The developers who illegally demolished the Corkman Irish Pub must serve 30 days in jail for thumbing their nose at authorities, after Victoria’s highest court dismissed their latest legal challenge.
Almost five years since Stefce Kutlesovski and Raman Shaqiri bulldozed the 159-year hotel in Carlton without a permit, the Court of Appeal on Thursday refused the pair’s challenge against a month-long prison sentence and a $150,000 fine for their company, 160 Leicester Pty Ltd.
The remains of the Corkman Irish Pub in Carlton after its demolition in 2016.Credit:Eddie Jim
Kutlesovski and Shaqiri knocked down the hotel on October 15, 2016 and over the following years flouted court orders by refusing to have the site cleared of debris – including asbestos – and show evidence it was environmentally safe.
Planning Minister Richard Wynne and the City of Melbourne last year successfully brought contempt of court proceedings against the developers in the Victorian Civil and Administrative Tribunal, and in a rare move for planning breaches, tribunal president Michelle Quigley – also a Supreme Court judge – ordered the men serve 30 days in prison.
Shaqiri and Kutlesovski fought that ruling – and the fine against their company – at the Court of Appeal by arguing the penalties were manifestly excessive and didn’t correctly assess the contempt conduct. The pair’s lawyers argued they spent $1.6 million developing the site into a park and were sorry for their conduct.
However, the Court of Appeal on Thursday found there was no substance to the men’s appeal, that the penalties imposed by VCAT were appropriate and that the developers would have regarded a monetary fine as “the cost of doing business”.
Raman Shaqiri outside court after a hearing in 2018.Credit:Joe Armao
“The contempts committed by the company and the directors were deliberate, wilful, flagrant and blatant,” appeals judges Phillip Priest, David Beach and Stephen Kaye wrote in their findings.
“In the exceptional circumstances of this case, terms of imprisonment were called for, for the directors, and a substantial monetary penalty was called for, for the company. The new evidence tendered by the company and the directors does not change any of this.”
Kutlesovski told The Age he was weighing up his options but declined to comment further. Shaqiri did not respond to calls.
It is expected they will go into custody on Friday unless they launch a last-ditch appeal to the High Court.
Stefce Kutlesovski leaves court after a hearing in 2017.Credit:Clay Lucas
However, they could spend as little as a fortnight in jail, if prison authorities rule they are eligible for “emergency management days”, a measure which gives some inmates a sentence reduction if confined to a cell for 24 hours a day. The measure was introduced to help prisons manage their response to the COVID-19 pandemic.
The Court of Appeal found Kutlesovski and Shaqiri’s refusal to abide by previous court orders was a commercial decision, made after weighing up the costs of compliance against potential penalties. The Corkman’s demolition was intended for a significant profit through the development of a 12-storey building.
Justice Quigley in December found the developers had shown arrogance and a lack of respect to the tribunal and to the proper administration of justice, for failing to clear the site and show that it was environmentally safe before a November 2019 deadline.
On top of the penalties, she also ordered Kutlesovski and Shaqiri pay $250,000 in legal costs for the City of Melbourne and Mr Wynne’s office.
The former Corkman site in Carlton, which is now a public park.Credit:Joe Armao
The VCAT penalties were in addition to the $1.1 million in fines imposed on the developers for the illegal demolition, after they were prosecuted by the Melbourne City Council, the EPA and the Victorian Building Authority.
The park where the Corkman once stood, at the corner of Leicester and Pelham streets, was finished last month but is likely to be temporary, pending a future development of the site.
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