Commonwealth Bank of Australia v Salvato (No.2)
[2013] NSWSC 319
•07 March 2013
Supreme Court
New South Wales
Medium Neutral Citation: Commonwealth Bank of Australia v Salvato (No.2) [2013] NSWSC 319 Hearing dates: 07/03/2013 Decision date: 07 March 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Stand over the hearing of these proceedings to 10.30am on Monday 11 March 2013.
(2) Order the defendant to pay the plaintiff's costs today.
(3) Reserve for consideration on 11 March 2013 the fixing of a gross sum in which such costs order should be made.
(4) Order that all affidavits and other material upon which the defendant relies is to be served by email on the plaintiff's solicitor by midday Sunday 10 March 2013.
(5) Grant leave to the defendant to serve subpoenas to give evidence which are returnable at 10.30am on Monday 11 March 2013 providing that such subpoenas are filed and served by 4pm Friday 8 March 2013.
Catchwords: PRACTICE AND PROCEDURE - Application for adjournment of proceedings against a charge of contempt of Court. CONTEMPT - A charge of contempt of Court ought be dealt with promptly - A reasonable delay in proceedings does not undermine a charge of contempt of Court. Texts Cited: Supreme Court Rules 2005 Category: Procedural and other rulings Parties: Commonwealth Bank of Australia (P1)
CBFC Ltd (P2)
Mimmo Salvato (D)Representation: Counsel:
D A McLure (P1)
P Nagle (D)
File Number(s): 2011/143979
EX TEMPORE Judgment
This is an application for adjournment of proceedings which have been brought by the Commonwealth Bank of Australia against Mr Mimmo Salvato alleging that he is in contempt of Court.
On 8 February 2013, the Bank filed a notice of motion in which it sought the following orders, which I have anonymised in accordance with the Court's privacy policy:
(1) that the defendant [Mr Salvato], be found guilty of contempt of Court in that in disobedience to the undertaking he proffered to the Court on 3 December 2012, he failed to give possession of a property at Vaucluse:
(a) by vacating the property and
(b) by handing over the keys to the first plaintiff (or as it directs) by 3.30pm on 21 December 2012.
The notice of motion seeks, pursuant to Part 55 r 13 of the Supreme Court Rules that Mr Salvato be punished by committal to a correctional centre or the imposition of a fine or both.
On 20 February 2013, because the Bank had been unable to effect personal service on Mr Salvato, the Court made orders for service of the documents by a number of different means on Mr Salvato.
Service was effected through each of these means on Mr Salvato.
In particularly, I am satisfied that, on 25 February 2013, a text message was sent to Mr Salvato, in accordance with the order of the Court of 20 February 2013, in the following terms:
"Court documents have been served by Commonwealth Bank of Australia on Mimmo Salvato by leaving the documents at Coopers Law firm level 2, 24 Double Bay, NSW and sending them by email to [email protected]".
The facts before me also establish that on 2 March 2013, a further text message was sent to Mr Salvato's mobile telephone which was to the effect that proceedings by the Bank for contempt of court were on foot and listed before the Court on 4 March 2013. On that date an order was made that the proceedings be referred to me for hearing today.
On 4 March 2013, Mr Loxton of counsel, who previously appeared for Mr Salvato, appeared before the Registrar as a matter of courtesy to the Court to inform the Registrar that although he had previously been briefed, the solicitors who were acting had filed a Notice of Intention of Ceasing to Act as solicitors for the defendant. Accordingly, he was no longer briefed.
When the matter was called, for hearing, this morning at 10.30am there was no appearance by Mr Salvato or anyone on his behalf. At about 10.45am Mr Nagle of counsel, instructed by Hancocks Solicitors, appeared for Mr Salvato. The Court was informed that Mr Nagle had only been provided with the brief this morning and had not had an adequate opportunity to speak to, and obtain instructions from, Mr Salvato.
The Court adjourned for a short period of time. When it resumed Mr Salvato was present and Mr Nagle made an application for an adjournment. He informed the Court of the instructions upon which he based his application.
Counsel for the Bank submitted that having regard to the nature of the matter, it would be inappropriate for the Court to consider such an application in the absence of evidence. It was clear from his submissions that there were matters that were being put by Mr Nagle on the basis of his instructions with which the Bank took issue.
I indicated to Mr Nagle that, in those circumstances, I would not be prepared to consider or finalise in his favour the application for an adjournment without having sworn evidence in support of it. I adjourned the matter until later in the day.
Upon resuming the hearing, Mr Nagle sought, and was granted, leave to file in Court an affidavit of Mr Salvato of 7 March 2013. Mr Salvato has been cross-examined upon the contents of that affidavit.
From the agreed facts I am satisfied that, at least on 2 March 2013, and probably earlier, Mr Salvato was aware that there were proceedings for contempt in Court and that he was aware, at least at that time, if not earlier, that his former solicitor, Mr Shacklady, had received documents relevant to those proceedings.
It appears from Mr Salvato's evidence that only recently he sought assistance from his brother to obtain legal representation, and that the first time he met his current solicitors and counsel was this morning, 7 March 2013. It seems that Mr Salvato's brother spoke to Mr Hancock for the first time yesterday in order to arrange, so I infer, for representation today.
