date of the final orders or prior to the issue of an occupation certificate, whichever is the earlier date” (at [120]).

20. Accordingly, her Honour proposed the following relief (at [121]):

121 For those reasons, I propose to make a declaration that the CC is invalid to the extent that it incorporates the CC Landscape Plans and defer the making of final consequential orders to give the parties an opportunity to either agree the terms of those orders or address me on the final form of orders. The orders should make provision for:

(1) Restraining the First Respondent from acting upon the CC Landscape Plans;

(2) The demolition of the Northern Slab and the Southern Slab within six months of the date of the final orders or prior to the issue of an occupation certificate whichever is the earlier date conditional upon there being no building or construction materials or plant or machinery placed upon either slab while they remain on the Site;

(3) The approval of a detailed landscape plan consistent with the DC and reflecting the existing landform with the Wall and natural rock having been demolished and the completion of such landscaping works prior to the issue of an occupation certificate; and

(4) The identification of any works, if any, necessary to render the existing excavated rock face and the land behind it safe together with any necessary fencing and any necessary process or approval that is required to give effect to such changes where such approval would be required in addition to any order made by this Court.

21. The parties were therefore directed to confer as to the form of the final orders and to prepare agreed short minutes of order, and if no agreement was reached, competing short minutes of order. The matter was listed for further directions on 29 September 2022.

22. Short minutes of order could not be agreed. When the matter next came before Duggan J, a dispute arose as to the demolition of the “low concrete wall”. The following exchange between the bench and the parties occurred (T4:14-47):

HER HONOUR: It’s in the summons. I just don’t understand it. Yesterday when I got the short minutes was the first time this wall had been brought to my attention in any particular way. Why do you want to keep the low concrete wall if the slab is going?

REID: The way the slab has been constructed – and I guess if you were to make any meaning in the context of the evidence of the low concrete wall in para 5(a)(i) – is that the slab has been poured with the cantilever low concrete wall to the north, and as it presents to the east, to the water side, there is a separate wall which will form part of the balustrade to the drop over the rock ledge. The reason why the first respondent says that that ought to be kept is, firstly, that ultimately there is going to need to be a wall in that location with a glass balustrade on top, and secondly, there is no evidence and nothing in the points of claim that I could find that the wall was ever in issue between the parties. That was the basis upon which the applicants ran the case and to which it was responded to.

HER HONOUR: I don’t have any evidence about that wall.

STEELE: Your Honour, there is some evidence about the wall. I’d like to go through the evidence and just to set forward what the applicant has said, because much of what Ms Reid said was in evidence, and there is evidence from –

HER HONOUR: What I am inclined to do – because there’s going to need to be a wall along the top of this rock at the fall anyway. I’m not going to require somebody to knock something down just to have it rebuilt just for the hell of it. This is something that if a building information certificate can be obtained in relation to the wall, then it can be retained. If a building information certificate can’t be obtained in relation to the wall, then it will have to be demolished. That can be part of the process in relation to the landscape plans.

REID: The first respondent would accept that course.

23. Counsel for the Saders was initially reluctant to agree to this approach (T5:00-43):

STEELE: Your Honour, I’m just waiting for instructions. The difficulty is, with that wall – and I am waiting for instructions – that it was part of our case; there’s no evidence that it is structurally sound.

HER HONOUR: That’s why a building information certificate will have to be applied for, because in order to get a building information certificate, they’re going to have to demonstrate that it’s structurally sound. That’s what a building information certificate does.

STEELE: I appreciate that.

HER HONOUR: If they can’t get a building information certificate, they’ll have to knock it down.

STEELE: I hear what your Honour says. We would say that that wall is already included in your order and your judgment because—

HER HONOUR: Ms Steele, there’s a difference between me making orders that are going to provide for a good environmental outcome and provide for a proper management of the considerations in the exercise of my discretion, and there’s a difference with punishment. These are not criminal proceedings where I’m punishing these people for the purposes of punishing them. As Ms Reid has said – and I raised this in relation to half of the reason why I didn’t make the orders – there are things, for example, like the fence that needs to go across the top of the fall, and that those issues need to be addressed. It may well be that the slab and the wall were in your orders, but the wall itself forms a different function than the slab. They are going to need to stop people falling over, for public safety reasons. If you’re worried about structural concerns, then the building information certificate will deal with that.

If you really want to die in a ditch over this issue, then I am prepared to, when I list this matter for hearing, reserve the issue of this wall, and you can argue about it then. But this matter is only listed for mention today, and I will make orders except for that wall at this time. But it seems to me that the better result at this stage, rather than your client merely trying to obtain a pound of flesh rather than getting a result that is actually going to assist them, is that the matter be dealt with by way of building information certificate rather than the issue, because I don’t recall you making any submissions in relation to that wall.

STEELE: Your Honour, we’re content to proceed with the pragmatic approach that your Honour has suggested, that that wall can remain, subject to the first respondent obtaining a building information certificate in respect of that wall.

24. On 30 September 2022 the Court made final orders in the proceedings (“final orders”) (emphasis added):

TERMS OF ORDER MADE BY THE COURT

1 The Court orders that the First Respondent be restrained from undertaking any work pursuant to, in reliance on, or described in the Landscape plans prepared by Dapple Designs, Issue D dated 21/10/2021, Reference Number LP 01, Sheet Numbers 1-12 incusive [sic] (Landscape Plans) or otherwise acting upon the Landscape Plans.

2 The Court grants leave to the Applicants to file and serve instanter the application pursuant to UCPR 36.7 in relation to paragraph 117 of the judgment of Her Honour Duggan J dated 25 August 2022 (Judgment).

3 The Court orders, pursuant to UCPR 36.17 that the second and third sentences of paragraph 117 of the Judgment be changed so as to read as follows:

“Works relating to the central stairs have been constructed. In the circumstances of the removal of the Southern Slab the retention of the central stair works will not have such a significant amenity effect that, in light of the other orders I propose, that the stair works should be demolished”**.

4 The Court orders that, within six months of the earlier of the date of these orders or the date upon which an occupation certificate in respect of the work**s constructed pursuant to Development Consent DA 2020/0430 granted on 7 October 2021 by the Georges River Council (DC) is issued (Occupation Certificate), the First Respondent must demolish:

a. The concrete slab and the low concrete wall between the mean high water mark and the approved dwelling house on the north-east corner of the site being Lot 13 in DP 14844 located at 26 Bowden Crescent, Connells Point NSW (the Site) adjacent to 28 Bowden Crescent, Connells Point (Northern Slab); and

b. The concrete slab constructed on the south-west corner of the Site adjacent to 24 Bowden Crescent, Connells Point (Southern Slab)

and referred to in the Judgment.

5 In the event that, within six months of the date of these orders, or the date upon which an Occupation Certificate is obtained, the First Respondent obtains a building information certificate pursuant to s 6.25 of the Environmental Planning and Assessment Act 1979 in relation to the portion of low concrete wall adjacent to the Northern Sla**b, and referred to in order 4(a), circled in red and blue on Attachment A to these orders, demolition of that portion of the wall is not required.

6 The Court orders that the First Respondent be restra**ined from placing any building or construction materials or plant or machinery upon either of the Northern Slab or Southern Slab whilst they remain on the Site.

7 The Court orders that, during the demolition ordered pursuant to order 4, the First Respondent make safe:

a. the existing excavated rock face adjacent to the boundary between the Site and the land owned by the Third Respondent; and

b. the portion of the Site between the proposed dwelling house and the boundary between the Site and the land owned by the Third Respondent.

8 The Court orders that the First Respondent submit and obtain a construction certificate for a detailed landscape plan consistent with the DC and reflecting the existing landform and the existing natural rock at the Site following the demolition by the First Respondent of the portions of the natural rock face.

9 The Court orders that, in the implementation of any of the work identified in orders 4 to 8 above, the First Respondent must:

a. Comply with all applicable laws, requirements of any authority, Australian Standards and the Building Code of Australia, including but not limited to paragraphs 26 and 27 of the DC;

b. Ensure that maximum noise levels in relation to any work undertaken at or in the vicinity of the Site do not create a nuisance;

c. Ensure that levels of dust that may be created as a result of any work undertaken at or in the vicinity of the Site comply with the requirements of the DC and any applicable Australian Standard;

d. Ensure that all works are carried out by hand operated machinery including a concrete saw and jack hammer;

e. Comply with Australian Standard 2601-2001;

f. Ensure that the natural rock face exposed as a result of the First Respondent’s excavation of the Site since October 2021 be stabilised in accordance with the requirements of a duty qualified geotechnical engineer and so as to protect the rock face and avoid slippage of rock and soil;

g. Ensure that any exposed dowels be cut off flush with the face of the rock and any cut dowels be treated with an appropriate epoxy substance;

h. Install a dust control mesh around the perimeter of the works being undertaken on the Site to control any dust generated by the removal of the Northern Slab and Southern Slab; and

i. Otherwise comply with the conditions of the DC when undertaking the works required by these orders.

10 The First Respondent has liberty to apply to extend the time for compliance with these orders. …

25. Annexure A referred to in the final orders was in this form:

Subsequent Events

26. On 21 March 2023 Elgammal made an application to extend time for compliance with order 5 of the final orders from 6 months to 12 months.

27. The date for compliance with orders 4(a) and (b) requiring the demolition of the Northern and Southern Slabs expired on 30 March 2023.

