Josip Duic v Emil Duic

[2012] NSWSC 542

Supreme Court

New South Wales

Medium Neutral Citation:	Josip Duic -v- Emil Duic [2012] NSWSC 542
Hearing dates:	1 May 2012
Decision date:	01 May 2012
Jurisdiction:	Equity Division - Corporations List
Before:	Hammerschlag J
Decision:	That there be issued a warrant for the arrest of the plaintiff, Josip Duic.
Catchwords:	CONTEMPT OF COURT - Plaintiff fails to comply with orders of court to take all necessary steps to enable Registrar General to record the defendant as the registered proprietor of real property - Defendant brings motion for contempt - Warrant issued for plaintiff's arrest to face charge of contempt - Contemnor appears, purges his contempt and apologises - Defendant seeks no relief except costs - order for indemnity costs made
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) Supreme Court Rules 1970 (NSW)
Cases Cited:	Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641 Attorney-General v Hayden (1994) 34 NSWLR 638
Category:	Principal judgment
Parties:	Josip Duic - Plaintiff Emil Duic - Defendant
Representation:	Counsel: R. Gration - Defendant/Applicant Solicitors: Penhall & Co Lawyers - Plaintiff Culas-Netto Solicitors - Defendant
File Number(s):	2011/64779

EX TEMPORE Judgment

1. HIS HONOUR:These are proceedings brought by the defendant who obtained an order on 22 February 2012 by Einstein J (which was entered the following day) requiring the plaintiff, within fourteen days, to take all such steps and execute all such documents as are reasonably necessary or desirable to enable the Registrar General to record the defendant as the registered proprietor of the property being the land known as 2A Mellor Street West Ryde NSW 2114, being the whole of the land comprised in folio identifier B/396928 ("the order").

1. The plaintiff failed to comply with that order. An application by the plaintiff for a stay was dismissed by Ward J on 21 March 2012, against certain undertakings which the defendant gave. The plaintiff has been represented thus far by a solicitor, Mr Penhall.

1. The present Motion, which was filed on 20 April 2012, seeks an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) Pt 40 r 40.7(3) dispensing with the requirement for service of a sealed copy of the judgment of the plaintiff, an order that the plaintiff be found guilty of contempt for failing to comply with the order, that the plaintiff be committed to imprisonment for his disobedience of the order, that a warrant be issued accordingly, and that the Sheriff be directed to bring the defendant before the Court before taking him to the place of imprisonment, and costs.

1. Part 40 r 40.7(3) UCPR states the following:

The sealed copy of the judgment must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property:

(a) where the judgment requires the person to do an act within a specified time, if the person fails to do the act within that time, or

(b) where the judgment requires the person to do an act forthwith or forthwith on a specified event, if the person fails to do the act as so required, or

(c) where the judgment requires the person to abstain from doing an act, if the person disobeys the judgment.

1. Appended to the Motion is a Statement of Charge pursuant to Pt 55 r 7 of the Supreme Court Rules 1970 (NSW). The evidence establishes that the plaintiff has failed to comply with the order. I am satisfied on the material before me that the plaintiff knows of the order. After all, he applied for a stay. Also, he has apparently noted an appeal and the present application was served on his solicitor, who still remains on the record.

1. The matter came before the Registrar this morning. The solicitor for the plaintiff was present (so I am informed by counsel for the defendant) and he informed the Court that he had no instructions on the application. The matter was referred to the Duty Judge (at present the Chief Judge in Equity) and her Honour referred the matter on to me.

1. The order which was taken out does not contain the notation which is provided for in UCPR r 40.7(3). I propose to order that that notation be inserted onto the order by the Registrar forthwith, but in addition I am satisfied that this is a case in which I should exercise the power of the Court to arrest the alleged contemnor to secure his attendance to answer the charge and I propose so to do. See Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641; Attorney-General v Hayden (1994) 34 NSWLR 638.

1. I make the following orders:

1. I direct that the Registrar forthwith include in the sealed copy of the judgment a notice naming the plaintiff in accordance with Uniform Civil Procedure Rule Pt 40 r 40.7(3).

1. I order that there be issued a warrant for the arrest of the plaintiff, Josip Duic. I issue the warrant in the form which I have initialled and dated today's date. The warrant is in the following terms: Under the inherent power of the Court I order that Josip Duic be arrested and brought before the Court at Queens Square, Sydney Court 7D forthwith upon his arrest, detaining him, if necessary, in custody in the meantime to answer the charge of contempt stated in the Statement of Charge appended to the defendant's notice of motion filed 20 April 2012.

1. I have initialled the warrant in the form which I have initialled and dated today's date.

1. These orders are to be entered forthwith.

2 may 2012

1. The plaintiff appeared with Counsel and purged his contempt by complying with the orders and apologised. The defendant did not move for any further relief apart from an order for costs. The warrant for the plaintiff's arrest was discharged and he was ordered to pay costs on an indemnity basis.

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