Commissioner for Fair Trading v Voulon
[2006] WASC 261
•23 NOVEMBER 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: COMMISSIONER FOR FAIR TRADING -v- VOULON & ORS [2006] WASC 261
CORAM: MILLER J
HEARD: 4 SEPTEMBER & 9 NOVEMBER 2006
DELIVERED : 23 NOVEMBER 2006
FILE NO/S: CIV 1772 of 2005
BETWEEN: COMMISSIONER FOR FAIR TRADING
Plaintiff
AND
ROLF GERARD VOULON
First DefendantTEMPLE OF BEL PTY LTD (ACN 085 804 459)
Second DefendantBILTRAD GLOBAL INVESTMENT CORPORATION PTY LTD (ACN 009 270 900)
Third DefendantANTIQUE QUALITY PTY LTD (ACN 071 854 432)
Fourth DefendantPERPETUAL CAPITAL INVESTMENTS PTY LTD (ACN 009 186 412)
Fifth Defendant
Catchwords:
Contempt of court - Whether first and fourth defendants in breach of orders of Hasluck J - Injunctions to restrain defendants from representations in relation to security bonds - Requirement to issue receipts in relation to bonds - Requirement to lodge bonds with bond administrator - Provisions of Residential Tenancies Act 1987 (WA) - Turns on own facts
Legislation:
Residential Tenancies Act 1987 (WA), s 29(4)(b)
Rules of the Supreme Court 1971 (WA), O 55
Result:
Conviction of first and fourth defendants of contempt of court for breach of O 12(ii) and 23(ii) respectively of orders of Hasluck J made 27 October 2005
Category: B
Representation:
Counsel:
Plaintiff: Mr S L Dworcan
First Defendant : Mr T Galic
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : Mr T Galic
Fifth Defendant : No appearance
Solicitors:
Plaintiff: Department of Consumer & Employment Protection
First Defendant : Galic & Co
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : Galic & Co
Fifth Defendant : No appearance
Case(s) referred to in judgment(s):
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Commissioner for Fair Trading v Voulon & Ors [2005] WASC 229
Commissioner for Fair Trading v Voulon & Ors [2005] WASC 229(S)
Liberato v The Queen (1985) 159 CLR 507
Re Jokai Tea Holdings Ltd [1993] 1 All ER 630
Witham v Holloway (1995) 183 CLR 525
Case(s) also cited:
AttorneyGeneral v Butterworth [1963] 1 QB 696
Castlecity Pty Ltd v Newvintage Nominees Pty Ltd [2002] WASC 2
Harris v Muirhead [1993] 2 Qd R 527
National Australia Bank Ltd v Juric (No 2) [2001] VSC 398
R v Lovelady; Ex parte AttorneyGeneral [1982] WAR 65
R v Pearce (1992) 7 WAR 395
MILLER J: This is the return of a summons for orders for committal for contempt for the first and fourth defendants in proceedings which resulted in certain interlocutory injunctive relief granted by Hasluck J on 27 October 2005.
The orders made by Hasluck J on 27 October 2005 related to the first defendant who was a person, and the second to fifth defendants which were corporations. Only the injunctions granted in relation to the first and fourth defendants are relevant to the summons before me.
Hasluck J gave an extensive judgment in which he set out the facts which led him to conclude that the interlocutory injunctions should be granted in favour of the plaintiff: Commissioner forFair Trading v Voulon & Ors [2005] WASC 229. The relief granted by Hasluck J is set out at [87] onwards and it is repeated in the extracted order of 27 October 2005.
There was an application made by the first defendant to vary certain of the orders made by Hasluck J. This resulted in a further judgment on 27 October 2005 (Commissioner for Fair Trading v Voulon & Ors [2005] WASC 229(S)), in consequence of which minor amendments were made to the original orders. In particular, the permanent restraint which had earlier been imposed upon the defendants was varied to restraint until judgment. Other variations are not relevant to this application.
The injunctions made by Hasluck J on 27 October 2005 are orders 9, 12, 20 and 23. Orders 20 and 23 mirror orders 9 and 12 and relate to the fourth defendant. Order 9 was in the following terms.
"'The First Defendant, whether personally, by his servants or agents or otherwise, be restrained until judgment or further order from directly, or being involved in the conduct of the Second to Fifth Defendant in, making any representation to any [current, former or prospective occupant ('Occupant')] of any Premises whether orally or in writing or by conduct, that the Defendant or any other person may, at the end of the Occupant's tenancy, retain and not remit to the Occupant any security bond monies however so described in circumstances other than where the Occupant has caused damage to the Premises.'
For the purposes of the orders, 'Premises' referred to residential premises of the nature described in 'Annexure A' to the orders, namely:
'Premises owned by any Defendant in any capacity whatsoever including, but not limited to, a house, apartment, townhouse, unit, flat or other similar dwelling situated in Western Australia capable of being let to a third party or third parties individually or jointly for a fee or any other consideration for the purposes of residential accommodation.'"
Order 12 was in the following terms:
"'The First Defendant, whether personally, by his servants or agents or otherwise, be required until judgment or further order to:
i.forthwith upon receipt of a security bond however so described from an Occupant of Premises, give or cause to be given to that Occupant a receipt in accordance with the requirements of s 29(4)(a) of the RTA [Residential Tenancies Act 1987]; and
ii.pay to the Bond Administrator any security bond however so described received from an Occupant of Premises in accordance with the requirements of s 29(4)(b) and Schedule 1 of the RTA.'"
In the proceedings before Hasluck J, the central issue was the question whether occupants of residential premises owned and operated by the defendants were tenants as distinct from lodgers. If they were tenants, the occupants were protected by the provisions of the Residential Tenancies Act 1987 (WA) ("RTA"), but if they were lodgers the relevant provisions of the RTA were inapplicable.
It appears that the defendants were the owners of various properties in the Perth metropolitan area in which rooms were let to occupants in circumstances where they shared the bathroom, toilet, kitchen and laundry facilities. The defendants arranged for the occupants of these premises to sign a document which was described as a "lodging accommodation licence" and which referred to the proprietor of the premises as the licensor and the occupant as a lodger.
After careful consideration of the facts of the case, Hasluck J considered that the statutory definition of "residential tenancy agreement" in the RTA meant that the agreements should be characterised as residential tenancy agreements, notwithstanding that the rights conferred upon the occupant did not include exclusive possession. His Honour found that, although the provisions of s 5(2)(d) of the RTA excluded from the application of the Act any residential tenancy agreement where the tenant was a boarder or lodger, a lodger was a person entitled to live in premises which he could not call a place of his own. He was essentially an inmate in another person's house. In the circumstances of the case, the occupants could not be so classified and, accordingly, the subject agreements were covered by the provisions of the RTA. These provisions had not been complied with in a number of different respects and, thus injunctive relief was granted.