28. On 3 April 2023 Davidson. Legal, Consulting, Advisory (solicitors for the Saders) wrote to One Group Legal (solicitors for Elgammal) stating that there had been a failure to demolish the structures referenced in the final orders as the “Northern Slab” and “Southern Slab”, and foreshadowed contempt of court proceedings if they were not removed forthwith.

29. On 5 April 2023 One Group Legal responded to Davidson. Legal, Consulting, Advisory stating:

… we refer to your letter of 3 April 2023. We are presently obtaining instructions from our client. Due to the Easter Break, we will not be in a position to respond until Friday, 14 April 2023.

30. On 13 April 2023 a motion for contempt was filed. The motion contained three charges, namely, that Elgammal failed to demolish the Northern Slab (charge 1), that he failed to demolish the Southern Slab (charge 2), and that building or construction materials were placed on the Northern and Southern Slabs between approximately 31 March and 11 April 2023 (charge 3).

31. On 27 April 2023, Duggan J granted the application to extend time for compliance with order 5 of the final orders and amended it so as to replace the word “six” with the word “twelve”.

32. Not guilty pleas were entered by Elgammal on 19 May 2023 in respect of all three charges. Elgammal was present in Court when the pleas were entered.

33. An affidavit sworn by Elgammal on 11 July 2023, indicates that he was aware of the final orders when they were made by the Court on 30 September 2022.

34. On 30 August 2023 Elgammal informed the Council by email to Anthony Patti, Contract Building Surveyor, that “I can confirm the slab has been removed. Please find attached structural adequacy report for the low wall post slab removal”. The attached structural engineering report was prepared by Dr Ali Amin and was dated 13 August 2023 (“the Amin Report”). Dr Amin is Elgammal’s structural engineer. The report stated, among other things, that the “southern upstand wall” “formed part of an integral slab which has since been demolished”.

35. On 6 September 2023 Building Information Certificate 149D2023/0030 (“BIC”) was issued by the Council for a structure identified as the “southern most part of the retaining wall constructed beyond the mean high water mark”.

36. On 20 February 2024 Mark Manning, the structural engineer appointed by the Saders, inspected the site. His report dated 22 March 2024, indicated that the Northern and Southern Slabs remained intact and undemolished (“the first Manning report”).

37. On 8 March 2024 the Saders filed an amended notice of motion and statement of charge. The application included charge 4 and added the words “or failed to fully demolish” to charges 1 and 2. The Court granted leave to amend.

38. Accordingly, the charges the subject of these proceedings are as follows:

1 The First Respondent, Yasser Elgammal, has failed to comply with Order 4(a) of the Orders made by this Court on 30 September 2022, a copy of which is annexed to this Statement of charge and marked ‘A’ (Orders), in that he has failed to demolish, or failed to fully demolish, the concrete slab between the mean high water mark and the approved dwelling house on the north-east corner of the Site, adjacent to 28 Bowden Crescent Connells Point (Northern Slab) by 30 March 2023 (or at all) and referred to in the Judgment.

Particulars

The approximate areas of the Northern Slab that have not been demolished, or fully demolished, are identified in RED in the plan annexed to this statement of charge and marked ‘B’.

2 The First Respondent, Yasser Elgammal, has failed to comply with Order 4(b) of the Orders in that he has failed to demolish, or failed to fully demolish, the concrete slab constructed on the south-west corner of the Site adjacent to 24 Bowden Crescent Connells Point (Southern Slab) by 30 March 2023 (or at all) and referred to in the Judgment.

Particulars

The approximate areas of the Southern Slab that have not been demolished, or fully demolished, are identified in BLUE in the plan annexed to this statement of charge and marked ‘B’.

3 The First Respondent, Yasser Elgammal, has failed to comply with breached Order 6 of the Orders in that building or construction materials were placed on the Northern Slab and the Southern Slab by or on behalf of the First Respondent or with his consent, approval or acquiescence between approximately 31 March 2023 and 11 April 2023, and between 18 – 20 February 2024.

Particulars

a. On or between 31 March 2023 and 11 April 2023, building rubble and topsoil was placed onto or above undemolished sections of the Northern and Southern Slabs.

b. On or between 18 and 2 February 2024, timber beams were placed onto or above undemolished portions of the Southern Slab.

4 The First Respondent, Yasser Elgammal, has failed to comply with Order 9(g) of the Orders in that, in the course of partially implementing work required by Order 4, he failed to cause exposed dowels be cut off flush with the face of the rock and then treated with an appropriate epoxy substance by 30 March 2023 (or at all).

Particulars

The approximate locations of the exposed dowels that have not been cut or treated are identified in GREEN in the plan annexed to this statement of charge and marked ‘B’.

5 In Charges 1 – 4 above,

a. “Judgment” means Sader v Elgammal [2022] NSWLEC 107.

b. “Site” means Lot 13 in DP 14844 located at 26 Bowden Crescent Connells Point.

39. On 22 March 2024 Elgammal entered a plea of guilty to charge 2.

40. On 5 April 2024 Elgammal entered a plea of guilty to charge 4.

41. Elgammal has pleaded not guilty to charges 1 and 3. These proceedings concern his liability for contempt in respect of those charges.

42. For the reasons that follow, I find Elgammal guilty of charge 1 and guilty of charge 3.

Evidence of the Parties

43. On behalf of the Saders, the following evidence was tendered and read:

(a) four affidavits of Dr Sader sworn 12 April and 4 May 2023, and 27 February and 15 August 2024, attaching, among other documents, a plethora of photographs of the site taken by him; (b) the first Manning report; (c) a further report by Manning dated 23 August 2024 (“second Manning report”), critically responding to the Amin Report; (d) parts of affidavits deposed to by Elgammal sworn on 21 March and 11 July 2023; (e) correspondence from the legal representatives of Elgammal sent in September 2022; and (f) additional and separately tendered photographs and aerial images of the site.

44. Dr Sader was cross-examined.

45. Elgammal relied upon:

(a) the Amin Report (which was admitted subject to a limitation pursuant to s 136 of the Evidence Act 1995, that it was not adduced as expert evidence); and (b) the BIC application, the Planning Statement for Building Information Certificate dated 10 March 2023 and the BIC.

46. On 28 August 2024 the Court inspected the site. In addition to the parties, Manning was present during the inspection.

47. During the site visit it was noted that sections of the northern horizontal concrete slab supporting the eastern retaining wall remained.

The Structures the Subject of the Northern Slab

48. It is convenient, as the parties did, to break up the elements of the Northern Slab into four constituent sections:

(a) the horizontal concrete slab; (b) the northern low concrete retaining wall facing 28 Bowden Crescent; (c) the eastern low concrete retaining wall below the MHWM; and (d) the eastern low concrete retaining wall above the MHWM.

49. The Saders allege that none of these elements were demolished as required by 30 March 2023.

The Structural Engineering Evidence

50. Manning is a civil and structural engineer who carried out two site inspections of the site on 13 and 20 February 2024. Consequent upon the inspection, he relevantly concluded in the first Manning report that in relation to the Northern Slab, it was “shallow sawcut with possibly a small depth of its top surface removed, but never substantially demolished, i.e. only the concrete upstand to its north-western edge was demolished.” Further, he stated that there was building material placed on undemolished parts of the Northern and Southern Slabs.

51. In the second Manning report, Manning had regard to the annexures of the 11 July 2023 affidavit of Elgammal and opined that:

21. It follows from…the mere existence of the Amin Report, that the Northern Slab has not been completely demolished, as outlined in my March Report. This statement also supports the opinion noted at paragraph 13 of my report, in relation to the assumed details of the Northern Slab. Dr Amin’s opinion that the slab is structurally adequate appears to be driven by his assumptions about how the slab was constructed. To the extent that his opinion depends upon the measurements that he has included in Figures 1 and 2, my view is that those figures do not accurately reflect what I observed at the Adjacent Site. Accordingly, any calculations or opinions formed by reference to the dimensions in those figures would be of no assistance to understand the structural suitability of the slab, which I observed at the site and described in my March Report as the Northern Slab.

52. According to Dr Sader in cross-examination, these works took place in April and not March 2023.

53. Irrespective of when the works were carried out, there is no doubt whatsoever that part of the northern horizontal concrete slab remained on site as at 28 August 2024.

General Contempt Principles

The Purposes of Contempt Proceedings

54. The Court’s power to punish a contemnor in civil proceedings is inherent in its function as a superior court of record (Fairfield City Council v Camilleri [2024] NSWLEC 56 at [30]). Its purpose is to protect the effective administration of justice by:

(a) demonstrating that the Court’s orders will be enforced (Georges River Council v Hamade [2023] NSWLEC 71 at [32], Randwick City Council v Arxidia Pty Ltd [2021] NSWLEC 105 at [62] and Environment Protection Authority v Pannowitz (No 2) [2006] NSWLEC 797; (2006) 153 LGERA 126 at [20]); and (b) vindicating the Court’s authority (Australasian Meat Industry Employees’ Union v Mudginberri Station Proprietary Limited [1986] HCA 46; (1986) 161 CLR 98 at [20] per Gibbs CJ, Mason, Wilson and Deane JJ and Pannowitz (No 2) at [21]).

What Constitutes Civil Contempt

55. Civil contempt involves disobedience of a court order in civil proceedings (Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at [10] per Brennan, Deane, Toohey and Gaudron JJ).

56. 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 a breach (Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at [133] per Kirby J and Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92; (2009) 167 LGERA 91 at [58] per Biscoe J).

