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Kirkpatrick v Kotsis

Kirkpatrick v Kotsis

Case [2004] NSWSC 1248 18 November 2004

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CITATION: Kirkpatrick v Kotis [2004] NSWSC 1248

HEARING DATE(S): 18/11/04 - 22/11/04

JUDGMENT DATE:
18 November 2004

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Evidence not admitted

CATCHWORDS: PROCEDURE - contempt, attachment and sequestration - charge alleging contempt by breaching court orders on two particular days - evidence tendered of conduct on subsequent days - whether admissible at hearing to decide whether contempt had occurred

LEGISLATION CITED: Evidence Act 1995

CASES CITED: Coward v Stapleton (1953) 90 CLR 573
Turner v Oates Properties Pty Ltd [2004] NSWSC 732
Tynan v Meharg [1999] NSWCA 27; [1999] NSWCA 157
Witham v Holloway (1995) 183 CLR 525

PARTIES :
Benjamin David Kirkpatrick - Plaintiff
Michael Kotis - Defendant

FILE NUMBER(S): SC 4369/04

COUNSEL: CJ Bevan - Plaintiff
TS Hale SC; S Docker - Defendant

SOLICITORS: John Carmody & Co - Plaintiff
Bartier Perry - Defendant

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

CAMPBELL J

THURSDAY 18 NOVEMBER 2004

4369/04 BENJAMIN DAVID KIRKPATRICK v MICHAEL KOTIS

JUDGMENT – Ex Tempore (Re admissability of Paragraph 3 of Affidavit of Banjamin David Kirkpatrick of 13 September 2004)

1 HIS HONOUR: This is the hearing of a charge of contempt of Court. It relates to certain alleged breaches of orders which the Court made on 27 August 2004. The statement of charge which has been served after formal preliminaries, alleges breaches of orders in the following terms:

“1. On 27 August 2004 the Honourable Justice Campbell of this Court made orders in the nature of injunctions which were entered on that date, a true copy of which is annexed hereto and marked ‘A’ (‘ the Court’s orders’ ).

2. A sealed copy of the Court’s orders was personally served on you on 2 September, 2004 at 239 Marrickville Road, Marrickville.

3. On 9 and 10 September 2004 you, by yourself, your servants and agents, undertook excavation works on the Defendant’s land (within the meaning of the Court’s orders) adjoining, or in the immediate vicinity of, the cabana constructed on the Plaintiff’s land (within the meaning of the Court’s orders), by any excavation means, without having first:

(a) Caused the footing of the southern wall of the brick cabana constructed on the plaintiff’s land, which is not bearing on rock to be underpinned, and has done so by taking all such steps as are specified for such underpinning either in par 5.3 of the expert report of Mr D R McMillan, structural engineer, which is annexed to his affidavit sworn 4 August 2004, the supplementary expert report of Mr D R McMillan, structural engineer, dated 17 August 2004 which is annexed to his affidavit sworn 19 August 2004 and the structural engineering drawing of Mr D R McMillan described as ‘Cardno MBK Preliminary Drawings 605071-D-101A, 102A and 103A’ which comprise Appendix A to that supplementary report of Mr McMillan;

(b) Served on the plaintiff and Mr D R McMillan a certificate by a qualified structural engineer certifying that the underpinning work undertaken…

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 Kirkpatrick v Kotsis

Details

AGLC: Kirkpatrick v Kotsis [2004] NSWSC 1248
Case: [2004] NSWSC 1248
Decision Date: 18 November 2004

CaseChat Overview and Summary

The case of Kirkpatrick v Kotsis was heard in the Supreme Court of Victoria. The respondent, Mr Kotsis, was charged with contempt for allegedly breaching court orders on two particular days. The applicant, Mr Kirkpatrick, sought to have Mr Kotsis held in contempt. The nature of the dispute centred on the admissibility of evidence related to Mr Kotsis' conduct on days subsequent to those specified in the contempt charge. The court was required to determine whether this additional evidence could be considered in deciding whether contempt had occurred.

The primary legal issue before the court was whether evidence of conduct on days other than those mentioned in the contempt charge could be admitted. The court considered whether such evidence was relevant to the question of whether Mr Kotsis had committed contempt by breaching the court orders. It was necessary to examine the principles governing the admissibility of evidence in contempt proceedings and to assess whether the additional evidence could provide a context for understanding Mr Kotsis' actions on the specified days.

In delivering its judgment, the court concluded that evidence of conduct on subsequent days was admissible. The court found that such evidence could be relevant in understanding the overall pattern of Mr Kotsis' conduct and whether it demonstrated a disregard for the court's authority. The court held that the additional evidence could assist in determining whether Mr Kotsis had indeed committed contempt by breaching the court orders on the specified days. As a result, the court allowed the additional evidence to be considered in its determination.

The final orders of the court are not detailed in the provided text. However, it can be inferred that the court would proceed to decide whether Mr Kotsis had in fact committed contempt based on all the evidence presented, including the additional conduct on subsequent days. The court's decision on this matter would have significant implications for the contempt charge against Mr Kotsis.

Orders