The plaintiff now contends that the first and fourth defendants are in contempt of court by reason of breach of certain of the orders of Hasluck J in relation to the letting of premises at 8/11 Colin Grove, West Perth, being premises owned by the fourth defendant and in relation to which the occupant was one Jacqueline Mosha. The period of breach is alleged to be 16 December 2005 to 17 February 2006.
Evidence of Jacqueline Mosha
Ms Mosha swore two affidavits in the proceedings dated respectively 1 June 2006 and 23 August 2006. She deposed of the fact that she was 20 years of age, born in Zambia and had moved to Australia in June 2006 to undertake studies. On 16 December 2005, she saw an advertisement in The West Australian newspaper for a rental property in East Perth. She telephoned the number referred to in the advertisement and a male person answered the telephone. He said that he was the owner of the rental property and arranged to meet with Ms Mosha at 4 pm that day. This person was the first defendant. He met with Ms Mosha and they inspected one property, but it was unsuitable. The first defendant then told her that there was another rental property available at 8/11 Colin Grove, West Perth and he gave her a set of keys to inspect it. He asked for a deposit of $100 which was paid. Ms Mosha travelled to the West Perth property and viewed the unit. It was Unit 2. She found it suitable and decided she would accept it.
At about 7 pm on the same evening the first defendant visited Ms Mosha at Colin Grove. A residential tenancy agreement was completed. It was a tenancy for a period of six months, ending on 16 June 2006. It was an agreement which acknowledged that the owner and tenant were subject to the provisions of the RTA. In other words, the first and fourth defendants accepted the conclusions reached by Hasluck J; namely, that his occupants were tenants and not lodgers.
The residential tenancy agreement was described as "fixed term tenancy" and was an agreement made between the fourth defendant and Ms Mosha, the fourth defendant being the owner of the premises. The first defendant was at all relevant times acting on behalf of the fourth defendant.
The agreement set the weekly rent at $225 payable in advance, with the first payment to be made on 16 December 2005. There was some argument before me as to whether the rental was in fact a weekly rental or a fortnightly rental, but a document which was described as a rental history record indicated that the rental was to be paid two weeks in advance for the first fortnight, but thereafter weekly at the rate of $225. It was thus a weekly rental, but two weeks' rent were payable in the first instance. A bond was payable pursuant to the provisions of the RTA and that bond was fixed at the sum of $900.
Ms Mosha told the first defendant that she could not afford to pay a security bond of $900 in full. She said she could pay the first week's rent and part of the security bond that day and she has deposed that she gave the first defendant the sum of $390 in cash, being $225 for the first week of rent and $165 towards the security bond.
There was some dispute about whether $390 was actually handed over or $290. One hundred dollars had already been paid by way of deposit on the keys. I am satisfied that the $100 was taken into account and either handed back to Ms Mosha before it was handed to the first defendant, or kept by the first defendant and $290 given to him by Ms Mosha. A notation was made on the rental history record that $165 towards the bond had been paid on 16 December 2005 and $225 rent paid the same day. It will be observed that the $225 was for only one week, not two weeks.
According to Ms Mosha, on 23 December 2005 she met with the first defendant again and this time gave him $765 in cash for the remainder of the security bond. This was an overpayment of $30. The $765 was noted in a deposit book and $735 is shown on the rental history record. Nothing turns on the question of a $35 overpayment. Ms Mosha contended in her affidavit that at no time did she receive a receipt in respect of the payment of $765, nor did she receive any record of where her security bond had been deposited.
Ms Mosha deposed that on or about 2 February 2006, she telephoned the first defendant to inform him that she would be moving out, as she needed a residence near Joondalup. She says that the first defendant indicated that he would start advertising the room, but according to Ms Mosha she saw no advertisements in the newspaper at or around that time. On 10 February 2006, Ms Mosha found an apartment in Joondalup and on 14 February 2006 she signed a lease for it. She telephoned the first defendant to tell him that she would be moving out of Colin Grove on 17 February 2006 and asked whether a replacement tenant had been found. According to her, he said that no replacement had been found. He told Ms Mosha to ensure that the carpets were cleaned and the unit was ready for final inspection and that she was to leave the keys in the bedroom by locking the door from the inside and closing it when she left.
Ms Mosha contends that she asked the first defendant when the security bond would be returned and he said that it would not be returned until he had rented the unit out.
Ms Mosha's contends that she cleaned the unit and that there was no damage to it. As she had not received her security bond, she took the keys with her when she vacated the premises. There was a dispute between Ms Mosha and the first defendant about the return of the bond and she said she would not return the keys until she had the bond money. She claims that the first defendant told her that she had forfeited the bond because the lease was for six months and she had moved out early. She claims that he said that he would keep the bond and charge rent until he found another tenant even if "that took forever".
Ms Mosha contends that within a day she telephoned the first defendant again asking him to return the bond, but he repeated that he would not do this until he had rented the unit out. In late February 2006, Ms Mosha spoke with the first defendant again and she contends that he said she could not have her bond money back until the lease expired in June and that new tenants were going there but only for six to eight weeks.
Ultimately, Ms Mosha dropped the keys off at the Perth Police Station. She made a complaint to the plaintiff in relation to her dealings with the first defendant.
Evidence of the First Defendant
The first defendant has answered Ms Mosha's assertions in an affidavit sworn 9 August 2006. There is a supplementary affidavit sworn 1 September 2006. The first defendant says that, when the negotiations took place at Colin Grove and the sum of $390 was paid, he told Ms Mosha that she was to sign a Lodgement of Security Bond form which would be lodged with the bond moneys once the full amount had been paid. This form is annexed to the affidavit of the first defendant sworn 9 August 2006, and it shows the amount of the bond as $900. It is signed by Ms Mosha and dated by her 16 December 2005, and signed by the first defendant on behalf of the fourth defendant and dated by him 20 January 2006.
The first defendant contends that the amount of $765 was paid on 23 December 2005, and that sum was paid towards the bond. Initially, he had sworn in his affidavit that it was allocated as between rent and bond, but in evidence before me he changed that statement.
The first defendant contended that, on 12 January 2006, he made out a receipt to Ms Mosha for the sum of $900, being full payment of the bond on the unit at Colin Grove. He contends that this was sent to Ms Mosha. She denies ever receiving it.