57. Courts have been critical of the distinction between civil and criminal contempt. As Kirk JA opined in Novelly v Tamqia Pty Ltd [2024] NSWCA 167 (at [67]-[68]):

67 The distinction long drawn between civil and criminal contempt has been described by the High Court, for good reason, in the following terms: theoretical; of an unsatisfactory nature; involving arbitrary classification; absurd in at least one respect; complex and artificial in another; in significant respects illusory; and one which overlooks the fact that the rationale underlying every exercise of the contempt power is to uphold and protect the effective administration of justice: Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at 107-108; Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at 531-533. Attempts to draw a strict distinction also assume, incorrectly, that the litigious world is neatly divided into two parts, civil and criminal: cf Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; [2003] HCA 49 at [113]-[114].

68 The distinction is so troublesome – in an area already burdened with technicality – that the need to grapple with it is likely to constitute a further disincentive for any party to bring a contempt application. That is not to suggest that contempt applications should readily be brought. But remedies for contempt are one of the foundations of the effective exercise of judicial power. If “a court lacked the means to enforce its orders, if its orders could be disobeyed with impunity, not only would individual litigants suffer, the whole administration of justice would be brought into disrepute”: Mudginberri at 107, quoting Borrie and Lowe’s Law of Contempt (1983, 2nd edn, Butterworths). Placing too many hurdles in the way of contempt proceedings tends to undermine the efficacy of the remedy and in that way may weaken the administration of justice.

58. 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 (Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 at [147] per Kirby J). On the other hand, contempt that is wilful in the sense that there is “deliberate conduct but without specific intent to defy judicial authority” (Parramatta City Council v Roy DR Services Pty Ltd [2005] NSWLEC 756 at [48] per Preston J) amounts to disobedience that is more than technical, but falls short of a specific attempt to defy the Court’s authority (Pelechowski at [147]-[148] and Arxidia at [66] per Duggan J). Contumacious contempt involves conscious and deliberate defiance of the Court’s orders and its authority (Witham at [10], Kelly (No 3) at [48] and Gerondal v Eurobodalla Shire Council (No 5) [2011] NSWLEC 104 at [33] per Pain J).

59. Both wilful and contumacious contempt involve intentional non-compliance with a court order (Witham at [8] and Camilleri at [29]). However, contumacious contempt is “more grave” because it renders what would otherwise be civil contempt as criminal contempt (Blacktown City Council v Jason Gabriel Saker (No 4) [2022] NSWLEC 80 at [33]).

60. It is neither necessary nor appropriate to determine whether the alleged contempt is technical, wilful or contumacious.

Procedure in Civil Contempt Proceedings

61. Rule 6.3 of the Land and Environment Court Rules 2007 (“LEC Rules”) provides that:

6.3 Application of Supreme Court Rules regarding contempt

Part 55 (Contempt) of the Supreme Court Rules 1970 applies, so far as applicable, to proceedings to which this Part applies.

62. As a consequence, Pt 55 of the Supreme Court Rules 1970 (“SCR”) applies to the contempt proceedings, especially rr 55.6-55.8.

63. Rule 40.6 of the Uniform Civil Procedure Rules 2005 (“UCPR”) is also applicable:

40.6 Doing or abstaining from doing an act

(1) This rule applies in the following circumstances—

(a) if—

(i) a judgment requires a person to do an act within a time specified in the judgment, and

(ii) the person fails to do the act within that time or, if that time is extended or abridged, within that time as extended or abridged,

(b) if—

(i) a judgment requires a person to do an act forthwith, or forthwith on a specified event, and

(ii) the person fails to do the act as so required,

(c) if—

(i) a judgment requires a person to abstain from doing an act, and

(ii) the person disobeys the judgment,

but does not apply to a judgment for the payment of money (including a judgment for the payment of money into court).

(2) In circumstances to which this rule applies, a judgment may be enforced by one or more of the following means—

(a) committal of the person bound by the judgment,

(b) sequestration of the property of the person bound by the judgment, …

64. In Kelly (No 3) Biscoe J considered the intersection of Pt 40 of the UCPR and Pt 55 of the SCR (at [36]-[38]):

36 The relationship between SCR Pt 55 and UCPR Pt 40 is unclear. The unclear relationship between SCR Pt 55 and the predecessor to UCPR Pt 40, namely SCR Pt 42, was noted by McHugh J in Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525 at 544 fn 105, as follows:

The power to fine, where a fine is applicable, is found in Pt 55, r 13. The relationship between Pts 42 and 55 is unclear. Although Pt 55 relates to both criminal and civil contempt, the relationship between the two Parts is not defined. It is perhaps arguable that the specific references to disobeying a judgment or order and the consequential remedies given in Pt 42 are intended to qualify the general statement of powers in Pt 55 in relation to contempts involving disobedience of orders.

37 In contempt proceedings in Miller v Eurovox Pty Ltd [2004] VSCA 211, the Victorian Court of Appeal treated Order 66.10 of the Victorian Supreme Court (General Civil Procedure) Rules 1996 (Vic), which is similar to (NSW) UCPR 40.7, as qualifying the Victorian Supreme Court’s power to punish for contempt by committal or sequestration. They did not refer to McHugh J’s dictum in Witham but in effect they accepted the argument that his Honour suggested. They did not expressly consider the possibility that Order 66.10 was an independent and alternative regime to the contempt procedure for enforcement of an order by way of contempt proceedings. The appellants were found guilty of contempt for disobeying a freezing order and sentenced to imprisonment. The Court of Appeal held that they could not be sentenced to imprisonment because they had not been served with a copy of the order endorsed with the prescribed penal notice required by Order 66.10. Vincent JA (Batt and Buchanan JJA agreeing) held:

… it is apparent, in my view, that a clear distinction is made in the Rules between the penalties of committal and sequestration on the one hand, and the imposition of a fine on the other. Order 66.10 is applicable only to the enforcement of orders by sequestration or committal. Under Order 75.11 contempt may be punished, in the case of a natural person, by committal to prison or a fine or both. It does not seem to me that the absence of the endorsement required, if the order is to be enforced by possible imprisonment, would remove the power of the Court to impose a fine.

38 As a result of the decision in Miller v Eurovox and the dictum of McHugh J in Witham v Holloway, it appears that UCPR Pt 42 qualifies SCR Pt 55 to the limited extent that it is applicable. In particular, in contempt proceedings, the contemnor cannot be punished for contempt by way of committal or sequestration for disobeying an order requiring a person to do an act within a specified time unless a sealed copy of the order has been served on the contemnor endorsed with the prescribed penal notice as required by UCPR 40.7 (unless the exception in 40.7(4) applies or the court dispenses with service under 40.7(5)).

65. The moving party who seeks a contempt order bears the onus of establishing the contempt charged beyond reasonable doubt. This is irrespective of whether the contempt is civil or criminal (Witham at [20] and Novelly at [69]). Because contempt applications are not criminal proceedings but are civil proceedings, the procedure to be applied is civil procedure (Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21; (2015) 256 CLR 375 and Novelly at [69]).

Issues Arising in These Contempt Proceedings

66. Issues of both fact and of law arise in these contempt proceedings. First, an issue of law arises insofar as it is alleged that the final orders made by Duggan J are ambiguous with respect to the retention of the eastern retaining wall and the sections of the horizontal concrete slab upon which it is located. Second, issues of fact arise as to whether, upon the proper construction of those orders, they were breached by Elgammal.

Elements of Contempt

67. The elements of contempt have been variously identified. In Re*.*Group Pty Ltd v Kazal (No 4) [2017] FCA 1084 they were stated by Perram J as (at [73]-[74]):

73 There was no real debate about the principles to be applied. Those principles are:

1. The purpose of the law of civil contempt is to compel obedience rather than punish disobedience which, by contrast, is the domain of criminal contempt.

2. Both are to be proved beyond reasonable doubt.

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 contemnor 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 that 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.

4. Whether the alleged contemnor intended to breach the order and to defy the Court is a matter going to penalty.

74 As to (i) see Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 at 168 [133] per Hayne, Heydon and Crennan JJ; as to 2 and 3(i)-(v) see Advan Investments Pty Ltd v Gleeson Motor Sales Pty Ltd [2003] VSC 201 at [31]-[32] per Gillard J; as to 3(v) see Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98 at 106-107; as to 4 see Kazal v Thunder Studios Inc (California) [2017] FCA 111 at [105] per Besanko, Wigney and Bromwich JJ; see also Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; (2014) 47 VR 527 at 598 [299].

68. In summary, in order for Elgammal to be found guilty of contempt, the Saders must prove beyond reasonable doubt that with respect to each of charges 1 and 3:

(a) first, an order directed to Elgammal was made by Duggan J; (b) second, the final orders were sufficiently clear; (c) third, the final orders were served on Elgammal or service of the final orders was lawfully dispensed with; (d) fourth, Elgammal had knowledge of the terms of the final orders; (e) fifth, Elgammal breached the final orders; and (f) sixth, Elgammal took a deliberate step which, even if not intended to, breached the final orders.

69. Given that the first, third and fourth elements raise issues common to both charges, it is convenient to deal with them compendiously.

Orders Are Made by the Court

Both charges

70. In respect of both charges, this element was not in dispute and is satisfied. The final orders were plainly directed to Elgammal.

Were the Final Orders Served on Elgammal?

Both charges

71. The service requirements of a judgment and orders on a person bound by it are governed relevantly by r 40.7 of the UCPR:

40.7 Service of copy of judgment before committal or sequestration

(1) A judgment is not enforceable by committal or sequestration unless—

(a) a sealed copy of the judgment is served personally on the person bound by the judgment, and

(b) if the judgment requires the person to do an act within a specified time, the sealed copy is so served within that time or, if that time is extended or abridged, within that time as extended or abridged.