The proceedings for contempt arise out of an undertaking given by Mr Salvato to the Court on 3 December 2012. It is unnecessary to set out all of the terms of that undertaking but it does not seem to be in issue before me that Mr Salvato gave the undertaking, nor does it seem to be an issue that the terms of the undertaking were capable of being understood.
The undertaking given by Mr Salvato was relevantly in these terms,
"If the contract does not settle on or before 21 December 2012 at 3pm, I will then give possession of the property by vacating it and handing over the keys to the plaintiff or as it directs by 3.30pm on 21 December 2012".
There is a factual issue as to whether Mr Salvato is in breach of the undertaking. It seems to be his contention that from 4 December 2012, or thereabouts, he has not resided at the property. It seems also to be in issue whether Mr Salvato has made any, and if so what, attempt to comply with the undertaking by returning his key to the property to the Bank by giving it to his solicitor.
These two issues raise relatively simple factual questions. On the one hand, Mr Salvato deposes that he has not resided at the property since before 4 December 2012 and no doubt relies upon that to evidence the fact that he has vacated the property. That is either correct or not. It is unnecessary and inappropriate for me to determine that fact on this application, but it is a relatively simple question.
The second question of fact is whether he did or did not give the keys to the property to his lawyer, Mr Shacklady, and, if so, with what instructions. Again, this is a relatively simple question of fact. It emerges from cross-examination, and there seems to be no doubt about it, that Mr Shacklady is present in Sydney carrying on his practice at Double Bay and was at least available today on short notice on the telephone, for a conference with Mr Nagle.
The application for adjournment is one for at least seven days. Mr Nagle puts that he has only been recently instructed, that the proceedings are serious in their nature and in their potential consequence for his client, that there is evidence that he wishes to adduce from his client, from Mr Shacklady and his client's brother, and perhaps others, to support his client's version of the facts as to whether or not he is or is not in breach of the undertaking. He submits that time is necessary to arrange for each of these things to occur.
It is true as Mr Nagle puts it, that these contempt proceedings are serious and it is true, as Mr Nagle puts, that the consequences of contempt proceedings in general are serious as they call for the Court to impose punishment on a person who is held to be in contempt.
Clearly, a person charged with contempt should have a proper opportunity of meeting and dealing with the contempt. But, on the other hand, it is important that proceedings for contempt are heard and decided promptly as contempt involves, amongst other things, disobedience of a court order, and a challenge to the Court's authority.
The fact that Mr Salvato has done nothing since 25 February 2013, or at least 2 March 2013, if not earlier, to secure representation does not stand to his credit or his favour in the consideration of this application. But, on the other hand, I am required to act in considering any application for adjournment, on a basis which accords with the interests of justice.
It seems clear from the evidentiary material which has been read and from Exhibit JL1, which has been tendered, that leaving aside the question of whether there has been any contempt committed by Mr Salvato, the Sheriff has scheduled an eviction of all individuals presently residing in the relevant property for 9.30am on Wednesday 13 March 2013. Counsel for the Bank, accepts that what the Bank seeks with respect to this notice of motion is the punishment of Mr Salvato and the relief which is sought has nothing to do with obtaining possession of the property. That is because the Bank has a judgment for possession, has issued a writ, and the writ will be executed on Wednesday 13 March 2013.
It is a question of determining where the balance lies for the exercise of my discretion. I weigh up the fact that the Commonwealth Bank's motion will not have any substantive consequence or effect upon the obtaining of possession of the property. Its proceedings for obtaining possession of the property are in process and the Sheriff will proceed to do that which is required to obtain vacant possession of the property on Wednesday 13 March 2013.
However, the proceedings being for contempt, which is serious, ought be dealt with promptly and Mr Salvato, having regard to his past lack of diligence and attention to his obligations, should have an adequate but not open ended or luxurious opportunity, to prepare the matter for hearing.
There is undoubtedly a question of wasted costs by reason of this application for adjournment. Although I have not heard from Mr Nagle specifically on that question, is seems to me that if this case is to be adjourned from today that an appropriate costs order can be fashioned to address any question of prejudice to the Bank arising by reason of additional costs.
In all of the circumstances, notwithstanding what seems to be a failure to act promptly from 25 February 2013, or at least 2 March 2013, I am satisfied that there should be an adjournment of these proceedings but I am not satisfied that the period sought by Mr Nagle is what is reasonably necessary to attend to preparation of evidence to deal with the reasonably simple factual issues.
I will adjourn these proceedings to 10.30am, Monday 11 March 2013. I will proceed to a hearing then.
I make the following orders:
(1) I stand over the hearing of these proceedings to 10.30am on Monday 11 March 2013.
(2) I order the defendant to pay the plaintiff's costs today.
(3) I reserve for consideration on 11 March 2013 the fixing of a gross sum in which such costs order should be made.
(4) I order that all affidavits and other material upon which the defendant relies is to be served by email on the plaintiff's solicitor by midday Sunday 10 March 2013.
(5) I grant leave to the defendant to serve subpoenas to give evidence which are returnable at 10.30am on Monday 11 March 2013 providing that such subpoenas are filed and served by 4pm Friday 8 March 2013.
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Decision last updated: 10 April 2013
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