A copy of the receipt was annexed to the affidavit of the first defendant. The receipt number is 487632, and is apparently out of date sequence in the receipt book. The receipt book was not tendered as an exhibit, but the first defendant was cross‑examined about it. He said that the variation in date and numerical sequence in the receipt book was due to the fact that he did not necessarily write receipts in chronological order. He instanced another example of a receipt at the back of the book for a far earlier time than January 2006. The explanation was not very convincing. However, it is difficult to be satisfied beyond reasonable doubt that no receipt was completed and sent to Ms Mosha as the first defendant contended. To reach such a conclusion, I would have to totally disbelieve him and accept the evidence of Ms Mosha. I will come back to this issue.
The first defendant contended that, in January 2006, he contacted a number of real estate agents for the purpose of having them look after his various rental properties in the city area. He spoke with Eddie Ahmed Kamil of Eftos Estate Agents in Leederville in late January or early February 2006, and inquired whether his firm would look after the rentals. He said that Mr Kamil informed him that he would speak to his boss. He left several files with Mr Kamil, who indicated that if his firm took over the management of the properties, the firm would organise the lodgement of bonds and all necessary paperwork.
Evidence of Eddie Ahmed Kamil
Eddie Ahmed Kamil swore an affidavit on 4 September 2006, which was accepted in evidence without Mr Kamil being called to be cross‑examined. No issue was drawn with it by the plaintiff.
Mr Kamil says that in or about January or February 2006, he did meet with the first defendant to discuss the management of his rental properties. He says that the first defendant arrived with one manila folder containing rental agreements and other forms inclusive of bond lodgement forms and condition of property reports for various properties. He says he flicked through the folders and said he would speak to his boss, and would get back to the first defendant if his employer was interested. The folder was left with Mr Kamil.
According to Mr Kamil, in March 2006 the first defendant called and asked if the folder had been left at the office. Mr Kamil was unable to find it and said that it had not been. In mid to late May 2006, Mr Kamil was cleaning through his office and came across the first defendant's file. He telephoned him and said that he had found it and the first defendant came to the office and collected it.
Evidence of First Defendant as to Security Bond
After being told by Mr Kamil of the location of the file, the first defendant retrieved the bond lodgement form and lodged it as required by the RTA. The lodgement is dated 10 June 2006 and records that the tenancy began on 16 December 2005. The late lodgement is thus accounted for by reason of the loss of the file within which the form was enclosed. There is an issue as to whether, in any event, the first defendant should have paid the $900 to the bond administrator, but his contention is that it was a matter for Mr Kamil if he took over the management of the properties.
The first defendant contended that, during the last week in January, Ms Mosha called him to say that she would like to move to Joondalup and she inquired about the consequence of breaking her lease. He says he told her that the lease was until 17 June 2006, but he could advertise to see if somebody would be interested in taking over the tenancy. In the meantime, she would be responsible for the agreement until 17 June 2006.
The first defendant says that Ms Mosha asked him to advertise and he did so beginning 1 February 2006, running a series of advertisements until 11 February 2006. Copies of these advertisements are annexed to his affidavit.
The first defendant says that, on 4 February 2006, he called Ms Mosha because her rent had not been paid the previous day. She asked whether the rent could be taken out of the bond. He says he told her he was not allowed to do that.
The first defendant says that, on 14 February 2006, Ms Mosha advised that she had found alternative accommodation and would be leaving on 17 February 2006. The first defendant says he informed her that he had not found another tenant and she would need to pay rent until somebody was found. He says that she was told the unit was to be cleaned and carpets professionally cleaned by a nominated carpet cleaner. He says she undertook to do this and arrangements were made to meet on 17 February 2006. This was later changed to 18 February 2006.
The First Defendant's Inspection of the Premises and its Sequel
The first defendant says he visited the premises on 18 February 2006 and found the carpets had not been cleaned, the apartment had not been cleaned, the mirrors were dirty and there were no keys. He contacted Ms Mosha and she told him that she would exchange the keys for the bond money. He says he told her the unit had not been cleaned, no tenant had been found and she owed two weeks' rent. Ms Mosha said that she wanted her bond money returned. The first defendant says that he asked her what was to happen about the advertising costs and she said she would pay them. He asked when the costs would be paid and she replied "when the bond is returned".
In due course, the first defendant arranged for somebody to move into the apartment on 28 February 2006. He rang Ms Mosha to ask for the keys, but she asked about the bond. He claims he said that, once the tenants had moved in, he would organise the signature of bond release forms. He contends that it was only after Ms Mosha had left the premises that he found he could not locate her rental agreement or the bond lodgement form. He telephoned the bond administrator to inquire whether the bond had been lodged and was informed it had not been. He searched for it, but was unable to find it. Ultimately, Mr Kamil telephoned him to advise of the position and he then collected the file and lodged the form.
On 21 June 2006, the fourth defendant obtained a judgment against Ms Mosha in the Local Court at Perth for $1002.50 in proceedings which it had brought seeking the release of the bond money to cover various expenses. Those expenses (which were allowed) were as follows:
"i)$675-00 lost rent of 3 weeks
ii)$66-00 carpet cleaning
iii)$50-00 general cleaning
iv)$184-80 advertising costs
v)$26-70 court costs"
It appears that Ms Mosha was unable to be served with the papers relating to the proceedings, but notice of the Court date was advertised in the public notices section of The West Australian newspaper.
I was informed by counsel for the plaintiff on the second day of the hearing of this matter that the judgment of the Local Court entered on 21 June 2006 was set aside by order of 13 September 2006, when Ms Mosha was given leave to apply to relist the action for hearing at the conclusion of these contempt proceedings. I am not at all sure what relevance these proceedings should have to the Local Court proceedings, but there is no need for me to deal further with that aspect of the matter. It is sufficient to say that, on 21 June, the fourth defendant obtained the judgment which it did, which then authorised the release of certain bond moneys to it for the purposes there shown. The order of the Court rather confirms my view that order 9 of the orders of Hasluck J is expressed far too narrowly, because, clearly, the Local Court has the capacity to order the deduction from security bond moneys of moneys other than those that relate to damaged premises.
The first defendant was questioned during his cross‑examination on whether he had complied with an order of the Local Court when the judgment was set aside, whereby the moneys deducted, namely, $1002.50, should be paid back forthwith to the bond administrator. Apparently, those moneys have not yet been paid. The first defendant said that he would "organise it". I would point out, however, that it was not the first defendant's obligation to repay the moneys, but the obligation of the fourth defendant.
Credibility
It will be seen that there is a very clear credibility contest between Ms Mosha and the first defendant. Both were called for cross‑examination before me.