…

(3) The sealed copy of the judgment must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property—

(a) where the judgment requires the person to do an act within a specified time, if the person fails to do the act within that time, or

(b) where the judgment requires the person to do an act forthwith or forthwith on a specified event, if the person fails to do the act as so required, or

(c) where the judgment requires the person to abstain from doing an act, if the person disobeys the judgment.

(4) If a person liable to committal or sequestration by way of enforcement of a judgment has notice of the judgment—

(a) by being present when the judgment is directed to be entered, or

(b) by being notified of the terms of the judgment, whether by telephone, telegram or otherwise,

the judgment may be enforced against that person by committal or sequestration without service having been effected in accordance with this rule.

(5) The court may dispense with service under this rule.

72. Ordinarily service of a judgment and orders on a person bound by them is required (r 40.7 of the UCPR). However, pursuant to r 40.7(4) and (5) of the UCPR the rules of service may be dispensed with.

73. Elgammal complains that the final orders were not served upon him and that therefore the contempt proceedings are fatally flawed and the motion initiating the proceedings must be dismissed.

74. This complaint must be rejected for several reasons. First, assuming that no service occurred (the Saders could not prove that there had been), Elgammal was plainly notified of the terms of the final orders (see r 40.7(4) of the UCPR). This may be inferred from the fact that:

(a) he was present in Court during the substantive hearing from 14 to 17 June 2022; (b) between 29 and 30 September 2022, he participated in the formulation and drafting of the final orders (through his legal representative); (c) on 8 December 2022 he lodged the application for the BIC in conformity with order 5 of the final orders; (d) he applied to the Court for an extension of time for compliance with order 5 on 21 March 2023; (e) an affidavit sworn by Elgammal on 21 March 2023, which was tendered in these proceedings by the Saders, makes it clear that he was aware of the final orders; (f) he was present in Court on 19 May 2023, when his pleas of “not guilty” were initially entered in respect of the (then) three charges the subject of the motion filed on 13 April 2023; and (g) in an affidavit sworn by him on 11 July 2023, which was also tendered by the Saders, he stated that he understood the seriousness of the final orders made by the Court.

75. In these circumstances, service can be dispensed with because Elgammal was notified of the terms of the judgment (r 40.7(4) of the UCPR).

76. Second, if, in the alternative, service was required notwithstanding the operation of r 40.7(4), I would not hesitate to order that it be dispensed with exercising my power under r 40.7(5) of the UPCR. Service ought to be dispensed with to avoid the absurd result of the acquittal of Elgammal to the two charges to which he has pleaded guilty (charge 2 on 22 March 2024 and charge 4 on 5 April 2024). It would be somewhat anomalous for Elgammal to claim that in respect of two of the four charges he was aware of the terms of the judgment and final orders, but in respect of the other charges, he had no such knowledge or awareness.

77. As the Saders correctly submitted, by entering a plea of guilty to two of the four charges, Elgammal has admitted the elements of those charges, including that he had knowledge of the terms of the judgment and final orders. He cannot claim ignorance of this knowledge for the remaining two charges.

78. Third, in any event, as the caselaw demonstrates, failure to comply with r 40.7 does not, in any event, preclude conviction for contempt (Kelly (No 3) at [86]-[91]).

Construing Orders in Contempt Proceedings

79. Court orders are subject to ordinary rules of construction (Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483 at [19] per Windeyer J). Court orders should, so far as practicable, be self-standing (Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 at [28]-[29] and Rafailidis v Camden Council [2015] NSWCA 185 at [48]).

80. In Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567 Campbell J, quoting from Lindgren J in Microsoft Corporation v Marks ([1996] FCA 709; (1996) 139 ALR 99 at [9]) said (at [55]-[57]):

55 In my view, the court approaches the question of whether the order is ambiguous with the caution appropriate to a type of litigation which could result in the defendant being punished – if an order is really not clear, it is unjust for someone to be punished for not obeying it. As well, though, the court approaches the question of whether the order is ambiguous on the basis that the recipient is expected to try to understand it and obey it. If a person taking that approach to the order could be in real doubt about what it meant, in a respect which is relevant to the particular charge of contempt which is brought, the charge will fail. This means that there will sometimes be orders which a grammatical analysis would show to contain a syntactic ambiguity, but which are none the less enforceable if it is the type of ambiguity that has no real risk of misleading. There will sometimes be orders which contain a term which has multiple meanings, but where that semantic ambiguity has no real risk of misleading. If there were to be an order addressed to a promoter of musical groups not in any way to be involved in the advertising or promotion of a band under some particular name, the order would be enforceable notwithstanding that a “band” can sometimes be a rubber band, or a headband.

56 In deciding whether an order is certain enough to be enforceable by contempt proceedings, the task of construction of an order can go far enough to enable ambiguities which have no real risk of misleading someone who is trying to understand and obey the orders to be discarded. I agree with the following remarks of Lindgren J in Microsoft Corporation v Marks (1996) 139 ALR 99 at 121.

“The proposition that a contempt will not be found where the terms of an order or undertaking are unclear, ambiguous or apt to mislead (except, perhaps, if the prosecutor proved that the contemnor understood them in accordance with what the court holds to be their true meaning) must be distinguished from certain other propositions. It does not signify that there is no breach wherever there is difficulty in the construction of the terms of an order or injunction which it falls to a court to resolve. Nor does it signify that contempt will not be found wherever an alleged contemnor did not understand the terms of an order or injunction according to their true meaning, much less wherever an alleged contemnor was unaware that his or her conduct constituted a breach of the order or undertaking (cf Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31).”

57 In the case of consent orders, where surrounding circumstances can be used as an aid to construction, those surrounding circumstances can have the effect that an order which is ambiguous, considered in isolation, is found to be not ambiguous when read in light of the surrounding circumstances. As the surrounding circumstances that are taken into account are facts known to all parties to the consent order, they are the very thing that a person trying to understand and obey the order would take into account. Hence it is appropriate that any question of whether the order is ambiguous should be answered only after such facts have been taken into account.

81. Accordingly, the court will objectively interpret the orders like any other document and not consider the subjective intention of the judge pronouncing them (Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653 at [4]). The task is therefore to ascertain what the words of the order mean (Katter v Melhem [2015] NSWCA 213; (2015) 90 NSWLR 164 at [62]) when read on their terms as a whole (Sandrin v W & M Riggs Mechanical Repairs [2006] NSWCA 194 at [44]-[45]).

82. In Brown Brothers Waste Contractors Pty Ltd v Pittwater Council [2015] NSWCA 215; (2015) 90 NSWLR 717 McColl JA stated the principles for construing consent orders in this way ([165]-[167], footnotes omitted):

165 … It is “an elementary principle of justice and fairness that no order will be enforced by committal unless it is expressed in clear, certain and unambiguous language.”

166 In Athens v Randwick City Council, Hodgson JA was of the view that the court could “consider context in the case of consent orders, in much the same way as one can consider context in construing a contract”. His Honour referred with approval to Kirkpatrick v Kotis, where Campbell J (as his Honour then was) discussed authorities supporting this proposition and concluded that “[t]he type of surrounding circumstances which can be used are those which can be used to construe a contract, in accordance with the principles laid down by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of N**ew S**outh W**ales [1982] HCA 24; (1982) 149 CLR 337 at 352”.

167 Although it has been said that it “appears to be an open question whether, before resort can be had to the reasons for judgment of a court for the purpose of construing its orders, the orders must contain an ambiguity”, where such ambiguity is found, the court can have regard to extrinsic evidence. Such evidence may include “reference to the proceedings in which the judgment is given, particularly the pleadings”.

83. The context in which the order was made should be considered, including the statutory context (AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; (2010) 78 NSWLR 302 at [98] and [99]).

84. In Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170; (2014) 86 NSWLR 674 Basten JA provided this summary (at [67]):

67 In order to construe an order, a court should:

(a) identify the statutory power under which the order was made (to avoid a construction leading to invalidity);

(b) address the language used, to identify a plain meaning if one is available;

(c) if latent ambiguity is alleged, refer to the reasons for judgment and the application to which the order responded;

(d) in the event of ambiguity (or other uncertainty), not resolved by reference to the reasons for judgment and the terms of the application, look to the submissions and (possibly) other material before the judicial officer on the application.

85. Extrinsic evidence is available as an aid in the construction of orders when the language of an order is ambiguous or susceptible to more than one meaning (AVS at [98], Wende at [60]-[63] and Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34 at [30]-[31]). But such material cannot be used to displace the plain effect of the words of the orders (Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256 at [18]).

86. As the learned authors Perry Herzfeld and Thomas Prince discuss in their authoritative Australian work, Interpretation (3rd ed, Lawbook Co., 2024) (see at [36.120]), although there is jurisdictional divergence between the States as to whether extrinsic material is permitted to answer the second interpretative question in contempt proceedings, New South Wales appears to have adopted a cautious approach to the effect that “it is not appropriate to close one’s mind altogether to context. … Whether or not one can have regard to the judgment in considering this second question may depend on the circumstances” (Athens v Randwick City Council at [32]-[33]).

87. The rules of construction applicable to orders apply to consent orders such as the final orders the subject of these contempt proceedings (Katter v Melhem at [61], Brown Brothers at [167] and [175] and LC**M Litigation Fund Pty Ltd v Coope [2017] NSWCA 200 at [24]).

