Kayserian Nominees (No 1) Pty Ltd v J R Garner Pty Ltd

[2008] NSWSC 1011

CITATION:	Kayserian Nominees (No 1) Pty Ltd v J R Garner Pty Ltd [2008] NSWSC 1011
HEARING DATE(S):	31 July 2008
JURISDICTION:	Equity Division Expedition List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	31 July 2008
DECISION:	Court declines to refuse to hear defendant’s application for stay.
CATCHWORDS:	CONTEMPT – where defendant allegedly in contempt for not returning deposit to plaintiff upon plaintiff delivering up possession of property pursuant to Court order – whether Court can hear application by alleged contemnor – whether decision of Court to hear application discretionary – where UCPR, r 36.5 applies – where plaintiff notified defendant of delivery up of possession of property on evening after defendant notified application for stay of order.
LEGISLATION CITED:	(NSW) Uniform Civil Procedure Rules, r 36.5
CATEGORY:	Consequential orders
CASES CITED:	AN v Zhu [2006] FamCA 179; (2006) FLC 93-257 Carter v Roberts [1903] 2 Ch 312 Chuck v Cremer (1846) 1 Coopt Cott 205; 47 ER 820 Fahmi & Fahmi (1995) 19 Fam LR 517 Gilbert v Endean (1878) 9 Ch D 259 Hadkinson v Hadkinson [1952] P 285 KP Cable Investments Pty Limited v Meltglow Pty Ltd (1995) 56 FCR 189 Leaway Pty Ltd v Newcastle City Council (No 2) [2005] NSWSC 826; (2005) 220 ALR 757 Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (1978) 35 NSWLR 365 X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 Young v Jackman (1986) 7 NSWLR 97
TEXTS CITED:	A V Ritchie et al, Ritchie's Uniform Civil Procedure NSW (2005) LexisNexis
PARTIES:	Kayserian Nominees (No 1) Pty Ltd (plaintiff) J R Garner Pty Ltd (defendant)
FILE NUMBER(S):	SC 3528/07
COUNSEL:	Mr H K Insall SC (plaintiff) Mr J E Armfield (defendant)
SOLICITORS:	Hugh & Associates (plaintiff) Patterson Houen & Commins (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Thursday, 31 July 2008

3528/07 Kayserian Nominees (No 1) Pty Ltd v J R Garner Pty Ltd

JUDGMENT (ex tempore)

1 HIS HONOUR: Mr Insall SC for the plaintiff submits that the defendant's application for a stay of the operation of the order that I previously made –for return to the plaintiff of the deposit forthwith upon the plaintiff giving up possession of the land to the defendant – should be not heard, on the basis of what was said by Hutley JA in Permewan Wright Consolidated Pty Ltd v Attorney-General (1978) 35 NSWLR 365, 369, to be a fundamental rule that a party guilty of contempt should not be heard in respect of an application made on his part.

2 His Honour cited Cottenham LC in Chuck v Cremer (1846) 1 Coopt Cott 205; 47 ER 820, where his Lordship said (at 206; 820, emphasis added):

... [he] was not generally entitled to take a proceeding in the cause for his own benefit. That there were exceptions to the last rule, but they were few in number.

3 There is much to be said for the view that the rule to which his Honour referred is in fact discretionary and not absolute [Hadkinson v Hadkinson [1952] P 285, 298 (Denning LJ); X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1, 46-47; Fahmi & Fahmi (1995) 19 Fam LR 517; KP Cable Investments Pty Limited v Meltglow Pty Ltd (1995) 56 FCR 189; AN v Zhu [2006] FamCA 179; (2006) FLC ¶93-257, [74]-[79],[120]]. There is also much to be said for the view that even if the rule is an absolute one, the exceptions to which it is plainly subject [Hadkinson v Hadkinson, 288-9 (Romer LJ); Permewan Wright v Attorney-General, 367 (Reynolds JA), 374 (Mahoney JA)] include the circumstance in which an application is made to stay the operation of the very order in respect of which the contempt is said to have arisen. In Young v Jackman (1986) 7 NSWLR 97, Young J (as his Honour, the Chief Judge in Equity, then was) was greatly attracted to the fact that the rule was discretionary, but ultimately decided that in New South Wales it was an absolute rule until the Court of Appeal otherwise determined (at 101-102). In Leaway Pty Ltd v Newcastle City Council (No 2) [2005] NSWSC 826; (2005) 220 ALR 757, Campbell J (as his Honour then was) appears to have left open whether the rule is discretionary or not (at [59]).

4 I should not, on an application of this type, in the short confines in which it has to be determined, depart from what the Chief Judge has said, without much closer consideration than is now possible. But in my view, I am not required to do so: I am relieved of that course by at least two circumstances. The first is the effect of (NSW) Uniform Civil Procedure Rules, r 36.5, which provides that if an order requires a person to do an act forthwith on a specified event, the Court may by order require the person to do the act within a specified time. As the annotation to that rule in Ritchie's Uniform Civil Procedure NSW points out (at [36.5.5]), while an omission to fix the time does not make the order ineffectual, until it is fixed by a subsequent order, it is unenforceable (at least by committal or sequestration). [Gilbert v Endean (1878) 9 Ch D 259; Carter v Roberts [1903] 2 Ch 312]. This was an order which required the defendant to do an act forthwith on a specified event, namely upon the plaintiff giving up possession of the premises. The defendant would not be liable to be dealt with for contempt, unless and until the Court had, by order pursuant to r 36.5, fixed a time for compliance with the order.

5 Secondly, before the time for compliance with the order arrived, the defendant had sought the plaintiff's consent to a stay, and indicated that if that consent were not forthcoming by 28 July it would apply for such a stay. Consent was not forthcoming, and although a formal Notice of Motion for a stay was not then filed, arrangements were made with my chambers that day for the relisting of the matter today to consider an application for a stay. Only at 5.55pm that evening did the plaintiff formally communicate its delivery up of possession that day and demand return of the deposit.

6 An application for a stay having, in effect, been notified prior to the trigger for performance of the order by which the defendant was bound, it seems to me that the Court would not in those circumstances regard the defendant as in contempt. In any event, I am not plainly satisfied on a prima facie basis that the defendant should be regarded as in contempt.

7 In those circumstances, I decline to refuse to hear the defendant's application.

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