Credibility of Ms Mosha
It was put to Ms Mosha during cross‑examination that she was not telling the truth and that it was untrue that the first defendant had represented to her:
(i)That he would not return her security bond money until such time as he had rented the unit to new tenants.
(ii)She had broken her lease agreement and therefore forfeited the security bond.
(iii)He would not return the bond money until after the terms of the original lease expired in June 2006.
It is these alleged representations which the plaintiff contends breach orders 9 and 20 of the Hasluck J's orders of 27 October 2005.
I note in passing that orders 9 and 20 of Hasluck J's orders are extremely narrow in effect. They restrain the first and fourth defendants from representing in any way that security bond moneys might be retained or not remitted to an occupant otherwise than where the occupant has caused damage to the premises. Just how this order came to be made is unclear. Orders 9 and 20 may require some variation, but it is not appropriate for me to make any variation in these proceedings.
In any event, the first and fourth defendants deny absolutely the representations which I have listed above and which are said to breach orders 9 and 20 of the orders of Hasluck J of 27 October 2005. If the allegations were proven, there would certainly be breach of the orders.
Because the evidence of Ms Mosha was diametrically opposed to that of the evidence of the first defendant, I allowed counsel for the first defendant considerable latitude in cross‑examination on the issue of credibility. He effectively put to Ms Mosha that she was an untruthful person because she represented herself to the first defendant as a student, when she was, in fact, engaged in the activities of prostitution. Whether she was or not is of no relevance to the tenancy she had, but it is relevant to her credit, particularly her truthfulness as a witness.
Ms Mosha denied that at any time she had engaged in such activities. She denied specifically that she had ever told a fellow tenant at Colin Grove that she worked nightshifts and worked in promotions in Victoria Park. She denied that there had ever been any occasion when people had come to her room for massage services.
Ms Mosha was very flat and unemotional in the way in which she gave evidence. She had an accent which made it difficult to understand clearly some of the things she said. However, making due allowance for this, I was still not impressed with her as a witness. In view of the evidence that was given by another witness, I do not accept her statement that she had never engaged in the services of prostitution.
Evidence of Maria Nunziata D'Agostino
Ms Maria Nunziata D'Agostino, who swore an affidavit on 1 September 2006, was called to give evidence in relation to that affidavit. She deposed to the fact that she was the tenant of Room 1 at Unit 11 Colin Grove and had been since 4 December 2005. She observed Ms Mosha move into Room 2 several weeks after December 2005 and she introduced herself to her. There was a common door to the kitchen and the kitchen and bathroom were shared. According to Ms D'Agostino, Ms Mosha told her that she worked nightshifts and that she was in promotions in Victoria Park.
Ms D'Agostino observed that Ms Mosha's partner began to stay in the premises, and she observed damage to the premises after Ms Mosha had left. In particular, she saw a cracked glass panel at the front door, a loose vanity basin and what she described as "general deterioration of the fittings and appliances". She was adamant that this must have been done by Ms Mosha or her partner, because she (Ms D'Agostino) was not responsible for the damage and there was no‑one else who could have damaged the premises. I accept that evidence.
Ms D'Agostino swore that, towards the end of Ms Mosha's tenancy, she saw at least two men come to the premises, one of whom knocked on Ms D'Agostino's door and when she opened it asked for massage. She told him that there was no such service available from her and she saw him walk away. She had a glass door through which she could see his shadow. She heard Ms Mosha on her mobile phone redirecting the man and she saw the man make his way to Ms Mosha's apartment. She saw this happen more than once. Further, she observed that men were using the bathroom and showering there after seeing Ms Mosha.
I am quite satisfied that Ms D'Agostino was telling the truth. She was an impressive witness. Her evidence leads me to conclude that Ms Mosha was engaged in delivering massage services to men and thus was engaged in a form of prostitution. Her absolute denial that she had engaged in these activities leads me to conclude that she did not tell the truth on this issue in the witness box. That being so, it affects her evidence generally.
Credibility of the First Defendant
The first defendant was cross‑examined at length on the first day of the hearing and again on the second. He was not an impressive witness and was found wanting in relation to a number of his answers. In general terms, it was established that he had a history of non‑compliance with the provisions of the RTA in many respects. This was demonstrated by cross‑examination in relation to a number of tenants where security bond moneys were clearly paid outside the 14‑day time limit imposed in Sch 1 of the RTA. However, at the same time, it became apparent from the cross‑examination of the first defendant that the tenancies he arranges are, to some extent, outside the scope of the tenancies which are envisaged in the RTA. The first defendant specialises in the letting of rooms to tenants in a number of different premises owned by one or more of the other defendants. In many cases, the tenants are people who are very short of money, and they pay security bonds by instalments and often over a considerable period of time. The RTA is silent about what the requirements are in relation to lodgement of those bond moneys when they are paid in that way.
The RTA is clearly designed to ensure that tenants under residential tenancy agreements are protected in many different respects, particularly in relation to the payment of security bonds. Experience before 1987 showed that tenants were often very much at a disadvantage in dealing with owners of premises and residential tenancy agreements were often oppressive to tenants. The Act seeks to remedy that situation.
However, one must appreciate that the first and possibly other defendants do serve a useful social purpose in making available to tenants single rooms in shared premises at relatively low rents and in circumstances where the tenants are given latitude in the payment of security bonds by allowing them to pay them by instalments over what can sometimes be a lengthy period of time. Quite often, those instalments are in very small amounts of money.
The first defendant testified that he has experimented with having real estate agents manage his rental properties, but the experience showed that there was far too much damage being sustained at the properties to justify taking that course. Consequently, he personally manages all of the tenancies. This means that he has a very substantial amount of paperwork. Sometimes, it could be up to four weeks before he opens mail. However, to overcome this, he is apparently looking for a part‑time manager to assist with the paperwork and ensure that the provisions of the RTA are complied with.
The first defendant sought to persuade me that he had difficulty understanding the precise import of the orders of Hasluck J. He said that he needed some legal interpretation of them. Generally speaking, I should think that the first defendant had the capacity to understand what the orders meant, although it is true that there is some complexity in the orders. In any event, he now seems clear enough as to what the content of the orders is.
Cross‑examination of the first defendant in relation to a wide range of matters revealed that he has been remiss about making payment on time, or at all, of various moneys he has been required to pay pursuant either to the RTA or pursuant to Court orders. For example, he has not paid a costs order in the sum of $750, made by Hasluck J following an unsuccessful attempt on the first defendant's part to vary the orders of Hasluck J. Although ordered to pay these costs within a period of seven days, the first defendant contended that he did not understand he had to pay them within that period. It was put to me by counsel for the plaintiff that the first defendant was a person who "ignores court orders", but I consider that too sweeping an assertion. It is true, however, that the first defendant appears reluctant to make payment of moneys ordered to be paid pursuant to orders of the Court and/or pursuant to the provisions of the RTA itself.
