Camm v ASI Development Company Pty Ltd

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…