Auburn City Council v Zhu (No 3) [2012] NSWLEC 151

Land and Environment Court New South Wales

Medium Neutral Citation: Auburn City Council v Zhu (No 3) [2012] NSWLEC 151 Hearing dates: 5 July 2012 Decision date: 05 July 2012 Jurisdiction: Class 4 Before: Pepper J Decision: The council's notice of motion filed 24 November 2011 is adjourned for hearing to a date not before 4 October 2012. Costs reserved. Catchwords: CONTEMPT - motion for contempt for non-compliance with orders to carry out works in civil enforcement proceedings - respondent partly completed the works but further time needed to affect total compliance due to respondent's impecuniosity - notice of motion adjourned to permit respondent to wholly purge the contempt. Cases Cited: Auburn City Council v Zhu (No 2) [2012] NSWLEC 147 Category: Procedural and other rulings Parties: Auburn City Council (Applicant) Ling Ling Zhu (Respondent) Representation: Mr Ian Woodward (Solicitor) (Applicant) Ms L Zhu (in person) (Respondent) Storey & Gough Lawyers (Applicant) N/A (Respondent) File Number(s): 40990 of 2009

EX TEMPORE Judgment 1This is an application to adjourn a notice of motion brought by Auburn City Council ("the council") against Ms Ling Ling Zhu, the respondent, for a declaration that she is in contempt of consent orders made by this Court on 30 April 2010 ("the 2010 orders") and that she be punished accordingly. 2The background to this judgment is set out in the decision of Auburn City Council v Zhu (No 2) [2012] NSWLEC 147. 3When the matter resumed before me today, Ms Zhu was no longer represented by her previous solicitor Mr Edwin Kwan, Mr Kwan having filed a notice of ceasing to act. Mr Kwan, who appeared as a matter of courtesy to the Court, informed the Court that his instructions had been withdrawn by Ms Zhu. Mr Kwan explained to the Court that Ms Zhu had not complied with order 2 made on the last occasion, namely, that she file and serve any evidence upon which she sought to rely in support of any application to adjourn the notice of motion, for financial reasons. 4At short notice, a Cantonese interpreter was made available to assist Ms Zhu, now an unrepresented litigant. Accordingly, Ms Zhu was able to give evidence on oath as to the reasons why she was seeking a further adjournment of the notice of motion in order to permit her to purge the contempt. 5Ms Zhu told the Court that, while she had commenced demolition of the unlawful second dwelling constructed on her property and that partial compliance with the remainder of the 2010 orders had occurred, she was unable to complete compliance with those orders because of her impoverished financial situation. In short, Ms Zhu is a single mother with three children, the oldest aged 13 and the youngest aged 8, who is unemployed. The unlawful development the subject of the contempt proceedings constitutes works that had been carried out by her former husband who had engaged a builder to carry out the construction on the property. Ms Zhu is now divorced. 6The Court has no hesitation in accepting the veracity of Ms Zhu's account, which, as the Court observed, was distressing for her to recount. 7Under cross-examination from Mr Ian Woodward, the solicitor for the council, Ms Zhu indicated that she understood that full compliance of the 2010 orders was necessary. To the extent that this questioning revealed residual confusion as to what was required to comply with order 1(e) (the removal of the unauthorised addition attached to the rear of the original dwelling together with the attached terrace), the parties agreed that further discussion would take place between themselves, assisted by someone who could aid Ms Zhu with interpretation, in order to clarify the ambit of this order. In this regard, the Court emphasised to Ms Zhu that full compliance with the 2010 orders was necessary in order to properly purge the contempt. 8Finally, Ms Zhu indicated that a three month adjournment would be adequate time in which to complete the works. 9On the basis of the evidence given by Ms Zhu under oath, and in light of the council's continuing instructions that, if compliance with the 2010 orders is effected, and subject to costs, it would not press the notice of motion for contempt, and moreover, that it did not oppose the adjournment sought by Ms Zhu, it is an appropriate exercise of the Court's discretion to grant Ms Zhu a further period of time in which to comply with the 2010 orders. I therefore propose to grant the adjournment.