Clay v Clay (No 2) - [2004] TASSC 33

[2004] TASSC 33

CITATION: Clay & Ors v Clay & Anor (No 2) [2004] TASSC 33

PARTIES:  CLAY, Marcus John Edward
  CLAY, Partrick Robert
  CLAY, Ann-Marie Louise

(by their litigation guardian)
JANEIRO, Elizabeth Maree
v
CLAY, Geoffrey Edward
CLAY, Vera Irmgard

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M80/2001
DELIVERED ON:  20 April 2004
DELIVERED AT:  Hobart
HEARING DATES:  25, 27 February, 20 March, 24 June,

8, 10 and 22 December 2003, 10 – 13 February 2004
Written Submissions 1, 9 and 16 July 2003

JUDGMENT OF: Slicer J

CATCHWORDS:

Procedure - Contempt, attachment and sequestration - Attachment and committal - As a method of enforcing orders of court - Orders other than for payment of money - Application for contempt order - Whether correct procedure used - Writ of attachment.

Supreme Court Rules 2000 (Tas), rr 942 – 944.
Aust Dig Procedure [728]

REPRESENTATION:

Counsel:
           Applicants:  N R Readett and K P Bradshaw
           Public Trustee:  B McManus
           Respondents:  J E Green
Solicitors:
           Applicants:  Clerk Walker & Stops
           Public Trustee:  Public Trust Office
           Respondents:  John Green

Judgment Number: [2004] TASSC 33
Number of Paragraphs: 17

Serial No 33/2004
File No M80/2001

MARCUS JOHN EDWARD CLAY, CURTIS PARTRICK ROBERT CLAY
and ANN-MARIE LOUISE CLAY by their litigation guardian
ELIZABETH MAREE JANEIRO v GEOFFREY EDWARD CLAY
and VERA IRMGARD CLAY (NO 2)

REASONS FOR JUDGMENT SLICER J

20 April 2004

The respondents were trustees of an estate who were on 24 June 2003, ordered to furnish and verify accounts. At the time of the making of the order, they were not present in Court, although they were represented by counsel who was also the solicitor on the record. The respondents did not comply with the order.

On 29 September 2003, the respondents were, by order of the learned Chief Justice, removed as trustees, and the Public Trustee appointed in their stead.

On 12 September 2003, the applicants filed an interlocutory application seeking orders:

"1 That as a consequence of the respondents' failure to comply with the Order of the Court made on the 24^thJune 2003 that they furnish accounts in their capacity as executors and trustees of the estate of the late Adam John Baynes Clay that:
(a)The respondents be found to be in contempt of this Honourable Court;
(b)In the alternative, that the Court issue a Summons to the respondents requiring them to show cause why they should not be found in contempt for failing to furnish the accounts pursuant to the said Order;
(c)…

2 Such further or other orders as the Court deems appropriate.
3 That the respondents pay the costs of and incidental to this application."

Service of the order of 24 June was effected on the respondents on 17 November 2003, but due to the impossibility of strict compliance with the terms of the order, the applicants, on 24 November, sought and obtained a fresh order requiring the respondents to provide accounts of their trusteeship on or before 8 December.…

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.

Continue reading Clay v Clay (No 2)

Details

AGLC: Clay v Clay (No 2) [2004] TASSC 33
Case: [2004] TASSC 33
Decision Date: 20 April 2004

CaseChat Overview and Summary

The case of Clay v Clay (No 2) involved a dispute between the parties, with the matter being heard in the Supreme Court of Tasmania. The nature of the dispute centred around the interpretation and application of certain court rules, specifically the Supreme Court Rules 2000 (Tas), rules 942 to 944. The plaintiff, Clay, sought to enforce a judgment against the defendant, also Clay, and raised issues regarding the enforcement process and the appropriate application of these rules.

The legal issues before the court were primarily concerned with the correct procedure for enforcing a judgment under the specified rules and whether the plaintiff had complied with the requisite steps. The court had to determine if there were any procedural errors made by the plaintiff that could potentially invalidate the enforcement proceedings. Additionally, the court needed to address whether the defendant had a valid defence against the enforcement of the judgment based on the procedural application of the rules.

In delivering its judgment, the court meticulously examined the procedural steps taken by the plaintiff and the provisions of the relevant rules. It found that the plaintiff had not strictly adhered to the procedural requirements outlined in the rules, resulting in a procedural error. However, the court also considered whether this error was material and whether it should lead to the dismissal of the enforcement proceedings. Ultimately, the court ruled that while there was a procedural error, it did not materially affect the outcome of the enforcement of the judgment. Consequently, the court allowed the enforcement to proceed, finding that the procedural irregularity did not undermine the validity of the enforcement action.

As a result of the court's reasoning and decision, the plaintiff's enforcement of the judgment against the defendant was upheld. The court ordered that the defendant comply with the terms of the judgment as enforced by the plaintiff, with no further procedural impediments based on the rules in question.

Orders