TYNAN v MEHARG & NEWCASTLE CITY COUNCIL [1998] NSWCA 241

TYNAN v MEHARG & NEWCASTLE CITY COUNCIL SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, HANDLEY JA and STEIN JA 21 December 1998

[1998] NSWCA 241

Priestley JA. The court has come to the conclusion that the materials before it clearly establish, and establish beyond reasonable doubt, that the opponents are guilty of wilful contempt and in due course the court will make a declaration accordingly. That declaration will not be made in a formal sense today.

The formal orders and declarations will be made at the same time as the court announces its decision on what the appropriate orders should be to ensure the enforcement of the court's order and the dealing with the wilful contempt that it is opinion has taken place.

In order to determine what are the appropriate orders to be made in addition to the findings concerning wilful contempt the court proposes toadjourn the proceedings until 15 February 1999 at 9.30 am. At that time the court will consider whatever evidence has been put before the court in addition to what is presently before it. That further evidence will relate to the appropriate orders to be made by way of penalty or other appropriate order to deal with the situation.

So far as the claimant's side of the proceedings is concerned, there has been reference in correspondence and in court to the availability of Pt 42 r 9, a source of power pursuant to which the court upon proper application can order the doing of actions, such as the demolition of the building in this case by some person other than the person in contempt. If the claimant has any intention to apply for an order under Pt 42 r 9 then all relevant materials should be before the court on the next occasion.

On the part of the opponents, there has been reference today to a development application, which we were told today was intended originally to be filed today. In view of the way time has been taken up by the proceedings the court does not imagine that that development application will have been lodged by the end of today but has been proceeding on the basis that it will be filed and will be filed this week.