There was extensive cross‑examination about the circumstances in which advertising costs of $184.80 were claimed and allowed in the Local Court proceedings on 21 June 2006. Counsel for the plaintiff asked the first defendant to identify what advertisements were inserted in the newspaper and at what exact cost. The first defendant was only able to point to general advertisements for properties in West Perth and elsewhere (which he said related to the Colin Street premises), but it would appear that, in calculating the figure of $184.80, he took an average of $25 for each advertisement and multiplied that by eight. Even that calculation does not make precisely $184.80 and it remained a mystery how that figure had been arrived at. However, it was not incumbent on me to decide whether or not an appropriate claim had been made in the Local Court in this respect. I make no comment on it, particularly as the proceedings have been reopened. All that the cross‑examination demonstrated was that the first defendant was found wanting in answers as to how he had calculated the advertising costs which were deducted from the security bond.
When re‑examined, the first defendant did testify that he was, at the present time, in clear understanding of his obligations under the RTA and the terms of the injunctive relief granted by Hasluck J. He confirmed that he has changed his system in relation to tenancies, now uses a check‑sheet in relation to each tenant to ensure that all aspects are covered, and has a separate folder for each tenancy. He contended that he had made numerous approaches to the plaintiff to get clarification of his obligations and to check the legality of certain documents he had prepared, but complained that the plaintiff had refused to give any opinions on the matter. It is not for me to say whether the plaintiff should or should not be giving advice of this nature. One can readily understand that the plaintiff might not wish to express opinions on matters of law, but, on the other hand, in the interests of resolving ongoing disputes between the plaintiff and the defendants, it would seem desirable that there be some attempt to give guidance to the defendants.
The first defendant ended up by saying in his re‑examination that if there had been any breaches of orders made by Hasluck J, they were "not intentional" and, in his view, the orders were not "clear and concise".
The overall impression with which I was left in relation to the credibility of the first defendant was that he was wanting in relation to a number of his answers. However, it is not necessary that I should conclude that his evidence was truthful in every respect. What his evidence did was cast doubt on the evidence given by Ms Mosha in relation to the three representations which are alleged to constitute the contempt on the part of the first and fourth defendants in relation to orders 9 and 20 of the orders of Hasluck J of 27 October 2005.
Contempt of Court
This Court has an inherent power to punish acts which constitute contempt of court. Order 55 of the Rules of the Supreme Court1971 (WA) provides that a single Judge may punish for contempt of court when proven. The commentary upon O 55 in Seaman, "Civil Procedure Western Australia" Vol 1 at [55.1.4] sets out the general principles that relate to criminal contempt and civil contempt. This case is concerned with civil contempt. It involves disobedience of a court order. Criminal contempt is committed either when there is contempt in the face of the Court, or an interference with the course of justice. However, disobedience to an order may amount to criminal contempt if it is contumacious.
Importantly, all proceedings for contempt are criminal in nature and must therefore be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525. In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, the High Court (Gibbs CJ, Mason, Wilson and Deane JJ) observed (at 107) that the distinction between criminal and civil contempt overlooks the underlying rationale of every exercise of the contempt power "namely that it is necessary to uphold and protect the effective administration of justice. Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court's orders will be enforced".
Their Honours added (at 111 ‑ 113):
" ... lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. In our view the reasons supporting the recent decisions are compelling and they should be accepted by this Court. It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional."
The question in this case is whether I am satisfied beyond reasonable doubt that the first and fourth defendants are in contempt of court. There is a further question, and that is whether, if in contempt of court, the contempt is contumacious and therefore criminal, or whether it is mere civil contempt. There may be some distinction in this respect between the first and fourth defendants, but essentially because the first defendant is alleged to have acted on behalf of the fourth defendant, it would seem follow that if the first defendant was guilty of contempt, so would the fourth defendant be guilty.
The Particulars of Contempt Alleged
I have already referred to the assertions of the plaintiff in relation to the alleged contempt of the first and fourth defendants in relation to orders 9 and 20 of Hasluck J's orders.
It is also contended that orders 12 and 23 were disobeyed. The particulars in relation to that allegation are that the first and fourth defendants:
(i)Did not give Ms Mosha a receipt in respect of the security bond moneys as required by s 29(4)(a) of the RTA.
(ii)Did not lodge Ms Mosha's security bond monies with the bond administrator in accordance with s 29(4)(b) of the RTA.
It is contended that both par (i) and par (ii) of orders 12 and 23 were breached by the first defendant and by the fourth defendant respectively.
The Alleged Breach of Orders 9 and 20
I have already commented upon the fact that orders 9 and 20 are framed in very narrow terms. They preclude the first and fourth defendants from making any representation that they may, at the end of an occupant's tenancy, retain and not remit to the occupant any security bond moneys, in circumstances other than where the occupant has caused damage to the premises.
The question is whether it has been proven beyond reasonable doubt that the first and fourth defendants made the three representations which are contended for namely:
(i)That the security bond money would not be returned until such time as the unit had been rented to new tenants.
(ii)The lease agreement had been broken and the security bond would be forfeited.
(iii)The bond money would not be returned until the term of the original lease expired.
Counsel for the plaintiff urged at the conclusion of the hearing that there were actually four representations, but the chamber summons lists the respondents as three and essentially in the terms I have set out above.
The First Representation
In her affidavit sworn 1 June 2006, Ms Mosha contended that she had telephoned the first defendant on the afternoon of 14 February to advise that she would be leaving the premises on 17 February. She put it this way:
"I then asked the First Defendant when he would return my security bond to me. He said [sic he] would not return the bond to me until he had rented the unit out. I asked the First Defendant how he expected to find another tenant when he had not even advertised out. He again mentioned his friend that was advertising properties and would refer inquiries to him."
The first defendant, in his affidavit of 9 August 2006, related the terms of the conversation as follows:
"On or around the 14th February 2006 Ms Mosha called me and said that she had found alternative accommodation and wanted to move out of the apartment on 17 February 2006. I informed her that I had not found another tenant and that she would need to pay rent until I had found someone. She told me that she had signed a new lease agreement and needed to move. I again informed Ms Mosha that she would need to pay the rent at Colin Grove until a new tenant had been found."
Counsel for the plaintiff contended that the absence of any denial that he would hold the security bond until the unit had been rented out constituted an implied representation that he was entitled to "hang onto it".
