Anderson v Hassett [2007] NSWSC 1310 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
9 & 16 November 2007
JUDGMENT DATE :
19 November 2007
JURISDICTION:
Equity Division Expedition List
JUDGMENT OF:
Brereton J
DECISION:
Application dealt with pursuant to UCPR r 40.7(4) notwithstanding that order with notice to party bound endorsed had not been served personally. Further service of motion dispensed with. Held, it is not necessary to establish that any failure to comply with an order was accompanied by a specific intention to disobey the court’s order; failure to comply is contempt unless it is casual, accidental or unintentional. Defendant adjudged guilty of contempt.
CATCHWORDS:
CONTEMPT – Civil contempt – failure to comply with order of court for production of documents – where defendant present in court when order made – personal service of order with notice to party bound endorsed dispensed with – where contempt motion served on defendant’s receptionist – where no objection to sufficiency of service – personal service of motion dispensed with – whether plaintiff must prove specific intent to disobey order of court – whether breaches established – whether no more than casual, accidental or unintentional
LEGISLATION CITED:
(NSW) Civil Procedure Act, s 14 (NSW) Supreme Court Rules, Pt 55 r 9 (NSW) Uniform Civil Procedure Rules 2005, r 40.7(1), (3), (4)
Thomas James Anderson (plaintiff) James Trevor Hassett (defendant)
FILE NUMBER(S):
SC 1331/06
COUNSEL:
G A Rich (plaintiff) M R Lawson (defendant)
SOLICITORS:
Malcolm McDonald & Co (plaintiff) Hassetts Solicitors (defendant)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST
BRERETON J
Monday, 19 November 2007
1331/06 Thomas James Anderson v James Trevor Hassett
JUDGMENT
1 HIS HONOUR: The defendant James Trevor Hassett, a solicitor, is the executor of the estate of the late Thomas Walter Malcolm Anderson, who died on 5 January 1983 leaving a Will dated 4 May 1982 probate of which was granted to…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Anderson v Hassett [2007] NSWSC 1310
Case
[2007] NSWSC 1310
Decision Date
CaseChat Overview and Summary
In the case of Anderson v Hassett, the plaintiff sought to enforce a court order compelling the defendant to produce certain documents. The defendant, who was present in court when the order was made, failed to comply, leading to the plaintiff filing a motion for contempt. The primary legal issues before the court were whether the plaintiff had to prove a specific intent to disobey the court order, whether the breaches alleged by the plaintiff had been established, and whether any breaches were no more than casual, accidental or unintentional.
The court found that the plaintiff was not required to prove a specific intent to disobey the court order. The court held that the mere failure to comply with a court order was sufficient to establish contempt. The court also found that the plaintiff had established breaches of the order, as the defendant had not produced the documents as directed. The court rejected the defendant's argument that the breaches were casual, accidental or unintentional, finding that the defendant's conduct amounted to a deliberate refusal to comply with the court order.
The court held that the defendant was in contempt of court and ordered the defendant to pay costs to the plaintiff. The court found that the defendant's actions were deliberate and that the plaintiff was not required to prove any specific intent to disobey the court order. The court also found that the plaintiff had established breaches of the order and that the breaches were not casual, accidental or unintentional. The court ordered the defendant to pay the plaintiff's costs of the contempt motion.