88. More recently in Ross v Lane Cove Council Leeming JA stated that (at [50]):

50 Because there is a pending prosecution for contempt, and the parties have propounded divergent constructions of the same order, it is desirable to make clear beyond argument what is not decided by these reasons. In the context of contempt, there are as Hodgson JA observed in Athens at [27]–[28] two interrelated questions. The first is what does the order require, on its true construction. That is a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd at [19], and it is the starting point for the analysis required to resolve ground 3 of this appeal. The second is whether the order was sufficiently clear to the person affected by it to support its enforcement. The principle has been variously expressed, including by Lindgren AJA with the agreement of McColl JA in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [152]: “In order to ground a contempt of court, an order or undertaking must be ‘clear’, ‘precise’ and ‘unambiguous’, referring to Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483.”...

89. Because the person affected by the orders must know, or ought to be able to ascertain, what they are required to do or refrain from doing (Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [58] and Athe**ns v Randwick City Council at [31]), the proper construction of orders in the context of contempt proceedings, therefore, gives rise to two important questions: first, what does the order require upon its true construction; and second, whether this is sufficiently clear to the person affected by the order to support its enforcement against that person.

What did the order to demolish the Northern Slab contained in order 4(a) and partially dispensed with in order 5 require upon its true construction?

90. A great deal of the hearing was occupied by deciphering the meaning of order 4(a) concerning the requirement to demolish the Northern Slab and the dispensation provided to that order contained in order 5, especially insofar as both orders applied to the section of the low concrete wall and the horizontal concrete slab that was cantilevered out on the north-eastern corner of the site over Crown Land.

91. According to the Saders, there was nothing ambiguous about order 4(a) of the final orders. What was required was the total demolition of the whole of the Northern Slab. Removal of only part of that Slab and leaving a portion intact as the footing of the retaining wall in either its northern or eastern aspects did not comply with the orders. This was made clear by the terms of charge 1, which particularised the alleged failure by Elgammal to comply with order 4(a) by reference to a detailed plan identifying which parts of the Northern Slab remained undemolished.

92. In other words, in addition to the removal of the northern section of the retaining wall and horizontal concrete slab, the two limbs of order 4(a) required the removal of the following structures on the north-east corner of the site: “the concrete slab and the low concrete wall between the mean high water mark and the approved dwelling house” (emphasis added).

93. The Saders submitted that the structure referred to as the “Northern Slab” is located on both sides of the MHWM identified by the red line marked on the first aerial photograph at Annexure A to the final orders. Therefore order 4(a) required the demolition of the horizontal concrete slab at RL 5.3 on both the site and beyond the MHWM on Crown land and the demolition of the retaining wall forming part of that horizontal structure in that location. That order 4(a) required the demolition of the entire “low concrete wall between the mean high water mark and the approved dwelling structure” is apparent from the area circled in the first aerial photograph at Annexure A to the final orders.

94. Elgammal disputed this interpretation, arguing that order 5 dispenses him from any obligation in order 4(a) to demolish any part of the eastern low concrete wall, which included the footings of that wall comprising relevant portions of the horizontal concrete slab. This was apparent from Annexure A to the final orders that circled the entirety of the retaining wall and which was consistent with the remarks made by her Honour (quoted above at [22] and [23]) that she would not require the removal of a wall that would, in due course, need to be rebuilt in the same location.

The proper construction of orders 4(a) and 5 of the final orders

95. It was asserted that the final orders suffered from ambiguity in at least three ways. First, read literally, the words “between the mean high water mark and the approved dwelling” in order 4(a) appear to qualify both the “concrete slab” and “the low concrete wall”.

96. Second, it is unclear how much of the low concrete wall was “adjacent” to the Northern Slab as described in order 5. Much of the retaining wall was located on top of the horizontal concrete slab. This “ambiguity caused by the error in the Court’s order” (see the Council’s email dated 18 July 2023 quoted below at [120]) resulted in a request to pause the assessment and determination of the BIC application until confirmation from the Court and the parties clarifying the meaning of the order was obtained.

97. And third, the blue and red circles in Annexure A to order 5 were directly inconsistent with the repeated words “portion” in that order. The blue and red circles circumnavigate the entirety of the eastern retaining wall, and not just a portion thereof. The blue and red circles are also inconsistent with the exchange that took place between the Court and counsel for the parties on 29 September 2022, where Duggan J indicated that at least some portion of the low concrete wall could be retained (see above at [22] and [23]).

98. What, if anything, follows from this lack of clarity is discussed below.

99. The terms of order 4(a) of the final orders are unremarkable insofar as they stipulate the removal of, first, the “concrete slab”, in addition to (“and”), second, “the low concrete wall between the mean high water mark and the approved dwelling home” on the north-east corner of the site. As explained below at [110] and [111], any reading to the contrary leads to a result that is nonsensical when regard is had to the concerns expressed by the Court in the judgment.

100. Both structures must be removed. This is plain from the definition of the term “Northern Slab” by Duggan J in the final orders and in the judgment. It is also consistent with her Honour’s finding that neither structure had the benefit of a development consent (at [93]) and that the structural integrity of the entire Northern Slab was questionable (at [111], [112] and [120]).

101. Rather, the gravamen of the dispute between the parties was the extent to which all or part of the eastern section of low concrete wall referred to in order 4(a) was ‘saved’ by order 5 of the final orders and the extent to which that wall included the horizontal concrete slab upon which it rested (or the “footing” as Elgammal and Dr Amin referred to it as).

102. Order 5 states that if within six months Elgammal obtained a BIC “in relation to the portion of low concrete wall adjacent to the Northern Slab, and referred to in order 4(a), circled in red and blue on Attachment A to the final orders, demolition of that portion of the wall is not necessary” (emphasis added).

103. Lest there be any doubt, order 4(a) is clear on its face. It requires demolition of all of the horizontal concrete slab and separately the demolition of the low concrete wall between the MHWM and the dwelling within the time stipulated (the MHWM is identified by the red line in the first aerial photograph at Annexure A to the final orders).

104. Less certain, however, is the extent to which the low concrete wall was spared removal by reason of the operation of order 5. In addition to the confusion caused by the word “adjacent”, as stated above, ambiguity as to the scope of order 5 arises because all of the low concrete wall was circled in the photographs forming part of Annexure A.

105. Dubiety arose as to the location of the low concrete wall to be demolished because only a portion of the wall was “adjacent” to the Northern Slab; the wall having been partially constructed on top of the horizontal concrete slab. The Council considered this to be a misdescription by the Court and proceeded to assess the BIC on the basis that the Court intended to refer to the portion of the retaining wall built upon the concrete slab.

106. Elgammal submitted that because all of the eastern retaining wall had the benefit of the BIC, order 5 operated to dispense with the requirement to demolish any of it. Furthermore, of necessity, this included the section of the horizontal concrete slab that comprised the footing of the low concrete wall.

107. By contrast, the Saders argued that the criteria identified in order 5 were cumulative and that the dispensation from order 4(a) did not apply to the entirety of the low concrete wall, only to that part of the wall that was constructed adjacent to the horizontal concrete slab that was located above the MHWM. Moreover, there was nothing in order 5 that permitted Elgammal to retain any portion of the concrete slab either adjacent to or upon which the retaining wall was built, simply on the basis that all of the wall was the subject of the BIC. In short, order 5 applied to part of the wall only and to none of the concrete slab.

108. In my opinion, the submissions of the Saders as to the proper construction of the final orders at issue should be accepted. This is because the language of order 5 expressly states – twice – that the dispensation applies only to a “portion of the wall”. There is nothing in the order that refers either to the whole retaining wall or the necessity to retain the concrete slab underpinning that wall. Elgammal was therefore not entitled to retain the portion of the wall on Crown land that was below the MHWM or any of the horizontal slab supporting any of the retaining wall.

109. The construction of order 5 advanced by Elgammal requires reading into the order the words “and part of the horizontal slab referred to in order 4(a) to which the low concrete wall is affixed”. There is no warrant for doing so. Were it otherwise, it would suffer from the vice of uncertainty in respect of how much of the slab was permitted to be retained, thereby undermining the efficacy of order 4(a), which was directed towards the safety of the unlawful structure.

110. In addition, Elgammal’s construction posits that the words “between the mean high water mark and the approved dwelling house” in order 4(a) qualifies both “the concrete slab” and “the low concrete wall”. However, this would lead to absurdity insofar as it would require demolition of the section of the horizontal slab situated on the rock but retention of the part overhanging the rock cliff, which was the principal cause of the concern expressed by Duggan J in her judgment. So much so was acknowledged by Elgammal during the hearing (T14:44-15:06). It follows that the words “between the mean high water mark and the approved dwelling house” are directed to “the low concrete wall” and not “the concrete slab”. It is this portion of the wall, namely, the section that is on rock (and not overhanging it on Crown land), that is picked up by order 5.

111. Such a construction is wholly consistent with the judgment. The Court was concerned that the Northern Slab (as defined) would not be able to withstand the weight of landscaping and there was an absence of evidence that it was structurally sound. This fact alone was sufficient to warrant its demolition (at [100], [103], [111], [112] and [120]). I note that there was no suggestion of retention of the entirety of the retaining wall when the matter was argued before her Honour and it is not referred to in the judgment.

112. There is considerable force in the Saders’s submission that an interpretation that contemplates only partial demolition of the Northern Slab up to some unspecified point whereupon the concrete slab is needed to support an overhanging retaining wall would be antithetical to the opinions expressed by Duggan J in her judgment. It is more than arguable that Elgammal’s construction of the orders would render the horizontal slab less stable.