At par 40 of his affidavit, the first defendant said:
"I informed Ms Mosha that in the event that she did not return the keys I would need to have the locks replaced at her cost and I also said to her that she would be responsible for the rental payments until such time as a new tenant had taken over the apartment. At no time did I say to Ms Mosha that I could keep her bond monies or charge her rent even if it took forever."
There was an additional reference in the first defendant's affidavit sworn 1 September 2006, where, at par 18 he said:
"In the case of Jacqueline Mosha, I deny ever having said to her in February 2006, or at any other time;
(a)that I would not return her security bond money to her until such time as I had rented out the unit to new tenants; or
(b)that she had broken her lease agreement and had forfeited her security bond; or
(c)that I would not return the bond money to her until after the term of the original leave agreement had expired in June 2006."
It seems to me, therefore, that the first representation was very much in issue and not conceded in any way at all by the first defendant.
The Second Representation
Ms Mosha, her affidavit of 1 June 2006, put this representation (at par 31) in the following terms:
"The First defendant then told me I was breaking the law and breaking the lease. He said I had forfeited the bond as the leave was for 6 months and I had moved out early. I said to the First Defendant that he could not do that. He replied by saying that he could keep my bond and also charge me rent until he found another tenant, even if that took forever."
As I have indicated above, the first defendant clearly denied that he had ever made this representation.
The Third Representation
In her affidavit of 1 June 2006 (at par 33), Ms Mosha put this representation in the following terms:
"The following day, I telephoned the First Defendant again. I asked him to return my bond to me. He said that he would not do that until he had rented the unit out."
As I have pointed out, the first defendant denied ever making such a representation.
The Suggested Fourth Representation
Counsel for the plaintiff contended that there was a fourth representation, put by Ms Mosha in her affidavit of 1 June 2006, as follows (at par 34):
" ... The first Defendant said that I could not have my bond money back until the lease expired in June. He then said that the new tenants were only go [sic going] to be there for a period of 6 to 8 weeks and not the remaining term of my lease."
As I have pointed out, this was likewise denied by the first defendant.
However, when cross‑examined about the matter, the first defendant said:
"She asked when she would receive the bond money back and I think my reply to her was she had a six‑month agreement, we would need to have the place re‑let and then we could organise for the bond to be returned.
...
I'm asking you is the effect of your evidence in paragraph 39 that once she had attended to those matters she would get her bond back?‑‑‑I suppose so.
So in other words her getting her bond back was conditional on her paying for the advertising costs, paying for the cleaning, and paying outstanding rent?‑‑‑Yes."
It was thus contended by counsel for the plaintiff that the first defendant had conceded that he had told Ms Mosha that the return of the bond money was conditional upon the cleaning of the unit and a new tenant being found.
The particulars of the alleged contempt do not include an allegation that the first and fourth defendants had breached the orders of Hasluck J by contending that payment back of the security bond was conditional on Ms Mosha paying for advertising costs, cleaning costs and outstanding rent. The three particulars are clearly identified in the summons in the following terms:
"G.On or about 14 February 2006 and again in about late February 2006, the First Defendant said to Ms Mosha that he would not return her security bond money until such time as he had rented the unit to new tenants.
H.In about mid February 2006, the First Defendant said to Ms Mosha that she had broken her lease agreement and had forfeited her security bond.
I.In about late February 2006, the First Defendant said to Ms Mosha that he would not return the bond money until after the term of the original lease agreement had expired in June 2006."
In these circumstances, whatever the first defendant may have said about payment of the security bond being conditional on the payment of advertising costs, cleaning costs and outstanding rent, that is not an allegation contained within the particulars of contempt and I therefore disregard it.
It is necessarily the case that I must be satisfied beyond reasonable doubt that Ms Mosha was truthful in her assertions that each of the three representations were made by the first defendant before either the first or the fourth defendant could be guilty of contempt.
In the context of criminal proceedings, the judgment of Brennan J in Liberato v The Queen (1985) 159 CLR 507 (at 515) is relevant in certain cases in which there is a conflict of evidence between that of a prosecution witness and a defence witness. This is not a statement which applies to all cases, and it was not the case that the other members of the High Court in Liberato v The Queen (supra) adopted it. It is, however, relevant to the present case because of the conflict between the two key witnesses, and because the plaintiff must prove the case against the first and fourth defendants beyond reasonable doubt. The passage of Brennan J (at 515) is as follows:
"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence of the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."
In this case, there are before me two witnesses who are diametrically opposed to each other in terms of their testimony. I am not satisfied beyond reasonable doubt of the truth of the evidence of Ms Mosha. The evidence of the first defendant does give rise to a reasonable doubt in relation to the issues which are before me in relation to orders 9 and 20 of the orders of Hasluck J.
The Alleged Breach of Orders 12 and 23
The assertions of the plaintiff are:
(i)Neither the first defendant, nor any person on behalf of the fourth defendant gave Ms Mosha a receipt in respect of the security bond as required by s 29(4)(a) of the RTA.
(ii)Neither the first defendant, nor any other person on behalf of the fourth defendant lodged Ms Mosha's security bond moneys with the bond administrator in accordance with s 29(4)(b) of the RTA.
The orders of Hasluck J required, firstly, that "forthwith upon receipt of a security bond" a receipt should issue; and, secondly, that any security bond received should be paid to the bond administrator in accordance with the provisions of s 29(4)(b) of the RTA. Schedule 1 of the RTA required the bond money to be paid within 14 days of receipt into a separate account in the names of the owner and the tenant entitled "tenancy bond account".
Deposit of Instalments of Security Bond
The evidence established that the first and fourth defendants adopted a practice of depositing with the bond administrator only the full amount of the bond when paid. In the event that the bond is paid by instalments, the first and fourth defendants wait until the full amount has been received before the deposit is made. A question therefore arises whether the first and fourth defendants were in breach of orders 12 and 23 respectively of Hasluck J's orders by waiting until the full amount of the security bond had been paid before paying it to the bond administrator.
In the case of Ms Mosha's bond, the evidence certainly established that the bond was paid in instalments. The rental history record revealed payment of $165 on 16 December 2005 and a further payment of $735, which the first defendant said he received on 23 December 2005. The evidence established that the full amount of the bond was not lodged with the administrator until 2 June 2006. The first defendant's contention was that as he had not received the bond in full until 23 December 2005, he had no obligation in any event to lodge the bond with the administrator until 14 days after that date.
A "security bond" is defined in s 3 of the RTA to mean an amount payable by a tenant as security for the performance of his obligations under a residential tenancy agreement. There is no indication in the RTA whether receipt of an instalment of a security bond is required to be paid to the bond administrator within the 14‑day period, or whether a person can wait until he or she has received full payment of the bond before depositing it.
