Costello v Courtney

[2000] QSC 67

SUPREME COURT OF QUEENSLAND

CITATION:

Costello v Courtney [2000] QSC 067

PARTIES:

DAMIEN CLYDE COSTELLO (Plaintiff)
and
COLIN GORDON COURTNEY (Defendant)

FILE NO/S:

S10129 of 1999

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

29 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2000

JUDGE:

Wilson J

ORDER:

Application dismissed

CATCHWORDS:

CIVIL PROCEDURE – CONTEMPT – DISOBEDIENCE OF COURT ORDER – Power of Court to punish for contempt – whether strict compliance with the requirements of Uniform Civil Procedure Rules necessary – defendant not served with copy of order – service by post of copy of minutes of order and covering letter – absence of penal notice – adjournment – no notification of new hearing date – whether notification of new hearing date must be personally served

Jolly v Hull English CA; 21 January 2000
Davy International Ltd v Tazzyman [1997] 1 WLR 1256
Chiltern District Council v Keane [1985] 1 WLR 619

Uniform Civil Procedure Rules rr 904, 665, 926

COUNSEL:

Mr SR Hoskins, solicitor, for the applicant plaintiff.

SOLICITORS:

Edwards Lawyers for the applicant/plaintiff.

1. WILSON J: The applicant plaintiff seeks orders that the respondent defendant be committed to prison or alternatively fined for contempt of court in failing to comply with orders made by Fryberg J on 10 January 2000.

1. On 12 November 1999 the plaintiff filed a claim and statement of claim seeking specific performance of an agreement made on 27 August 1999 for the sale by the plaintiff to the defendant of certain land and the nursery and garden centre business conducted on it.

1. On 16 November 1999 the claim and statement of claim were served personally on the defendant. The defendant did not file a notice of intention to defend or defence. On 23 December 1999 the plaintiff filed an application for judgment by default. That application was served on the defendant by post.

1. The application for judgment came before Fryberg J on 10 January 2000. There was no appearance by the defendant. His Honour made the following orders:-

“1.IT IS THIS DAY ADJUDGED AND DECLARED that the contract of sale between the Plaintiff as vendor and the Defendant as purchaser and the Trade Dollar Agreement each made 27 August 1999 ought to be specifically performed and carried into execution.

2.IT IS THIS DAY ADJUDGED AND DECLARED that the Defendant in return for the documents referred to in paragraph 3 hereof do at 10:00 am on 31 January 2000 at the National Australia Bank, Adelaide Street, Brisbane in the State of Queensland pay to the solicitors for the Plaintiff the sum of $430,000.00 together with the sum of $220,000.00 by way of Trade Dollars being the balance purchase moneys due under the said contract adjusted as required by paragraph 4 hereof.

3.AND IT IS THIS DAY FURTHER ORDERED that the Plaintiff at the time and place referred to in paragraph 2 hereof deliver to the Defendant or his solicitor:

(a)any declarations or instruments required by the Office of State Revenue to be made by the…