Sydney City Council v Li (No 2) [2012] NSWLEC 123

Land and Environment Court New South Wales

Medium Neutral Citation: Sydney City Council v Li (No 2) [2012] NSWLEC 123 Hearing dates: 26 April 2012 Decision date: 26 April 2012 Jurisdiction: Class 4 Before: Preston CJ Decision: Orders as set out at [40] Catchwords: CONTEMPT - court orders to carry out outstanding works in a fire safety order by specified date - works not carried out by that date - contempt of court by failure to comply with court orders - modified fire safety order issued requiring alternative works by new date - alternative works carried out by new date - appropriate punishment for contempt is finding of guilt - costs of contempt proceedings - contemnors to pay council's costs Legislation Cited: Uniform Civil Procedure Rules 2005 Pt 36 r 36.15(2) Cases Cited: Sydney City Council v Li [2011] NSWLEC 165 Category: Consequential orders Parties: Sydney City Council (Applicant) Mr Carlos Alberto Li (First Respondent) Mrs Yi Hong Chen Li (Second Respondent) Representation: Mr A Hawkes (Solicitor) (Applicant) No appearance for Respondents Sydney City Council, Legal Department (Applicant) File Number(s): 40312 of 2011

Judgment

Contempt proceedings proceed in the absence of the contemnors 1Mr and Mrs Li are charged with contempt of court for failing to comply with the orders I made, on 24 August 2011, that they undertake and complete within 16 weeks of the court orders certain outstanding works specified in a fire safety order dated 15 December 2009 issued by Sydney City Council to Mr and Mrs Li at their premises at 193 Regent Street, Redfern, New South Wales. 2I found that Mr and Mrs Li had failed to comply with all the requirements of the fire safety order, and that there was an unacceptable fire safety risk unless the outstanding requirements of the fire safety order were undertaken and completed. I ordered the outstanding works to be completed within 16 weeks from the date of the court order on 24 August 2011: see Sydney City Council v Li [2011] NSWLEC 165. 3The proceedings for contempt have been fixed for hearing today. Unfortunately, Mr and Mrs Li have not attended the hearing. 4I am satisfied on the evidence that Mr and Mrs Li have been properly served with the original court orders (which contained the appropriate warning of liability for contempt), the notice of motion and statements of charge for contempt, and the supporting affidavit evidence of a building surveyor with the Council, Mr Moujalli. Mrs Li personally attended the court directions hearing on 17 February 2012 when the Assistant Registrar fixed the contempt proceedings for hearing today, 26 April 2012. 5Mr Moujalli also gave oral evidence that he attended the premises at 193 Regent Street on Tuesday, 24 April 2012, and asked Mrs Li whether she intended coming to the Court for the hearing of the contempt proceedings. Mrs Li first said she was unsure, but then later said "no". Mr and Mrs Li's agent, Mr Aspres, was also in attendance on this occasion and he said that there was no need for Mr and Mrs Li, or himself, to attend the hearing because the outstanding works had been completed. 6At 4.14pm on 24 August 2012, the Council's solicitor, Mr Hawkes, emailed Mr Aspres urging Mrs Li to attend court on Thursday so that she could express her apologies and contrition to the Court for the contempt. Mr Hawkes also said that the Council was satisfied that the outstanding works had been completed and that as a result the contempt had been purged. Mr Hawkes said the Council would not be urging that a fine be imposed but would be seeking its legal costs in the sum of $3,600, as per an enclosed schedule. 7Mr Aspres subsequently telephoned Mr Moujalli at 5.15pm on 24 August 2012 and repeated that he did not consider it necessary to attend the Court at the hearing of the contempt proceedings because the works had been completed. 8As they had indicated would be the case, Mr and Mrs Li, and Mr Aspres, did not attend the hearing of the contempt proceedings today. 9I considered that it was appropriate to continue the hearing of the contempt proceedings in their absence.