TYNAN v MEHARG [1999] NSWCA 157 | Case summary

TYNAN & ORS v MEHARG & ANOR 1 THE COURT: The court today makes orders in proceedings brought by the claimant Mr Meharg against the opponents Messrs H.A. J.J. and M.J. Tynan seeking orders that the opponents be found guilty of contempt of court and that they be dealt with according to law, for disobedience of a court order to remove a house at Black Hill in the local government area of the Newcastle City Council. 2 On earlier occasions the court found that the Tynans were guilty of contempt of court, but deferred the making of formal orders and the decision upon appropriate penalty until the court order had been complied with by removal of the house. 3 In reasons published on 24 February 1999, when interim orders were made relating to the final disposition of the proceedings, all matters up to that day relevant to the contempt were set out. The present reasons take up the story from 24 February 1999. 4 The interim orders made on that day required the filing of a further affidavit or further affidavits in which a person or persons with first hand knowledge of the facts concerning the removal of the house stated the facts concerning its removal. 5 In an affidavit made by Mr N.D. Fraser filed on 3 March 1999, he said that as at Wednesday, 24 February 1999 a company of which he was a director, Doug Fraser Pty Limited, had removed the upper section of the house and completed all demolition work except for the breaking up of the slab and footings under it. Further work had been suspended because of rainy weather. He said that but for the bad weather all work would have been completed and the site cleared of material by 1 March 1999. He expressed the opinion that five consecutive sunny days were needed to make the land sufficiently dry for the work to be recommenced and he estimated that it would take three days from commencement to break up the slab and footings and remove the materials from the site. 6 Mr W.R. Henderson, a civil engineer retained by Mr Meharg said in an affidavit sworn 4 March 1999 and filed 8 March 1999 that on 3 March he went to a point close to the dividing fence between Mr Meharg's land and the Tynan's land and noted that a concrete slab was in existence there. He also noticed an excavator on the land near the slab which in his opinion was capable of breaking up the slab and removing the foundation. He also said he had read Mr Fraser's affidavit and that it was possible that the Tynan's land was too wet to allow a fully laden truck to traverse it to remove the building debris from it. 7 Mr Henderson added that he saw no reason why the slab could not in the meantime be broken up and the foundations removed. He also said that when looking at the slab from the boundary he had with him a probe which he wished to use to establish whether there were any underground structures that might be in existence. However he was not allowed upon the Tynan's land so could not use the probe to see whether there were any other structures that might require removal. So far as the court is aware there has been no evidence in these proceedings suggesting the possibility of underground structures beneath the slab. Mr Henderson seems to be the first person to have mentioned it. 8 The material part of Mr Henderson's affidavit was thus largely corroborative of what was said in Mr Fraser's affidavit. 9 There were then filed a group of affidavits about which we need say nothing more than that they show that although the solicitors for the parties were still writing civilly to one another, relationships on the ground between the Tynan side and the Meharg side were being conducted at a strictly arms length level. The details have no relevance to the court's present task which is to ascertain the facts about compliance with the removal order and to decide upon appropriate orders to deal with the contempt of court continuing since 1 December 1998. 10 The last affidavit useful to the court on those issues was sworn by Paul Whitton on 10 March 1999, filed the following day, in which he said he was employed as a plant operator by Daracon Engineering Pty Limited, that this company had been engaged to remove the concrete slab, that Doug Fraser Pty Limited had only been able partially to break up the slab, that Daracon Engineering Pty Limited was engaged to complete the work because it had the necessary machinery, that by the afternoon of 6 March 1999 the remainder of the slab and all footings under it were broken up, all materials were removed from the site, and no part of the slab or the footings remained under the surface. Mr Whitton annexed to his affidavit a number of photographs which supported his statement that the house had been completely removed. 11 We proceed therefore on the footing that the order of the court which was to have been complied with no later than 30 November 1998 had been fully complied with by 6 March 1999. 12 It now remains for the court to decide upon penalty and to make its formal declaration and orders. 13 As we mentioned in our earlier reasons, the three Tynan brothers are all guilty of contempt, but the one who needs to be particularly mentioned when considering penalty is Mr Jason Tynan. For practical purposes, he acted on behalf of his two brothers in matters connected with the house and the parcel of land on which it stood. 