113. The fact that Annexure A to the final orders circles the whole of the wall is not a sufficient reason to construe order 5 as referring to the entirety of the eastern low concrete retaining wall. To do so ignores the words “portion” and “adjacent” which serve to circumscribe the scope of the dispensation in order 5 in a manner that is consistent both with the terms of order 4(a) and with the judgment.

114. Elgammal relied upon the exchange between counsel and Duggan J (quoted above at [22] and [23]) during the finalisation of the orders in support of his interpretation. In particular, he emphasised the sentiment expressed by her Honour that, “because there’s going to need to be a wall along the top of this rock at the fall anyway. I’m not going to require somebody to knock something [the wall] down just to have it rebuilt just for the hell of it”. He submitted that this indicated that it was the Court’s intention to exempt the whole of the eastern retaining wall from the demolition order in 4(a), provided that a BIC could be obtained in respect of it.

115. Such a position does not accord with the objective intent of the judgment and ought to be rejected. A more harmonious approach is to interpret her Honour’s remarks as a reference to the retaining wall above the MHWM supported by rock, not the horizontal concrete slab, and certainly not the cantilevered section of that slab. This meaning aligns with Duggan J’s comment that “there’s going to need to be a wall along the top of this rock at the fall anyway”.

116. The BIC application and the BIC (to which I consider that recourse may be permitted in light of the ambiguity inherent in order 5) ultimately resolves the confusion created by the final orders.

117. The BIC application was for the “rear retaining wall [low concrete wall] to south-east corner of the property”, which on the plans accompanying the application included all of the impugned parts of the wall traversing the horizontal concrete slab. But the BIC was issued for only “part” of the building, described as “Unauthorised works – Southern most part of the retaining wall constructed beyond the Mean High Water Mark (MHWM)”.

118. The Saders submitted that, unlike a development consent (see s 4.16 of the Environmental Planning and Assessment Act 1979 (“EPAA”)), there is no statutory power to condition a BIC or to approve only part of the building the subject of the application (see s 6.26(7) of the EPAA). A BIC can only be issued or refused; there is no power to issue a partial BIC notwithstanding that a BIC can be sought for part of a structure (ss 6.23 and 6.26(1) of the EPAA). Because the BIC application sought approval for all of the eastern low concrete retaining wall, this is what the BIC was issued for, irrespective of its terms. As a consequence, a BIC having been issued for the entirety of the low concrete wall constructed on or adjacent to the horizontal concrete slab pursuant to order 5, the retaining wall, together with its footing, was subject to the dispensation against removal in order 4(a) of the final orders.

119. The documents providing context to the BIC application and the BIC itself manifest a disconnect between what was applied for and what was granted by the Council. It is clear that what was applied for was approval for the whole of the low concrete wall traversing the eastern portion of the northern horizontal concrete slab, both below and above the MHWM. This is evidenced by:

(a) the pre-lodgement application form describing the structure as “low height retaining wall”; (b) the plans accompanying the application identifying the whole of the retaining wall and not a component of it; (c) consent of the Crown, which was not needed if the BIC applied only to land below the MHWM; and (d) the Planning Statement for the BIC describing the development as an application “to formalise a constructed low height (550mm high) concrete retaining wall at the south-east corner of the rear garden”.

120. After it was furnished with the final orders by Elgammal on 6 June 2023, and as a result of a query from Dr Sader on 18 July 2023, the Council became apprised of the ambiguity contained in order 5. In an internal email of the same date, James Fan, the Council’s solicitor, noted that:

I have just received a phone call from the lawyers acting for Dr Sader next door to the subject BIC application. I was asked to relay Dr Sader’s concerns about the BIC being said to relate to a retaining wall when in fact it has been constructed on a slab that is required to be demolished by the Land and Environmnet [sic] Court.

There seems to be an error in the wording of Order 5 of the Court in that the relevant wall is constructed on the slab, not adjacent to it. This slab is required to be demolished. The below photo, extracted from p 8 of the SJB Planning report, seems to show this before the area has been covered with fill.

Given that there is some ambiguity caused by the error in the Court’s order, I am waiting for comments from both of the lawyers involve [sic] in the Court matter to advise as to whether they will ask the Court to clarify the order. In the meantime, is it possible [sic] pause assessment and determination of the BIC application until we receive confirmation from the Court and the parties?

121. The Council also noted that because “the slab does not extend for the full length of the low wall and subject to engineers [sic] advice it may be possible to saw cut and remove the concrete slab and retain the low wall”. This is in fact what, in part, occurred.

122. Elgammal was notified that the Council was receiving advice in respect of the inconsistency on 8 August 2023. In the meantime, the Council sought confirmation from him “via advice from your structural engineer if the slab in question can be or has been demolished in accordance with court orders without affecting the structural adequacy of the low wall to be retained under this BIC application.”

123. On 30 August 2023 Elgammal responded stating that “I can confirm the slab has been removed. Please find attached structural adequacy report for the low wall post slab removal.” This is a reference to the Amin Report.

124. It was upon receipt of this email that the Council stated that it was in a position to “issue the BIC for the unauthorised retaining wall”. In doing so, it proceeded to assess the building the subject of the BIC application as the “Southern most part of the retaining wall constructed beyond the Mean High Water Mark” (see the Building Certificate (149D) Report dated 31 August 2023).

125. In the result, the Council did not issue a BIC for the entirety of the low concrete wall traversing the horizontal concrete slab as applied for by Elgammal. Whether it had the statutory power to issue the BIC was not a matter before the Court in these proceedings. No challenge was made by Elgammal to the lawfulness of the BIC. In any event, even if the Court were to find that the BIC was infected by error, this would not assist Elgammal. The corollary of such a finding would be the likely setting aside of the BIC with Elgammal unable to take the benefit of any dispensation provided by order 5, there having been no compliance with it.

126. Because the BIC approved only the “southern most part of the retaining wall constructed beyond the Mean High Water Mark”, it follows that pursuant to order 4(a) of the final orders, Elgammal was required to demolish the section of the low concrete wall that fell outside the scope of the BIC. This included the concrete slab to which it was attached or was adjacent to. The BIC did not refer to any part of the horizontal concrete slab; it was therefore not included in it. As a consequence, irrespective of the ambiguity contained in the final orders, no dispensation was obtained pursuant to order 5 from the edict in order 4(a) to remove all of the horizontal concrete slab in addition to the portion of the retaining wall that was below the MHWM.

Were orders 4(a) and 5 sufficiently clear to Elgammal to support enforcement?

127. The final orders were ambiguous in the manner described above. In my opinion, however, that ambiguity is able to be readily resolved upon the true construction of orders 4(a) and 5.

128. It is arguable that the interpretative analysis engaged in by the Court is not one that Elgammal could reasonably be expected to undertake in seeking to comply with the final orders. But this does not mean that orders were insufficiently clear not to support their enforcement against Elgammal, and I do not find so.

129. This is because whatever latent uncertainty was caused by orders 4(a) and 5 (including Annexure A) when against him read together, it was settled by the issuing of the BIC. The BIC made it tolerably clear what portion of the eastern retaining wall it applied to, and therefore, what fell within the dispensation provided by order 5 to that which was required by order 4(a) of the final orders. Contrary to Elgammal’s assertion, the BIC did not operate to save the entirety of the low horizontal concrete wall or any portion of the slab. Furthermore, for the reasons given above, order 4(a) cannot be construed as permitting any part of the horizontal slab to be retained.

130. I therefore find that orders 4(a) and 5 were ultimately sufficiently clear to support, subject to the Saders proving the remaining elements, a charge of contempt against Elgammal for failing to comply with the final orders.

Was the restraint against placing building and construction material on the Slabs mandated by order 6 sufficiently clear to Elgammal?

131. The Court ordered that Elgammal be restrained from “placing any building or construction materials or plant or machinery upon either of the Northern Slab or the Southern Slab whilst they remained on the Site.”

132. In my opinion, there is nothing ambiguous about the terms of order 6 and its true construction is obvious. That is, no (“any”) building or construction materials were to be placed, however temporary, upon either of the Slabs while the Slabs remained on the site. There is no need to have recourse to the judgment in this instance in order to determine their meaning.

133. Accordingly, having regard to the ordinary English understanding of the expression “any building or construction materials”, this would include spoil from demolition, concrete rubble, a steel fence barrier, and timber or materials used in landscaping, such as topsoil. These were all used for the purpose of building and construction works the subject of the 2021 consent.

134. If, however, contrary to this view, it is considered that the proper meaning of order 6 is attended by doubt, then recourse to Duggan J’s judgment makes her Honour’s objective intention in making order 6 abundantly clear. Insofar as the Northern Slab was concerned, her Honour noted that there was no evidence before her as to the manner by which it had been constructed. Because it was intended that the Northern Slab be capable of bearing the weight of landscaping, including planting, together with access by the occupants of the dwelling, the lack of evidence that it was structurally sound was in and of itself a reason to warrant its demolition (at [111] per Duggan J, as quoted above).

135. The consequences of this paucity of evidence was that (at [120]):

120 …In addition, a condition should be imposed that no building or construction materials or plant or machinery are to be placed upon either slab while they remain on the Site so as to ensure that the integrity of the slabs is not compromised and persons on the Site put at risk by activities pending demolition.

136. Concern about the structural integrity of the Slabs was the primary reason for, and informs the construction of, order 6, namely, to ensure its integrity in order to avoid harm to persons pending demolition.

137. Therefore, if there was any doubt about the meaning to be ascribed to order 6, it is immediately dispelled once regard is had to the judgment, namely, that no building and construction material was to be placed on the Slabs, irrespective of the duration of the emplacement.

