Auburn City Council v Zhu [2012] NSWLEC 88

Land and Environment Court New South Wales

Medium Neutral Citation: Auburn City Council v Zhu [2012] NSWLEC 88 Decision date: 26 April 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) The Council's notice of motion filed on 24 November 2011 is adjourned to a date not earlier than 28 June 2012. (2) The parties are to proceed forthwith to the Registry to obtain a date for the adjourned hearing not earlier than 28 June 2012. Catchwords: CONTEMPT: motion for contempt for non-compliance with orders to carry out works in civil enforcement proceedings - respondent partly completed the works and intended to complete the remainder within two months. Category: Procedural and other rulings Parties: Auburn City Council (Applicant) Ling Ling Zhu (Respondent) Representation: COUNSEL: Mr I Woodward, solicitor (Applicant) Mr E Kwan, solicitor (Respondent) SOLICITORS: Storey & Gough (Applicant) Pancific Legal (Respondent) File Number(s): 40990 of 2009

EX TEMPORE Judgment 1This is a motion by Auburn City Council, the applicant, against Ms Ling Ling Zhu, the respondent, for a declaration that she is in contempt of consent orders of this Court made on 30 April 2010, that she be punished for the contempt by a fine, and for costs. 2Upon the matter being called on for hearing this morning, the Council made it clear that its main objective is not to punish the respondent for contempt but to achieve compliance with the orders of 30 April 2010. It appears to be common ground that the respondent has only partly complied with or has not complied with Orders 1(b), (c) and (e), which are in the following terms: 1. The Respondent shall within 28 days carry out the following works at 23 London Road, Berala, being Lot 9 in Deposited Plan 21735 ("the Property"): ... (b) demolish the second dwelling, including the slab, which has been constructed in the rear yard of the Property; (c) remove such part/s of the concrete hardstand areas on the Property so that the maximum Site Coverage is 60%. Site coverage defined as that area of a site containing any built structure (whether covered or uncovered), any building, carport, terrace, pergola, driveway parking area, and pathways or any like structure, but excluding swimming pools - water area only and not coping, decking etc; ... (e) Remove the unauthorised addition that is attached to the rear of the original dwelling, together with the attached terrace. 3The respondent applies for an adjournment of the contempt motion for about two months to enable her to comply fully with the orders of 30 April 2010. That period of time is required not only to carry out the works which those orders require but to raise the necessary finance for the works. 4The respondent's legal representative has apologised on her behalf and explained that she is a divorced mother with three children and that the unlawful works which led to the 2010 orders were carried out by her ex-husband. He has also explained, not by way of justification for non-compliance with the orders but by way of providing a context, that this has been an emotional and stressful event and time in her life. 5The Council does not oppose the adjournment sought on the basis that the respondent proposes to comply with the orders. The Council indicates that if the works required by the orders are carried out, it does not anticipate pressing the notice of motion for contempt except perhaps in relation to costs. The Council's position is influenced by its primary purpose in bringing the contempt proceedings, which is to achieve compliance with the 2010 orders rather than to punish the respondent. 6In the circumstances, I propose to grant the adjournment. 7The orders of the Court are as follows: (1)The Council's notice of motion filed on 24 November 2011 is adjourned to a date not earlier than 28 June 2012. (2)The parties are to proceed forthwith to the Registry to obtain a date for the adjourned hearing not earlier than 28 June 2012. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2012