Fairfield City Council v Camilleri [2020] NSWLEC 43

Land and Environment Court New South Wales

Medium Neutral Citation: Fairfield City Council v Camilleri [2020] NSWLEC 43 Hearing dates: 3-5 April 2020 (written submissions) Date of orders: 01 May 2020 Decision date: 01 May 2020 Jurisdiction: Class 4 Before: Pain J Decision: (1) The Council's amended notice of motion dated 27 September 2020 in proceedings 16/203179 and 16/203222 is dismissed.

(2) The Council must pay the Respondent's costs of these proceedings. Catchwords: COSTS – contempt proceedings – no basis for claim of indemnity costs by local council after finalisation of sequestration orders Legislation Cited: Fairfield Local Environmental Plan 2013 Cases Cited: Blacktown City Council v Nitopi [2019] NSWLEC 40 EMI Records Ltd v Ian Wallace Ltd [1983] Ch 59; [1982] 2 All ER 980 Gerondal v Eurobodalla Shire Council (No 6) [2011] NSWLEC 132 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Rosniak v Government Insurance Officer (1997) 41 NSWLR 608 Tate v Duncan-Strelec [2020] NSWSC 52 Category: Costs Parties: Fairfield City Council (Applicant) Saviour Camilleri (Respondent) Representation: COUNSEL: H Grace (Applicant) C Bolger (Respondent)

SOLICITORS: Ritchie & Castellan (Applicant) John Fasha Solicitors (Respondent) File Number(s): 16/203222, 16/203179

Judgment 1. In two Class 4 civil enforcement proceedings commenced in July 2016 by Fairfield City Council (Council) orders were sought that Mr Camilleri (the Respondent) cease using two premises in Horsley Park, one at 223-235 Burley Road (matter number 2016/203222) and the other at 224-234 Delaware Road (matter number 2016/203179) (Properties) for the purpose of a waste or resource management facility as defined in the Fairfield Local Environmental Plan 2013, and remove all waste from the Properties. Since that time, the Respondent has been convicted of contempt for failing to comply with court orders and two writs of sequestration of the Respondent's proprietary interest in the Properties have been discharged. 2. The Council filed an amended notice of motion on 27 September 2019 seeking inter alia final orders in respect of the writs of sequestration and costs in both proceedings. Only order 5 is now pressed, being an order that the Respondent pay the Council's costs incurred after 5 July 2019 to date on an indemnity basis. The parties asked the Court to determine the matter on the papers on 30 March 2020. Orders for the filing of affidavits and written submissions to that end were made. 3. A brief chronology of the proceedings to date compiled from the parties' affidavits and the Court file is as follows: Date Event 5 July 2016 Council filed two summonses commencing Class 4 proceedings. 7 October 2016 Consent orders made including that Respondent clear all waste at Properties within six months (by 7 April 2017). 4 October 2017 Two charges of contempt laid against Respondent for failure to comply with 7 October 2016 orders. 1 December 2017 Order for mediation. 9 March 2018 Mediation. 10 May 2018 Mediation terminated. 4 October 2018 Respondent entered two guilty pleas. Council sought punishment for contempt, orders for costs, and orders for sequestration of Respondent's proprietary interest to fund clean-up. 22 November 2018 Sentencing hearing commenced before Sheahan J. 29 November 2018 Respondent gave an undertaking to remove all waste from Properties by 11 January 2019. 13 March 2019 Consent orders for Bassett Demolitions to remove all waste from Delaware Road property and for Respondent to be restrained from carrying out any work to remove any materials or waste from that property for one month, commencing 2 April 2019. 2 April 2019 Respondent applied to extend time from which second order made on 13 March 2019 would commence. Court extended time for commencement by one week. 25 June 2019 Sentencing hearing concluded. 5 July 2019 Sheahan J convicted Respondent of contempt of Court as charged on 4 October 2017 and ordered Respondent to pay a fine of $12,500 in each case. Respondent also ordered to pay Council's costs of both proceedings, as agreed or assessed, with all those incurred by Council on or since 29 November 2018 on an indemnity basis. Orders were also made for issue of writs of sequestration in each matter. 8 July 2019 Writ of sequestration issued in both matters. 29 July 2019 Sequestrators' notice of motion filed seeking orders for conduct of sequestration and payment of Respondent's costs and living expenses and sequestrators' costs. 2 August 2019 Orders sought in sequestrators' motion of 29 July 2019 made by consent inter alia. 12 September 2019 Notice of motion filed by Council. 27 September 2019 Amended notice of motion filed by Council to correct omission of matter number 2016/203222 from notice of motion filed 12 September 2019. 11 October 2019 Orders made by consent that both writs of sequestration issued on 8 July 2019 be discharged. 20 December 2019 Council indicated in Court that it no longer pressed orders 1, 3, 4 and 6 of amended notice of motion filed on 27 September 2019 and the only issue to be determined at the hearing is order 5 (order 2 had been dealt with by orders made on 27 September 2019 and 11 October 2019 discharging the writs of sequestration). Hearing set down for 6 April 2020. 30 March 2020, 3-5 April 2020 Order made at parties' request that costs determination proceed on the papers. Parties filed affidavits, submissions and submissions in reply addressing order 5.