Lane v McConochie
[2006] FMCA 376
•17 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LANE & ANOR v McCONOCHIE | [2006] FMCA 376 |
| BANKRUPTCY – Costs – costs of application to preserve property – application against non-party solicitor. COSTS – Power to order against stranger to application. |
| Bankruptcy Act1966, s.50 Federal Magistrates Court Act 1999, s.79 Federal Magistrate Court Rules 2001, r 21.07 |
| Ames v Trustees of the Birkenhead Docks 20 Beav. 355; 52 ER 630 Hayward v Gifford (1830) 4 M & W 194; 150 ER 1399 Ram Coomar Coondoo v Chunder Canto Mookerjee (1876) 2AC 186 Brown v Farebrother (1888) 58 LJ Ch 3 Seaward v Paterson [1897] 1 Ch 545 EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59 Re: Soloman; Ex parte Reid (1986) 10 FCR 423 Aiden Shipping Ltd v Interbulk Ltd [1986] AC 965 Penning v Steel Tube Supplies Pty Ltd (1988) 18 FCR 568 Knight v FP Special Assets Ltd (1992) 174 CLR 178 Colgate-Palmolive Company And Another v Cussons Pty Limited (1993) 46 FCR 225 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 Fauna Holdings Pty Ltd v Mitchell (2001) 27 Fam LR 81 |
| Applicants: | MORGAN LANE AND MICHAEL GRIFFIN |
| Respondent: | RODNEY O MCCONOCHIE |
| File Number: | BRG660 OF 2005 |
| Judgment of: | Jarrett FM |
| Hearing date: | 13 March 2006 |
| Date of Last Submission: | 13 March 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 17 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ferrett |
| Solicitors for the Applicant: | Spranklin & Co. |
| Counsel for the Respondent Solicitor: | Mr Robinson |
| Solicitors for the Respondent Solicitor: | Toogoods Solicitors |
ORDERS
That Craig Ian Newport pay Morgan Lane and Michael Griffin's costs of and incidental to their application to the Court, including this application as to costs, made on 2 March, 2006, to be taxed on an indemnity basis.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG660 OF 2005
| MORGAN LANE AND MICHAEL GRIFFIN |
Applicant
And
| RODNEY O MCCONOCHIE |
Respondent
REASONS FOR JUDGMENT
This is an application for orders that a person who is not a party to these proceedings, Craig Ian Newport, pay the applicant’s costs of a certain interlocutory application in the proceedings.
The application arises in this way. On 27 October, 2005 the Deputy Commissioner of Taxation presented a creditor’s petition for sequestration of the estate of the debtor Rodney O McConochie. There were difficulties serving the petition on the debtor.
On 1 March, 2006 the petitioning creditor applied for orders pursuant to s.50 of the Bankruptcy Act1966 (“the Act”) that Morgan Lane and Michael Griffin ("the trustees") be appointed as trustees of the debtor’s property. On that day Rimmer FM made the order sought with immediate effect. The operative parts of Rimmer FM’s order are:
1. That Mr Morgan Lane and Mr Michael Griffin of Worrells Solvency and Forensic Accountants be appointed as receivers with respect to the Respondent’s property from 1 March 2006 up to the date that the Applicant’s Creditor’s Petition No BRG 660 of 2005 is finally disposed of in this Honourable Court.
2. That the requirement for payment by the applicant of an estimate of the Trustee’s fees with respect to the appointment be dispensed with.
3. That the specified trustees take control of the property of the respondent until further order.
4. That the trustees open an account with a trading bank in joint names of the respondent and the trustees and arrange that moneys be withdrawn from that account only upon the authority of the trustees or a nominated officer of the trustees.
5. That the trustee furnish to the respondent and to the applicant details of the account within 24 hours of the account being opened.
6. That the respondent deposit to the credit of that account all moneys, cheques, negotiable instruments and other documents and instruments representing money received by the debtor on or after the date of the order for remuneration for services or other income (whether before or after the date of the order of the Honourable Court).
7. That the respondent keep adequate records of all moneys, cheques, negotiable instruments and other documents and instruments representing moneys to which the previous order relates and deliver such records to the trustee whenever required.
8. That the trustee be authorised to make payment from the account for such business and reasonable living expenses of the debtor as the trustee shall approve.
9. That copies of this application and the supporting affidavits be served on the respondent and the respondent’s solicitor.