14 By the time the removal order had to be complied with, Mr J. Tynan and his wife were living in the house with their three children. Photographs in evidence show the house as pleasant looking and in a pleasant position. For it to be completely removed was going to be a very costly matter for his brothers and particularly himself and his family and obviously very disruptive for his family and himself. 15 Before the date for compliance with the removal order, Mr J. Tynan engaged the help of Mr McNaughton, whose part in events was described in earlier reasons. Mr McNaughton took various steps which if successful may have made compliance with the order less onerous than its terms otherwise required. These efforts of Mr McNaughton were unsuccessful and we think most people would have foreseen that they would be unsuccessful; we can also understand that Mr J. Tynan was pinning his hopes to them. Details of these steps were given in our earlier reasons. It was not until 8 February 1999 that Mr McNaughton realised that despite his efforts the order must be complied with and instructions were given on the Tynans' behalf to make a start on the removal of the building. Even at that stage, the instructions, which were formulated by Mr McNaughton, would, if carried out, not have achieved full compliance with the order. 16 A start however was made, but work was interrupted by bad weather, shortly after 8 February 1999. There was then a hearing on 15 February 1999 in which the court made it plain that the order as it stood must be fully complied with. There then occurred the events already narrated ending in the complete compliance with the order on 6 March 1999. 17 In an affidavit sworn 29 January 1999 Mr J. Tynan said: "I sincerely apologise to the Court for any offence my conduct may have caused in trying to comply with the Court's orders and doing my best to preserve my family home. It was never my intention to disregard the Court's orders or in any way be disrespectful to the Court. The Claimant, Mr Meharg, has no residence on his land and the continued use by my family of the house causes no interference with Mr Meharg's property. I have, with advice, tried to do everything reasonable in my power to comply with the court's orders in a way which preserve as much of our family home as possible and in a way which would be the most inexpensive." His two brothers jointly made a separate affidavit of apology, in fully appropriate terms. 18 At the time the affidavit was sworn, the Tynans, in optimistic reliance on Mr McNaughton's operations, were still hopeful of obtaining Council consent by 1 or 2 February 1999 which would have enabled them, as they thought, to comply with the removal order in a less onerous way than would be the case if they did not obtain the consent. Mr J. Tynan ended his affidavit sworn 29 January 1999 by saying if the Council consent was not obtained by 1 or 2 February following, he had instructed demolition to commence immediately. 19 The paragraph of the affidavit in which he made his apology to the court both expresses the necessary apology and indirectly refers to hardship flowing from the removal order, which Mr J. Tynan was hoping to lessen. Despite the partly equivocal nature of this apology, the court accepts it, noting that the other feelings which come through the paragraph, although they have no legal justification, are very understandable. It seems to the court, that although a late start was made towards compliance with the court's order, for which there is no legal excuse, from about mid February reasonably expeditious steps were taken to comply with it. 20 The loss of Mr J. Tynan's family home is the result of a lawful court order, against which an appeal was brought, which was dismissed, but which made it necessary to extend the date for compliance. No further appeal process was attempted. As a lawful standing court order the ordinary operation of legal process means that it must be complied with. This means that Mr J. Tynan can have no basis in law for complaining about the removal of the house. Nevertheless, compliance with the court order has meant a very significant loss both economically and in human terms. We think it appropriate to take that into account in deciding upon appropriate orders to deal with the contempt of the three Tynan brothers. 21 The eventual delay in compliance with the order was three months and six days. Part of that delay was caused by reliance on what turned out to be the misguided hope that Mr McNaughton might achieve something better for the Tynan brothers than literal compliance with the order would bring. A further part of the delay was caused by bad weather. 22 In the circumstances we are of the view that the need to uphold and where necessary enforce due compliance with lawful orders of the court will in this case be appropriately vindicated by making a declaration that contempt of court was committed and by ordering the Tynans to pay Mr Meharg's costs of the contempt proceedings on an indemnity basis, but not imposing any further penalty. 23 Accordingly the court makes order 1 as sought in Mr Meharg's notice of motion dated and filed 3 December 1998, orders the Tynans to pay Mr Meharg's costs on an indemnity basis of the notices of motion of 3 December 1998 and 9 February 1999, and makes no order as to the costs of the Council.

TYNAN v MEHARG

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Judgment (9 paragraphs)

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