Procedure – contempt, attachment and sequestration
– what constitutes contempt – disobedience of orders of
Court – other cases – where an enforcement order was
made by consent – where the enforcement order required the
respondents to take action regarding their property – where
action not taken – whether respondents in contempt
Facts: This was an application by the Bundaberg
Regional Council for an order committing the respondents for
The respondents had a business relocating and demolishing homes.
In 2008 or early 2009 they relocated two historical buildings onto
land situated at Bonna Road, Bundaberg.
The relocation of the buildings was authorised by a development
approval granted on 31 March 2008 which subsequently lapsed.
Council brought proceedings for an enforcement order against both
respondents on the basis that a development offence was being
committed. On 27 November 2013, an enforcement order was made by
The order required the respondents to demolish the building
works associated with the relocated buildings or to obtain a
development permit and complete the works.
Council alleged that the respondents had failed to comply with
the order. The respondents did not contest that they had failed to
comply with the order but gave evidence about difficulties and
delays they had experienced in trying to obtain a development
Council initially sought a six week wholly suspended prison
sentence for each respondent. It also sought further orders
requiring future compliance with the steps set out in the November
2013 order within extended time periods. However, Council
subsequently conceded that Mrs Lammi was not in a position to
ensure compliance with the order.
The Court considered whether any new enforcement orders should
replace, modify or stand alongside the November 2013 enforcement
Decision: The Court held:
It was apparent beyond reasonable doubt that the respondents
had contravened the enforcement order made on 27 November
If a further enforcement order was to be made, it should either
be in variation of, or substitution for, the order made on 27
November 2013. As there was no longer any interest in enforcement
of the November order in its terms, there was no point in it
The court had power to vary the order previously made in
November 2013. Such a course was consistent with what was sought by
both parties; an extension of timeframes within which to take the
steps necessary for the completion of the work.
This was not a case in which the contempt of the respondents
was such as to make sentencing them to any term of imprisonment
appropriate. In the case of Mrs Lammi, it would be entirely
inappropriate that she be sentenced to imprisonment for failing to
do what she could not do.
In imposing a remedy for contempt what was required was that it
be effective, no more, but no less. A fine of $5,000 was
appropriate in the circumstances.
It was appropriate that the Council should have its costs on
the standard basis.
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