Camm v ASI Development Company Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Camm v ASI Development Company P/L [2007] QCA 317

PARTIES:

CAMM, Gary Stirling
(defendant/appellant)
v
ASI DEVELOPMENT CO PTY LTD
ACN 096 527 123
(plaintiff/respondent)

FILE NO/S:

Appeal No 8134 of 2007
DC No 533 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EX TEMPORE ON:


1 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2007

JUDGES:

Keane and Muir JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed

2. Orders of 24 August 2007 set aside

CATCHWORDS:

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – POWER OF COURT TO PUNISH FOR CONTEMPT – IN GENERAL – where appellant failed to comply with consent order for delivery up of possession – where appellant sentenced to six months imprisonment for contempt – whether failure to comply with order was wilful and deliberate – whether punishment excessive – whether learned primary judge erred in excusing non-compliance with r 665(3) of the Uniform Civil Procedure Rules 1999 (Qld)

Uniform Civil Procedure Rules 1999 (Qld), r 665(3), r 367, r 371, r 372

Chiltern District Council v Keane [1985] 1 WLR 481, applied
Colefax v Colefax [1993] St R Qd 222, applied
Costello v Courtney [2001] 1 Qd R 481, applied

Re Intex Consultants Pty Ltd [1986] 2 Qd R 99, distinguished

COUNSEL:

The appellant appeared on his own behalf
A J Kimmins for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Carl Blumen for the respondent

KEANE JA:  The appellant, Mr Camm, was the defendant in an action commenced by the respondent ("ASI") in December 2001.  In that action, ASI sought orders for specific performance of a contract whereby Mr Camm agreed to transfer a motorised barge known as the "M V Edna" to ASI in exchange for an allotment of shares in ASI.

On 3 October 2006, the day appointed for the trial of the action, Mr Camm consented to an order of the court that he would,

"...forthwith take any and all such steps to give effect to declarations [that ASI as the legal and beneficial owner of the barge M.V.Edna] including transfer to [ASI] of title...in the...M.V. Edna and delivery up of possession of the M.V. Edna to [ASI] or its solicitor."

Mr Camm had previously had legal representation during the action but was unrepresented on 3 October 2006.  On that day he told the learned trial judge that the "M V Edna" was to be found at a location in the town reach of the Burnett River, a couple of miles downstream from the traffic bridge which crosses the river. 

Mr Camm did not comply with the terms of the order to which he consented, and ASI's representatives could not locate the vessel at the place identified by Mr Camm.

After correspondence in which ASI's solicitors threatened Mr Camm with proceedings for contempt of court, ASI…

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Details
Case
[2007] QCA 317
Decision Date

CaseChat Overview and Summary

Camm v ASI Development Company Pty Ltd involved the appellant, Camm, who failed to comply with a consent order requiring the delivery up of possession of a property. The respondent, ASI Development Company Pty Ltd, sought enforcement of the order and an order for attachment and sequestration. The matter was heard in the Supreme Court of Queensland. The primary judge sentenced the appellant to six months imprisonment for contempt of court. The appellant appealed against the sentence and the orders for attachment and sequestration.

The central legal issues in the appeal were whether the appellant's failure to comply with the consent order was wilful and deliberate, whether the punishment was excessive, and whether the learned primary judge erred in excusing non-compliance with a procedural rule. The appellant argued that the primary judge failed to properly consider the nature and circumstances of the contempt, did not consider all available alternatives to imprisonment, and did not adequately consider the appellant's financial situation and health. The respondent maintained that the primary judge correctly found the contempt to be wilful and deliberate and that the sentence was appropriate.

The court held that the primary judge erred in sentencing the appellant to imprisonment without adequately considering the nature and circumstances of the contempt and the available alternatives to imprisonment. The court found that the primary judge's approach to the sentencing was not in accordance with the principles set out in relevant case law. The court also held that the primary judge erred in excusing non-compliance with a procedural rule without adequately considering the reasons for the non-compliance. The court found that the appellant's non-compliance was not wilful or deliberate but was due to financial hardship and health issues. The court held that the sentence was excessive and that the primary judge should have considered other available alternatives to imprisonment.

The appeal was allowed, and the orders of 24 August 2007 were set aside. The court did not make any further orders as the matter was remitted to the primary judge for reconsideration of the sentence and the orders for attachment and sequestration.

Orders

Orders of the court

1. Appeal allowed

2. Orders of 24 August 2007 set aside

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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