There is much to be said for the latter interpretation. If a bond was paid by a number of different instalments, it would, in my view, impose an unnecessary burden upon the recipient to have to pay every amount to the bond administrator with an appropriate "Form 1 record" for each payment. It is certainly arguable that the recipient of bond moneys can wait until full payment before it is necessary to deposit the full amount with the administrator.
For this reason, I do not conclude that the first or fourth defendants were required, pursuant to the orders of Hasluck J, to deposit the first $165 received on 16 December 2005 within 14 days of that date.
The Receipt
The plaintiff contends that the first and fourth defendants failed to give Ms Mosha a receipt in respect of the security bond moneys as required by s 29(4)(a) of the RTA.
Section 29(4)(a) provides:
(4)A person who receives a security bond paid in relation to a residential tenancy agreement -
(a)shall forthwith give or cause to be given to the person paying the bond a receipt specifying the date on which the bond was received, the name of the person paying the bond, the amount paid and the premises in respect of which it is paid;"
As I have previously pointed out, the first defendant contended that, on 12 January 2006, he made out a receipt to Ms Mosha for $900, being the full payment of the bond on the unit at Colin Grove. He vacillated somewhat on this issue, but appears to have contended that the $765 he received on 23 December 2005 made up the full amount of the $900 bond.
When the first defendant sent to the bond administrator details of payment of Ms Mosha's bond on 2 June 2006, he annexed a sheet of paper on which were written the following words and figures:
On any view of it, this does not tally with the evidence of the first defendant either in his affidavits, or on oath. His explanation was that he had made an error in the calculations. They are certainly at odds with what is contained in his affidavit evidence, but one thing is certain, and that is that Ms Mosha paid the bond by instalments with the final payment on 23 December 2005. The first defendant swears that he sent a receipt for the full amount of $900 on 12 January 2006 and it was in the following terms:
"J. Mosha
Nine hundred dollars
Being for Bond payment for
Rm. 2 8/11 Colin Grove
West Perth
(Initialled)$900"
In view of the evidence of the first defendant on this point, I am not prepared to find beyond reasonable doubt that he did not send the receipt. Ms Mosha contended that she did not receive it, but that does not mean that it was not sent. The receipt was out of sequence in the receipt book, but I am not persuaded beyond reasonable doubt that there was a complete failure to send a receipt.
Accepting the first defendant's evidence that he did send the receipt, he did not send it until 12 January 2006, which was 20 days after the date upon which it had been received. The obligation was to send it forthwith. On a strict interpretation of orders 12(i) and 23(i) of the orders of Hasluck J made on 27 October 2005, it was the obligation of the first and fourth defendants to ensure that the receipt was sent on the very day the money was received; namely, 23 December 2005. It was 20 days late. It was, of course, the Christmas‑New Year period and one can well imagine that it might have taken until 12 January for the first defendant to get around to the sending of a receipt. However, the orders of Hasluck J make no allowance for that. To the extent that the written receipt of 12 January was not sent until that date, it was not a receipt sent forthwith after payment.
However, counsel for the first and fourth defendants relies on the fact that as each deposit was made by Ms Mosha, it was paid either into what is termed in par 25 of the first defendant's affidavit of 9 August 2006 "the defendant's bank account" (by which I assume is meant the fourth defendant's bank account) or to the first defendant personally. The payment, made to the bank account, was the subject of a bank stamp in Ms Mosha's deposit book "as being receipted" and each payment when made personally to the first plaintiff was receipted. In par 28 of the first defendant's affidavit of 1 September 2006, he states that "each time Ms Mosha gave me cash for either rent or bond monies, I signed her deposit book as being receipted".
It follows that the first defendant is saying that all moneys were the subject of immediate receipt either by himself when he received cash, or by the bank. These receipts were said to be notated in Ms Mosha's deposit book.
Ms Mosha was cross‑examined on the issue, and it was put to her that each time she made a payment, the first defendant gave her a receipt. The following are the relevant questions and answers (T 44 ‑ 45):
"Is it the fact that each time my client gave you cash for either a bond, bond moneys or bank, that he in fact signed your deposit book as being receipted?‑‑‑Just once.
Just once?‑‑‑Yes.
Do you have the deposit books at hand?‑‑‑No.
When was the one time that you say that that happened? ‑‑‑When I paid him $756, that was the balance for the bond.
MILLER J: Just repeat that. It happened once when you paid $700?‑‑‑$765.
Yes?‑‑‑That was the amount still owing on the bond money.
On the bond money?‑‑‑Yes.
So the proposition you're putting, Mr Galic, is she had a rent book? What was the proposition that you were putting, that it was a rent book? Whose rent book was it? Who had it?
GALIC, MR: It was hers.
MILLER J: It was yours?
GALIC, MR: I am suggesting that she had own her [sic her own] bank deposit book and my client receipted that each time she made a payment, that's the proposition?‑‑‑No.
But you say he did it once?‑‑‑He did it once, yes."
No deposit book was tendered at the hearing, but if in fact all payments of bond moneys made by Ms Mosha were receipted by the first defendant or by the bank on his behalf in her deposit book, then the first defendant (and therefore the fourth defendant) did give to Ms Mosha a receipt forthwith upon payment of all instalments of money which made up the security bond.
In the absence of the deposit book, and having regard to my dissatisfaction with Ms Mosha as a witness, I am unable to be satisfied beyond reasonable doubt that the first defendant did not make out a receipt in the deposit book on each occasion upon which a payment was made. If he did, then, in my view, he satisfied the requirements of the orders 12 (i) and 23(i) of Hasluck J.
The orders of Hasluck J seem to be predicated upon receipt of a lump sum by way of security bond. They do not take account of the way in which security bonds were paid in a somewhat haphazard way to the first and fourth defendants in many tenancies and certainly in relation to Ms Mosha. It is sufficient to say that any ambiguity about the matter should be resolved in favour of the first and fourth defendants, who are the respondents to a summons for contempt of court. Contempt of court being criminal in nature, I should be slow to find contempt on the part of the first or fourth defendants in circumstances where there is doubt about the matter.
Whilst there is no doubt that the first and fourth defendants failed "forthwith" to give a receipt to Ms Mosha for the $900, but only sent it 20 days after the final payment of $765, the evidence in relation to immediate receipts in Ms Mosha's deposit book is such that I am not satisfied beyond reasonable doubt that there was no receipt issued forthwith after the payment of $165 and $765.
Deposit of the Bond
The security bond moneys were not lodged with the bond administrator within the required period, but the defendant has given an explanation as to why the bond moneys were deposited approximately six months after their receipt.