Did Elgammal Have Knowledge of the Terms of the Final Orders?

Both charges

138. I repeat my reasoning and findings above with respect to the service of the final orders.

139. Having said this, while it is beyond any doubt that Elgammal had knowledge of the terms of the judgment and the final orders the subject of the contempt charges, this does not mean that Elgammal necessarily understood them.

The Final Orders Were Breached as Charged

The removal of the Northern Slab

140. Elgammal identified three distinct sections of the Northern Slab in his submissions and for the sake of convenience, the Court adopts the same. They are:

(a) the horizontal concrete slab; (b) the northern section of the low concrete wall; and (c) the remainder of the Northern Slab, excluding the sections referred to in (a) or (b).

141. In respect of (a), Manning’s evidence establishes that, at best, only part of the Northern Slab was removed by Elgammal within the timeframe stipulated by the final orders. Manning attended the site and dug in various locations on the Northern Slab. He found horizontal concrete slab in numerous locations thereby proving to the requisite degree that the slab had not been wholly demolished and remained on site contrary to order 4(a).

142. There is nothing in the Amin report that disturbs this conclusion. It does not constitute expert evidence and is largely based on assumptions that were not proven and could not be tested. To the extent that Dr Amin describes the remaining portion of the horizontal concrete slab as a type of footing system for the retaining wall, this was contradicted by Manning’s evidence and, for the reasons explained above, does not assist Elgammal given the correct construction of the final orders.

143. In relation to (b), Elgammal submitted that the northern low concrete retaining wall was demolished prior to 30 March 2023 in compliance with the final orders.

144. The photographs taken by Elgammal attached to Manning’s first report depict jackhammering of the demolished portion of the Northern Slab and the removal of the northern retaining wall after having been cut into smaller sections by a circular saw. After referring to those photographs, Manning stated that “the north-eastern upstand edge has been saw cut into blocks and disconnected”.

145. The more fundamental issue is when was this portion of the retaining wall removed?

146. According to Elgammal, the northern section of the retaining wall was demolished prior to 30 March 2023, and the Saders cannot prove beyond reasonable doubt to the contrary.

147. The Saders relied upon photographs taken by Dr Sader that were exhibited to his 12 April 2023 affidavit and his 15 August 2024 affidavit. In the former affidavit, Dr Sader stated that as at the swearing of the affidavit, the Northern Slab “remains in the same state that it was in on 30 September 2022 and no work has occurred to remove it”. In the latter affidavit, Dr Sader annexed photographs that show that as at 12 April 2023 the northern retaining wall was in situ.

148. Elgammal submitted that the photos were inconsistent with the contents of the 12 April 2023 affidavit insofar as they appear to show the edge of the section of the northern horizontal concrete slab with the northern wall removed. This conclusion was reinforced by Dr Sader’s evidence elicited in cross-examination that the combined height of the slab and the wall would be approximately 700-800mm (T59:25-60:30), which is not what is depicted in the photographs.

149. Elgammal also cross-examined Dr Sader on the date of the photographs annexed to his 15 August 2024 affidavit, to suggest that they were not taken on 12 April 2023, but were taken at an earlier date, that is, prior to 30 March 2023, and that he was mistaken about the date. This was denied by Dr Sader (T66:19-68:40).

150. While the photographs taken by Dr Sader on 6 April 2023 of bricks stacked upon what he states is the northern retaining wall are, in my view, equivocal, the photographs taken by him on 12 April 2023 demonstrate beyond any doubt that the concrete retaining wall facing north towards 28 Bowden Crescent was not, contrary to Elgammal’s submission, removed by the end of March 2023. The wall is present in those images. Other than their late production, the Court has no reason not to accept that Dr Sader did not take the photographs on the date that he claims, namely, 12 April 2023. Dr Sader presented as an honest witness who was careful and considered in his written and oral testimony.

151. Nor does the Court have any cogent reason not to accept Dr Sader’s evidence that the northern retaining wall was demolished on or about this date and not by 30 March 2023 (T66:37-68:40). There being no dispensation provided in order 5 to retain this section of the wall, this amounts to a breach of order 4(a).

152. Therefore, I find beyond reasonable doubt that the northern section of the low concrete wall had not been demolished prior to 30 March 2023 in contravention of order 4(a).

153. This leaves the eastern portion of the Northern Slab, including the eastern retaining wall above and below the MHWM.

154. Elgammal noted in his submissions that the northern section of the Northern Slab is not circled in either red or blue in Annexure A of the final orders. He submitted that if the intent of the dispensation in order 5 was to permit the eastern retaining wall to remain, it was necessary to retain the northern strip of the Northern Slab for structural reasons.

155. He relied upon the evidence of Manning, which was unequivocal in this regard. That is, without an adequate back span length (the northern strip of the horizontal concrete slab), the northern cantilever, comprising the cantilevered eastern strip of the horizontal concrete slab and the eastern low wall, would be unstable and would collapse.

156. Thus if the Court was satisfied that the dispensation in order 5 permitted the cantilevered part of the eastern retaining wall to remain, then it must, of necessity, permit the northern strip of that slab to remain. In other words, it fell within the dispensation.

157. The proper construction of the orders has been discussed above. For the reasons given earlier in this judgment, the analysis does not support an interpretation of the final orders that would extend the dispensation granted in order 5 to the northern part of the horizontal slab.

158. Properly construed, order 5 and the BIC issued pursuant to it, neither operated to save the whole of the retaining wall nor the remaining sections of the horizontal concrete slab that Elgammal says are necessary to support the low concrete wall. In this regard, the Court relies on the evidence of Manning which establishes beyond any doubt that the horizontal concrete slab remained at various locations on the Northern Slab (see the discussion above at [141] and [142]).

159. While Elgammal was correct to submit that the Court was not required to determine the merit of the structural efficacy of the cantilevered part of the slab or wall by examining the content of the BIC or the methodology by which the dispensation was envisaged to operate, the dispensation in order 5 did not permit this strip of the horizontal concrete northern slab to be retained.

160. It must follow, therefore, that Elgammal has breached order 4(a) of the final orders insofar as he has not demolished either the relevant section of the retaining wall excluded by the BIC or the portion of the horizontal concrete slab securing it.

161. To summarise, I find that Elgammal has failed beyond reasonable doubt to demolish by 30 March 2023:

(a) all of the northern horizontal concrete slab; (b) all of the northern retaining wall; and (c) the portion of the eastern retaining wall that is not the subject of a BIC and is above the MHWM.

The emplacement of building and construction materials on the Slabs

162. Two time periods are nominated in charge 3, viz, that contrary to order 6, between 31 March and 11 April 2023 building rubble and topsoil were allegedly placed on the undemolished section of both Slabs (“the first time period”), and between 18 and 20 February 2024, timber beams were allegedly placed on the undemolished portion of the Southern Slab (“the second time period”).

163. In relation to the first time period, the Saders relied upon photographic evidence depicting rubble on the Southern Slab and topsoil on the Northern Slab taken by him on 31 March 2023. On 6 April 2023 Dr Sader observed the placement of gravel on the Southern Slab, and his photographic images show rubble and plywood on top of the Southern Slab and topsoil and bricks on top of the Northern Slab. Further photographs dated 10 April 2023, depict rubble and plywood on the Southern Slab.

164. In respect of the second time period, Dr Sader again relied upon photographs taken by him on 19 and 20 February 2024, purportedly showing timber beams lying across the Southern Slab. When Manning attended the site the next day, he also photographed timber beams placed on the Southern Slab. It may be inferred that these were the same timber beams observed by Dr Sader on 19 February 2024.

165. Elgammal responded by arguing that the pile of concrete rubble that can be seen in the first Manning report was located in between the Northern and Southern Slab, and not on the Southern Slab as alleged. This was not contrary to order 6. As Manning stated, the mound of concrete rubble was “located approximately between the Southern and Northern Slab”.

166. However, this is not the end of the matter. Photographic evidence was before the Court showing building rubble the result of the demolition of the Southern Slab placed on top of that Slab.

167. Elgammal submitted that insofar as this rubble was located on the Southern Slab while that Slab was in the process of being demolished, this did not constitute “building or construction material” for the purpose of the order because it was part of, and separate from, the Southern Slab. Moreover, this rubble had not been “placed” on the Slab, but remained in situ as a result of purported compliance with order 6.

168. This argument must be rejected. There can be no doubt whatsoever that the demolished rubble remnants of the Southern Slab constituted building and construction waste. This was waste created as a consequence of the building and construction process on site. That the rubble was caused by the act of demolition in no way renders it something other than building and construction waste. It could not seriously be said, for example, that the resultant waste from the demolition of an existing dwelling prior to the commencement of a new house was not “building and construction” material. The term was not qualified in the final orders by the words “new”, “additional” or “imported”, which is what Elgammal’s submission demands.

169. The contention that the concrete rubble created by the demolition of the Southern Slab was not “placed” upon it in contravention of order 6, must equally be dismissed. The mere act of leaving the rubble in place meant that it was placed on, rather than removed from, the Slab. This meaning is harmonious with the Court’s anxiety reflected in its stated rationale for the making of the order, namely, to avoid any compromise to the structural integrity of the Slab.

170. Accordingly, to the extent that the demolition of the Southern Slab created rubble which was located on that Slab, the order was breached.

