Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 3) [2013] NSWLEC 35

Land and Environment Court New South Wales

Medium Neutral Citation: Waverley Council v Tovir Investments Pty Ltd & Rappaport (No 3) [2013] NSWLEC 35 Hearing dates: 18-28/2/13, 1/3/13, 4/3/13 Decision date: 27 March 2013 Jurisdiction: Class 4 Before: Biscoe J Decision: The respondents are adjudged guilty of contempt of court as charged and are to pay the applicant's costs. Catchwords: CONTEMPT - civil contempt - charges of failing to obey consent orders restraining respondents from causing or permitting the use of certain premises for the purpose of backpackers accommodation as defined in the Waverley Local Environmental Plan 1996 - construction of the definitions of "backpackers accommodation" and "temporary accommodation" - consideration of evidence and proof in contempt cases and the distinction between civil and criminal contempt - consideration of the nature and proof of circumstantial evidence - whether buildings were used for the purpose of providing backpackers accommodation as defined - if so, whether the corporate first respondent caused and permitted that use and the second respondent caused it -meaning of "causing" and "permitting" - consideration of attribution of conduct of a person to a corporation in a civil contempt case. Legislation Cited: Corporations Act 2001 (Cth) s 9(b)(i),(ii) Evidence Act 1995 s 144(1)(a) Land and Environment Court Rules 2007, r 6.3 Supreme Court Rules 2005 Pt 55 r 13 Waverley Local Environmental Plan 1996 Part 5 Schedule 2 Cases Cited: Adelaide City Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 Athens v Randwick City Council [2005] NSWCA 317, 64 NSWLR 58 Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46,161 CLR 98 Australian Securities & Investments Commission v Adler [2002] NSWSC 171, 41 ACSR 72 Australian Securities and Investments Commission v Sigalla (No 4) [2011] NSWSC 62, 80 NSWLR 113 Azzopardi v The Queen [2001] HCA 25, 205 CLR 50 Blacktown City Council v Pace [2002] NSWLEC 142, 121 LGERA 432 Broad v Parish (1941) 64 CLR 588 Burns v Lipman [1975] HCA 2, 132 CLR 157 Davidson v The Queen [2009] NSWCCA 150, 75 NSWLR 150 Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232, 172 LGERA 225 Director General of Fair Trading v Pioneer Concrete (UK) Ltd [1995] 1 AC 456 (HL) Doyle v The Commonwealth [1985] HCA 46, 156 CLR 510