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Cohen v Double Bay Bowling Club

Cohen v Double Bay Bowling Club

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Case Copied 22 November 2019 85 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Cohen v Double Bay Bowling Club [2019] NSWSC 1625
Hearing dates: 1 and 18 October 2019
Decision date: 22 November 2019
Jurisdiction: Equity - Technology and Construction List
Before: Henry J
Decision:
See paragraphs [295] and [296]

Catchwords:
CONTEMPT – criminal contempt – breach of undertaking – construction of undertaking – whether ambiguous – meaning of “works in the nature of excavation” – whether digging of previously excavated material constitutes excavation – whether statement of charges against first defendant properly particularised – insufficient evidence that first defendant “arranged” for works to be carried out in breach of undertaking – whether second defendant carried out works in breach of undertaking as charged – whether contumacy is necessary to find guilty of criminal contempt
CIVIL PROCEDURE – stay of proceedings – abuse of process – whether plaintiffs' bringing of contempt proceedings constitutes abuse of process
Legislation Cited: Conveyancing Act 1919 (NSW), s 177
Supreme Court Act 1970 (NSW), s 101
Supreme Court Rules 1970 (NSW), Part 55, r 13
Cases Cited: ASIC v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62
Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; (1986) 66 ALR 577
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193
Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2017] VSCA 22
Bydand Holdings Pty Limited v Pineland Property Holdings Pty Limited & Ors [2009] NSWSC 579
Bydand Holdings Pty Limited v Pineland Property Holdings Pty Limited & Ors [2009] NSWSC 584
Bydand Holdings Pty Limited v Pineland Property Holdings Pty Limited & Ors [2009] NSWSC 959
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Construction, Forestry, Mining and Energy Union v Grocon Constructions (Victoria) Pty Ltd (2014) 47 VR 527; [2014] VSCA 261
Doe v Dowling [2017] NSWSC 202
Dong v Song (No 4) [2019] ACTSC 168
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Kirkpatrick v Kotis [2004] NSWSC 1265
Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92
Matthews v ASIC [2009] NSWCA 155
McDonnell v Novello [2006] NSWSC 1186
McGuirk v University of NSW [2009] NSWSC 1058
Mead v Mead (2007) 235 ALR 197; [2007] HCA 25
Microsoft Corporation v Marks (1996) 69 FCR 117; (1996) 139 ALR 99
Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91; [2009] NSWLEC 92
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Pisano v Dandris [2015] NSWSC 1219
Rafailidis v Camden Council [2015] NSWCA 185
Re Group Pty Ltd v Kazal (No 4) [2017] FCA 1084
Shaw v Yarranova Pty Ltd (2006) 15 VR 289; [2006] VSCA 291
Shepherd v The Queen (1990) 170 CLR 573
Spokes v Banbury…

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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Details

Case: [2019] NSWSC 1625
Decision Date: 22 November 2019

CaseChat Overview and Summary

In Cohen v Double Bay Bowling Club, the plaintiffs, Mr Cohen and Mr Coutts, brought contempt proceedings against the first defendant, the Double Bay Bowling Club, and the second defendant, Mr Laing, who is a director of the Club. The dispute arose from an earlier interlocutory injunction that prohibited the Club and Mr Laing from carrying out any works in the nature of excavation within the vicinity of the plaintiffs’ property. The plaintiffs alleged that the defendants had breached the injunction by engaging in activities that constituted excavation, in violation of the undertaking given to the Court. The case was heard in the Supreme Court of New South Wales, Equity Division.
The primary legal issues that the Court had to decide included the interpretation of the phrase “works in the nature of excavation” in the context of the undertaking, whether the statement of charges against the first defendant was properly particularised, and whether there was sufficient evidence to establish that the first defendant had arranged for the works to be carried out in breach of the undertaking. Additionally, the Court needed to determine if Mr Laing, as a director of the Club, could be held liable for the works carried out by the Club in breach of the undertaking. Another issue was whether contumacy is a necessary element to find someone guilty of criminal contempt.
The Court found that the phrase “works in the nature of excavation” was ambiguous and that the digging of previously excavated material did not constitute excavation as per the undertaking. The Court also held that the statement of charges against the first defendant was not properly particularised, and there was insufficient evidence to establish that the first defendant had arranged for the works to be carried out in breach of the undertaking. Consequently, the Court dismissed the contempt proceedings against the first defendant. Regarding the second defendant, the Court found that there was evidence to support the allegation that he had carried out works in breach of the undertaking. However, the Court held that contumacy was not a necessary element to find someone guilty of criminal contempt, and Mr Laing was found guilty of criminal contempt. Finally, the Court declined to stay the proceedings on the basis that there had been no abuse of process by the plaintiffs in bringing the contempt proceedings.

Orders