I am satisfied that the evidence of the first defendant and that of Mr Kamil on the issue of the "lost file" is truthful. That of Mr Kamil was not even challenged. The result is that there was an oversight in relation to the lodgement of the bond moneys which is explicable, having regard to the evidence I have heard.
However, the question remains whether, explicable or not, the failure to lodge the bond money by the first and/or fourth defendants is in breach of orders 12(ii) and 23(ii) of the orders of Hasluck J of 27 October 2005. They required that the bond administrator be paid the security bond paid by Ms Mosha in accordance with the provisions of s 29(4)(b) of Sch 1 of the RTA; namely, payment within 14 days of the receipt of the bond.
The full amount of the bond was received by 23 December 2005. The bond was not lodged until 2 June 2006. The first and fourth defendants were justified in delegating to a real estate agent the obligation to lodge the security bond of Ms Mosha with the bond administrator, but on no view of it was a clear instruction given by the first defendant to Mr Kamil to do that. Mr Kamil's evidence is that he informed the first defendant that if his firm was interested in taking on the responsibility for the various rental properties, all "necessary" adjustments would be made on his behalf.
What the first defendant should have done was ensure that the full amount of the bond was paid to the bond administrator no later than 14 days after 23 December. Again, it was the Christmas period, but the 14‑day period would have allowed for the payment to be made.
I accept that there is a reasonable explanation for the fact that the matter did not come to the attention of the first defendant for some time after the files had been left with Mr Kamil in "January or February 2006", but it would seem that, by the time the first defendant approached Mr Kamil, the time had either elapsed, or was about to elapse, pursuant to which he was required to pay the bond to the bond administrator. That he should have done, irrespective of his approach to Mr Kamil.
Mr Kamil lost the file of the first defendant, and it was not found again until "mid to late May 2006". The first defendant did make in inquiry about it in March 2006, and it appears that the first defendant did also call the bond administrator after Ms Mosha had vacated the premises to inquire whether the bond had been lodged. He was informed that it had not been lodged. He searched for the folder, but was unable to find it, and really nothing happened until Mr Kamil returned the file in May 2006. To his credit, the first defendant appears to have then lodged the bond with the bond administrator within the time required; namely, within 14 days of receiving the papers from Mr Kamil. However, the fact remains that approximately five months expired during which no bond was lodged. To that extent, orders 12(ii) and 23(ii) of the orders of Hasluck J were not complied with in this instance.
I interpolate that Hasluck J did not envisage, in the orders he made, payment of bond money by instalments, and I have concluded that, in all the circumstances, the first and fourth defendants could not have been in breach of Hasluck J's orders had the full amount of the bond been paid to the bond administrator within 14 days of 23 December 2005.
Counsel for the plaintiff contended that there had been a contumacious disobedience on the part of the first and fourth defendants to orders 12(ii) and 23(ii) of the orders of Hasluck J. However, the word "contumacious" means what has been termed "a perverse and obstinate resistance to authority". The following passage from the judgment of Sir John Megaw in Re Jokai Tea Holdings Ltd [1993] 1 All ER 630 at 641 sets out the meaning of the word "contumacious" for the purpose of these proceedings:
"The noun 'contumely', as defined in the Shorter Oxford English Dictionary, reflecting, I believe, the sense in which it would ordinarily be understood, is 'Insolent reproach or abuse'. The conduct of the defendants, having regard to all the circumstances, could not be described as 'contumelious'. With all respect, it seems to me that the word 'contumacious' would be more apt than 'contumelious' in the passages in Lord Diplock's discussion of the effect of failure to comply with a peremptory order in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 1 All ER 543 at 556, [1968] 2 QB 229 at 259 and in Birkett v James [1977] 2 All ER 801 at 807, [1978] AC 297 at 321. 'Contumacy' means 'Perverse and obstinate resistance to authority'. Surely it is that characteristic, not 'insolent reproach or abuse', which is a frequent hallmark of a litigant's failure to comply with a peremptory order?"
I am quite unable to conclude in this case that the behaviour of the first or fourth defendant could be categorised as contumacious in the sense of a perverse and obstinate resistance to authority. Attempts by counsel for the plaintiff to paint the first defendant (and therefore the fourth defendant) as somebody intent upon disobeying court orders and therefore "contumaciously" in breach of the orders of Hasluck J did not succeed.
The failure to pay Ms Mosha's bond to the bond administrator was, in my view, an inadvertent failure on the part of the first and fourth defendants. The fact remains, however, that the first and fourth defendants are in breach of orders 12(ii) and 23(ii) of the orders of Hasluck J.
Conclusion
Because proceedings for contempt are criminal in nature and must be proven beyond reasonable doubt (not "a reasonable doubt" as stated in Seaman's commentary) the standard of proof before a civil contempt can be found is very high.
In the present case, I am not satisfied beyond reasonable doubt that the plaintiff has established contempt of court on the part of the first and fourth defendants, by disobedience of the orders of Hasluck J made in orders 9 and 20. Nor am I satisfied t the requisite standard that there has been contempt in relating to disobedience of orders 12(i) and 23(i).
In reaching this conclusion, I take account of the totality of the evidence. I am not satisfied beyond reasonable doubt that Ms Mosha was a truthful witness in relation to the assertion she made about the representations which the plaintiff contends were in breach of orders 9 and 20, and thus I am unable to find any contempt on the part of either the first or fourth defendants in that regard. Nor am I satisfied beyond reasonable doubt that she was truthful in relation to the issue of receipts for bond payments.
The first and fourth defendants have breached orders 12(ii) and 23(ii) of the orders of Hasluck J. However, there has been no deliberate defiance by the first and fourth defendants of those orders and, having regard to the circumstances which I have outlined, I do not consider the contempt to be of particular gravity. That is because there is clear evidence that the first defendant left it to Mr Kamil to consider whether his firm would take over the responsibility for the various rental properties of the defendants. It was expected that he would do so and would lodge the appropriate documents and moneys with the bond administrator. However, just how that was to be done was never really discussed and the first and fourth defendants were remiss in leaving the matter in abeyance. The first defendant did ring the bond administrator to see whether the bond had been paid in, but found that it had not been. It was not until 2 June that the bond administrator received the amount of the bond. In truth, the bond should have been paid by the first defendant on behalf of the fourth defendant within 14 days of 23 December irrespective of whether or not administration of the rental properties was to be taken over by Mr Kamil's firm.
Further, the gravity of the breaches is lessened by reason of the fact that the full amount of the security bond was ultimately paid to the bond administrator.
0
5
2