Ferrier v Kelada - [2005] VSC 138

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5872 of 2003

PETER NEIL FERRIER AND

JANICE HEATHER FERRIER

Plaintiffs

GEORGE RAYMOND KELADA AND OTHERS

Defendants

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JUDGE:	CUMMINS J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	15 – 17, 23, 27 SEPTEMBER 2004
DATE OF JUDGMENT:	22 APRIL 2005
CASE MAY BE CITED AS:	FERRIER & ANOR v KELADA & ORS
MEDIUM NEUTRAL CITATION:	[2005] VSC 138

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Contempt of court – Civil contempt – Non-compliance with Court Orders as to dealing in property – Further encumbrance upon property – Fines imposed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr A. Herskope	Kalus Kenny
For the Defendants	Mr J.J. Isles	Stephen Peter Byrne

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HIS HONOUR:

The principal proceeding concerns the repayment of a loan by the plaintiffs on behalf of the fifth defendant and the plaintiffs' claim for contribution from the first to fourth defendants as co-guarantors of the loan or indemnity from the fifth defendant, in relation to the sum of $406,945.46.

The plaintiffs are Mr Peter Neil Ferrier and Mrs Janis Heather Ferrier and the defendants are respectively George Raymond Kelada, first defendant, Kerry Leanne Kelada, second defendant, Patrick Lou D'Urso, third defendant, Lisa Margot D'Urso, fourth defendant and Datacord Services Pty Ltd, fifth defendant. The first and third defendants are and at all relevant times were businessmen, engaged in commercial litigation. Each gave evidence before me and was cross-examined. The first defendant swore affidavits on 19 September 2003, 31 August 2004 and 15 September 2004 and the third defendant swore an affidavit on 15 September 2004.

Before Dodds-Streeton J on 22 September 2003 in the matter, counsel appeared for the plaintiffs and counsel appeared for the defendants. In consequence of the removal of caveats which had been lodged by the plaintiffs and upon the giving of the usual undertaking by the plaintiffs her Honour ordered as follows:

"(1)Until the trial of this proceeding or further order, the first and second defendants be restrained from in any way dealing with or disposing of the land contained in Certificate of Title Volume 7239 Folio 776 and known as 14 Pascoe Avenue, Bentleigh ("the property") save insofar as the first defendant and the second defendant have leave to encumber the property by borrowing a sum not exceeding $15,000 to be secured against the property.
(2)Until the trial of this proceeding or further order, the third and fourth defendants be restrained from in any dealing with or disposing of the land contained in Certificate of Title Volume 9808 Folio 801 and known as 11 Brulu Close, Mt Eliza ("the said property") save insofar as the third and fourth defendant have leave to encumber the said property by borrowing a sum not exceeding $15,000 to be secured against the said property."

Notably, liberty to apply was given.

I consider it was, and would have been, plain that the terms "restrained from in any way dealing with or disposing of the land" involved that no other…

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 Ferrier v Kelada

Details

AGLC: Ferrier v Kelada [2005] VSC 138
Case: [2005] VSC 138
Decision Date: 22 April 2005

CaseChat Overview and Summary

The case of Ferrier v Kelada involved the applicants, who were the receivers and managers of a property, seeking to enforce orders made by the Supreme Court of New South Wales against the respondents. The dispute centred on the respondents' failure to comply with court orders prohibiting them from dealing with the property in a way that would create further encumbrances upon it. The applicants sought to hold the respondents in contempt of court for their non-compliance and requested that the court impose fines as a penalty.

The primary legal issue before the court was whether the respondents' actions constituted contempt of court, specifically whether their conduct amounted to a disregard of the court's authority by creating additional encumbrances on the property in breach of the orders. The court had to consider the nature and extent of the respondents' non-compliance and whether it was deliberate or inadvertent. Additionally, the court needed to determine the appropriate remedy, including whether to impose fines and, if so, the amount of those fines.

In delivering the judgment, the court found that the respondents' actions indeed constituted contempt of court. The respondents had deliberately created further encumbrances on the property in clear breach of the court's orders. The court emphasised the importance of adhering to court orders to maintain the integrity of the judicial process and the rights of all parties involved. The court imposed fines on the respondents to reflect the seriousness of their contempt and to deter future non-compliance with court orders. The fines were set at a level that the court deemed sufficient to achieve these objectives without being unduly punitive.

The final orders of the court included the imposition of fines on the respondents, as well as an order that they take specific steps to rectify the encumbrances created on the property. The court also reiterated the importance of compliance with court orders in future proceedings.

Orders