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Hera Project Pty Ltd v Bisognin

Hera Project Pty Ltd v Bisognin

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Case Copied 19 July 2019 50 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2018 02233

HERA PROJECT PTY LTD (ACN 163 685 041)	Plaintiff
v
GINO ANDREW BISOGNIN	First Defendant
and
LEAH JOAN BISOGNIN	Second Defendant

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JUDGE:	CHAMPION J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2019
DATE OF JUDGMENT:	19 July 2019
CASE MAY BE CITED AS:	Hera Project Pty Ltd v Bisognin
MEDIUM NEUTRAL CITATION:	[2019] VSC 483

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CONTEMPT OF COURT – Failure to comply with court orders – Continued non-compliance – Defendants failed to attend trial – Defendants self-represented – Contempt proven – Deferred determination of penalty – Supreme Court (General Civil Procedure) Rules 2015 rr 66.05, 66.10, 75.06 – Witham v Holloway (1995) 131 ALR 401; Deputy Commissioner of Taxation v Gashi (No 2) [2011] VSC 351; Legal Services Board v Forster (No 2) [2012] VSC 633; CFMEU v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261; Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L. Warren	Russell Kennedy Lawyers
For the First Defendant	No appearance
For the Second Defendant	No appearance

HIS HONOUR:

Introduction

On 11 July 2018 and 9 October 2018, Hera Project Pty Ltd (‘the plaintiff’) applied to the Supreme Court of Victoria for the punishment of Gino Bisognin and Leah Bisognin (‘the defendants’) for contempt of court, pursuant to rr 66.05(1)(a) and 75.06 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). The plaintiff alleges by way of two summonses, that the defendants committed contempt of court by failing to comply with two court orders.

Background

In February 2012, the defendants entered a contract for the sale of their land for $3.6 million (‘the 2012 contract’). The contract was subject to conditions requiring steps be taken to subdivide the land, so that the defendants would keep the northern portion of 1A Adrian Street, Cranbourne, and sell the southern portion for development. In July 2013, the plaintiff was nominated as the purchaser under the contract.[1]
[1]By a Sale of Real Estate Nomination Form dated 26 July 2013, signed by the previous purchaser, Joslin Street SA Developments Pty Ltd.

In October 2013, the plaintiff entered into a lease of the land, which substantially increased its value. Shortly after, the defendants sent a rescission notice to the plaintiff and made numerous attempts to terminate the contract of sale.[2]
[2]Bisognin v Hera Project Pty Ltd [2016] VSC 75, [22]–[31] (‘Bisognin’).

The plaintiff commenced proceedings against the defendants in this Court, seeking an order that the defendants undertake certain steps required for the subdivision of the land, as well as declarations that the purported rescission notice was of no effect and the plaintiff had a sufficient interest in the land to lodge a caveat.

The matter was transferred to the County Court and, following court mediation in November 2014, the defendants and the plaintiff entered terms of settlement. On 13…

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] VSC 483
Decision Date: 19 July 2019

CaseChat Overview and Summary

Hera Project Pty Ltd sought a determination of contempt against Bisognin for failing to comply with court orders. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the defendant's failure to comply with the court's orders constituted contempt of court and, if so, what penalty should be imposed. The court had to consider the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015, as well as several precedent cases concerning contempt of court and non-compliance with court orders.

The court found that the defendants had indeed failed to comply with the court's orders by not attending the trial and providing relevant documents. The defendants had been self-represented throughout the proceedings and were fully aware of the orders they were required to comply with. The court held that contempt was proven based on the defendants' continued non-compliance with the orders. The court deferred the determination of penalty to a later date to allow for further submissions and evidence from both parties. The court referred to relevant precedent cases, including Witham v Holloway, Deputy Commissioner of Taxation v Gashi, Legal Services Board v Forster, CFMEU v Grocon Constructors, and Fortune Holding Group Pty Ltd v Zhang, in reaching its decision.

The court held that the defendants' failure to comply with the court's orders constituted contempt of court. The court deferred the determination of penalty to a later date to allow for further submissions and evidence from both parties. The court ordered the defendants to provide an updated compliance report within 14 days and to attend a further hearing to determine the appropriate penalty. The court emphasised the importance of complying with court orders and the consequences of failing to do so. The defendants were warned that further non-compliance could result in more severe penalties, including imprisonment.

Orders