171. I likewise do not accept the submission by Elgammal that topsoil does not constitute “building or construction materials” for the purpose of order 6. The topsoil formed part of the materials to be used in the landscaping of the site. Landscaping involves the restructuring or reshaping of the built or natural environment either by way of soft landscaping (with plants and other living materials) or hard landscaping (with non-living materials such as timber or stone). The landscaping formed part of the building and construction of the development of this site. The topsoil was part of the landscaping “materials”. It was therefore part of the “building and construction materials”. Having regard to the terms of the judgment, there is no reason for the Court to limit the ordinary English meaning of the expression “any building or construction materials” (emphasis added). Such material was not to be left on either the Northern or Southern Slabs because its additional weight could undermine the structural strength of the Slabs.

172. According to Elgammal, the allegations concerning the topsoil pertained to the Northern Slab only and because that Slab has since been wholly removed, the Saders cannot demonstrate beyond reasonable doubt that topsoil was placed on the Northern Slab pending demolition.

173. However, charge 3(b) refers to topsoil placed onto or above undemolished sections of the Northern and Southern Slabs. When the Northern Slab was demolished is therefore irrelevant; if building and construction materials were placed on either Slab during the charge period, then order 6 was contravened.

174. During the time period from 31 March to 11 April 2023, the evidence was replete with photographs depicting building rubble, spoil and/or topsoil on top of both the Southern and Northern Slabs. For example, photographs taken on 31 March 2023 show building rubble on the Southern Slab and soil on the Northern Slab. On 6 April 2023 Dr Sader observed the placement of gravel on the Southern Slab and photographs taken on the same day depict building rubble and plywood on the Southern Slab and soil and bricks on the Northern Slab. And on 10 April 2023 photographs indicate the presence of building rubble and plywood on the Southern Slab.

175. In relation to the second time period between 18 and 20 February 2024, the affidavit of Dr Sader sworn 27 February 2024, annexed photographs of the site taken by him on 19 and 20 February 2024, showed timber beams lying across the Southern Slab.

176. Elgammal submitted that it could not be proven beyond reasonable doubt that Manning did not place the “lengths of timber recently stacked in the area” at that location when he inspected the site on 20 February 2024, as he described in the first Manning Report.

177. I agree. There is no evidence that the timber was in the vicinity of the Southern Slab on either 18 or 19 February 2024. Dr Sader deposed in his affidavit sworn 12 April 2024, that “since the making of the orders on 30 September 2022, I have observed the subject site on a daily basis”. The photographs of the site taken by Dr Sader on 19 February 2024 do not show timber present, whereas the photographs taken by him on 20 February 2023 of the same location depict the timber lying on the ground in front of a pile of rubble. There was evidence that Manning moved timber recently stacked at that location and, at least according to the photographs taken by him, placed the timber lengths on the ground. I therefore do not find that the Saders have proven to the requisite degree that Elgammal breached order 6 as particularised between 18 and 20 February 2024.

178. However, as explained above, Elgammal is nevertheless guilty of contempt as charged in charge 3 in respect of the first time period. The “building and construction materials” evidenced in the photographs before the Court consisting of spoil from demolition, building rubble, a steel fence barrier, tarpaulin screening and materials to be used to construct the garden in the vicinity of the Northern Slab, such as topsoil, was contrary to order 6. There was no evidence that the placement of these materials was temporary or was limited to the demolition process as suggested by Elgammal; it was not an isolated incident.

Did Elgammal take a deliberate step which, even if not intended to, breached the final orders?

179. In respect of the sixth element of contempt, it is not necessary to prove that Elgammal actually intended to disobey the final orders. Rather, what is necessary to demonstrate is that the orders were breached and that the act or acts constituting the breaches were the result of a deliberate step or steps. In other words, it must be proven beyond reasonable doubt not that the alleged contemnor intended to breach the order, but rather that the order was breached and that the action constituting the breach was intended.

180. It follows that casual, accidental or unintentional acts which breach a court order are excluded from the purview of contempt. As Stevenson J stated in GEMI 169 Pty Ltd v Suria Global (L) Pty Ltd (No 5) [2024] NSWSC 951 (at [13], footnotes omitted):

13 Further:

(a) it is sufficient to prove that an act or omission was deliberate, in the sense of not being casual, accidental, or unintentional, but not necessary to prove that the alleged contemnor actually intended to disobey the Court’s order; and

(b) it is not necessary to prove that the contemnor understood the terms of the order, because the recipient of an order has a positive obligation to try and understand and obey it, and wilful blindness is no defence.

181. In the case of non-compliance with an order requiring positive action, what must be shown is that the terms of the order were capable of being complied with. A party whose own neglect of the steps necessary to prevent a breach of orders in that there were steps that could have been taken but were not will, however, be guilty of contempt (Lade &Co Pty Ltd v Black [2006] QCA 294; [2006] 2 Qd R 531 at [63] and [86]-[87] per Keane JA (as his Honour then was)).

The demolition of the Northern Slab

182. There is no doubt that there were steps that Elgammal could have taken but did not do so in order to comply with the final orders. Manning’s evidence demonstrates that orders 4(a) and 5 were capable of being complied with. According to him, the time required to demolish the Northern Slab would be 5 to 10 days, and that the weather conditions did not prevent its removal.

183. As the evidence demonstrates, Elgammal undertook steps to remove the Northern Slab premised upon his belief that, pursuant to order 5 of the final orders, the BIC provided him with the necessary dispensation to order 4(a) which permitted him to keep the sections of the Slab necessary to support the low horizontal concrete wall.

184. In this regard, Elgammal took a deliberate step, that is, not to demolish all of the Northern Slab as required (having regard to the terms of the issued BIC) by the final orders. That it is arguable that he did not intend to breach the orders based on his understanding of them is presently not relevant.

The restraint regarding the emplacement of building and construction materials

185. The evidence demonstrates beyond any doubt that order 6 was breached on multiple occasions. It was not an isolated incident as claimed by Elgammal. I accept the submission of the Saders that a not insignificant amount of building rubble, topsoil and timber was deliberately left on top of one or other of the Slabs. No evidence of the casual, inadvertent or accidental emplacement of this building and construction material on the Slabs was put before the Court.

186. Moreover, I infer that Elgammal, as the registered proprietor of the site, the owner builder of the dwelling under construction, and the person who therefore supervised the contractors and has engaged tradespeople and labourers to carry out the works in compliance with the final orders, cannot argue that someone else placed the materials on the Slabs (North Sydney Council v Moline (No 2) [2008] NSWLEC 169 at [24] per Preston J). Furthermore, given the duration and frequency with which the material was located on the Slabs, it is inconceivable that Elgammal was not aware of it. I therefore find that the material was deliberately placed on the Southern and Northern Slabs either by, or on behalf of, Elgammal. There was no evidence to the contrary to displace this inference.

187. The presence of building and construction material on the Northern and Southern Slabs during the first time period was contrary to order 6 of the final orders. There is no evidence that their placement was temporary or limited to the demolition process, as Elgammal suggested. The prevalence of the building and construction material on the Slabs also voids any submission by Elgammal that the conduct in breach of order 6 during the first time period was casual, incidental or accidental.

188. In relation to the second time period, however, even if I were to find that the timber was placed on the Southern Slab by Elgammal as asserted by the Saders, I would find that the contempt was casual, accidental or unintentional. As stated above, Dr Sader observed the site daily, took regular photographs of the site, including by the use of drones (T54-57), and in respect of the second time period of alleged breach of order 6, it is only the timber and only in respect of a single day that is said to constitute the contemptuous conduct. The photographs of some timber placed on the Southern Slab for no more than a day is insufficient, in my view, to constitute a contempt of order 6. Accepting, as I do, that the timber was not present on the Slab on 18 or 19 February 2024, a singular instance of timber present on the Southern Slab of no more than a day’s duration does not rise to the level of contempt.

189. In summary, therefore, I find that the breach of order 6 during the first time period, but not the second, amounted to contempt.

Conclusion and Orders

Charge 1

190. The proper construction of orders 4(a) and 5 required the demolition of the whole of the horizontal span of the Northern Slab and the dispensation only extended to that part of the retaining wall that was adjacent to the horizontal concrete slab above the MHWM. The BIC was not issued for the entirety of the wall and did not extend to any part of the concrete slab.

191. The elements of charge 1 have been established beyond reasonable doubt. Elgammal is therefore guilty as charged.

Charge 3

192. In respect of charge 3, I have found that the elements of that charge have also been proven beyond reasonable doubt. Elgammal is therefore convicted of charge 3.

Costs

193. Both parties sought to be heard on the question of costs, especially given that, according to the Saders, Elgammal purportedly changed his case from denying that he had failed to demolish the Slabs to a case where he pleaded guilty to the charge with respect to his failure to demolish the Southern Slab. It is therefore appropriate that costs are reserved.

Orders

194. The orders of the Court are as follows:

(1) Elgammal is guilty of contempt as charged in charge 1 of the amended statement of charge in that he failed to demolish or failed to fully demolish the Northern Slab in accordance with order 4(a) of the orders dated 30 September 2022, by 30 March 2023;

(2) Elgammal is guilty of contempt as charged in charge 3 of the amended statement of charge in that building and construction materials were placed on the Northern Slab and the Southern Slab by him, or on his behalf, contrary to order 6 of the orders dated 30 September 2023, between approximately 31 March and 11 April 2023;

(3) the proceedings are listed for directions before the List Judge on 27 June 2025, for the purpose of sentencing in respect of charges 1, 2, 3 and 4; and

(4) costs are reserved.

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Amendments

19 June 2025

The following paragraphs have been amended pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule) on 19 June 2025: (a) at [177], the words “order 3” are replaced with “order 6”; and (b) at [194], the words “and between 18 to 20 February 2024” in order (2) are deleted.