Kessly v Hasapaki [2015] NSWCA 316

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kessly v Hasapaki [2015] NSWCA 316 Hearing dates: 24 September 2015 Decision date: 09 October 2015 Before: Basten JA at [1]; Macfarlan JA at [34]; Sackville AJA at [35] Decision: (1) Allow the appeal and set aside orders 2, 7, 8 and 9 made in the Land and Environment Court on 29 October 2014 and entered on 15 May 2015. (2) Order that the appellant pay the respondent's costs of preparing and registering the transfer granting an easement. (3) Direct that those costs may be set off against the payment for the easement required to be paid by the respondent under the 2004 consent orders. (4) Make no order as to the costs of the contempt motion in the Land and Environment Court. (5) Make no order as to the costs of the proceedings in this Court. Catchwords: CONTEMPT OF COURT – non-compliance with Land and Environment Court order to grant easement – contemnor application for adjournment for medical reasons refused – whether denial of procedural fairness

CONTEMPT OF COURT – non-compliance with Land and Environment Court order to grant easement – contemnor represented but absent – indication by trial judge that practical orders leading to execution of easement preferred to contempt findings – finding of contempt made – whether denial of procedural fairness Legislation Cited: Civil Procedure Act 2005 (NSW), s 94 Land and Environment Court Act 1979 (NSW), s 57 Category: Principal judgment Parties: Evangelina Kessly (also known as Grustein) (Appellant) Katina Hasapaki (Respondent) Representation: Counsel: Mr P R Glissan (Appellant) Mr R C Gration (Respondent)