10. That costs of this application be reserved.
11. That the respondent have liberty to apply to have this matter re-listed urgently upon providing 2 days notice in writing to the solicitors for the applicant and the Court.
The application was otherwise adjourned for further consideration to 29 March, 2006 - the date upon which the creditor’s petition was to be before the Court.
On 2 March, 2006 the matter came before me on the urgent application of the trustees ("the preservation application"). They sought interim injunctive relief. I was informed from the Bar table (which information was subsequently sworn to and is now the substance of the affidavit of Peter Joseph McCartney filed by leave on 3 March, 2006) that:
a)The debtor was the vendor of certain real property situated at Boronia Heights, Queensland;
b)A contract for the sale of the debtor’s property was fixed for settlement at 2.00pm on 1 March 2006;
c)The debtor had a firm of solicitors acting on his behalf in the conveyance;
d)Prior to the time fixed for settlement, the trustees' solicitor, Mr McCartney, informed the debtor's solicitors in a telephone conversation of the trustees' appointment and that he was instructed to act for them. He also informed the debtor's solicitors that he was instructed to take possession of the sale proceeds of the debtor's property;
e)He (Mr McCartney) was instructed to attend at the settlement and to collect the sale proceeds and any deposit held by the vendor's solicitors in their trust account for the trustees;
f)He (Mr McCartney) sent by facsimile to the vendor's solicitors a copy of Rimmer FM’s order appointing the trustees and confirming the matters he had communicated orally;
g)He (Mr McCartney) had a telephone conversation with the debtor’s solicitor Mr Newport wherein Mr Newport advised him that in Mr Newport’s view, Rimmer FM’s order was invalid because it did not specify a date upon which it was to end as required by s.50 of the Act. Mr Newport informed Mr McCartney that he would not hand over the proceeds of sale, nor the deposit monies at settlement as demanded by the trustees;
h)He (Mr McCartney) sent a further demand for the deposit and proceeds of sale by facsimile at 1.50pm on 1 March, 2006;
i)He (Mr McCartney) attended at the settlement at about 2.00pm on 1 March, 2006. He demanded to take possession of the proceeds of sale, but the person present on behalf of the debtor (wrongly identified by Mr McCartney as Mr Newport as it turns out) told him that he would have to “beat him up” to get the cheque;
j)A further written demand for the deposit and the proceeds of sale was made by the trustees by facsimile sent at about 4.30pm on 1 March, 2006;
k)At about 2.30pm on 2 March, 2006 Mr Newport informed Mr McCartney by facsimile that he has released a bank cheque for the proceeds of sale of the debtor’s property and a trust account cheque for the balance of the deposit to the debtor.
On the basis of the foregoing information on 2 March, 2006, I made the following orders in the preservation application:
UPON the applicants giving the usual undertaking as to damages;
AND UPON the applicants’ undertaking to provide a copy of this order to anyone to whom the applicants give notice of the order;
AND UPON the applicants’ undertaking that they will, if this order ceases to have effect, immediately take all reasonable steps to inform in writing anyone to whom they have given notice of this order, or who they have reasonable grounds for supposing may act upon this order, that it has ceased to have effect;
AND UPON applicant’s undertaking by their Counsel to file and serve on all recipients of this order an affidavit deposing to the facts upon which the application for this order is based;
THE COURT ORDERS THAT:
1. Until further order, the respondent must not remove from Australia or in any way dispose of, deal with or diminish the value of any of his assets.
2. Paragraph 1 applies to all of the respondent’s assets whether such assets are in his own name and whether they are solely or jointly owned. For the purpose of this order, the respondent’s assets include any asset which the respondent has the power, directly or indirectly, to dispose of or deal with as if it were his own. The respondent is to be regarded as having such power if a third party holds or controls the asset in accordance with his direct or indirect instructions.
3. This prohibition includes (but is not limited to) the following assets in particular:
(a) any monies paid to him today by Toogoods Solicitors in the last seven (7) days; and
(b) any cheques handed to him today by any representative of Toogoods Solicitors in the last seven (7) days.
4. The costs of the application are reserved.
5. Anyone served with or notified of this order may apply to the Court at any time to vary or discharge this order (or so much of it as affects that person), but that person must first inform the applicant’s solicitors of an intention so to apply. If such a person intends to rely upon any evidence or other material in support of such an application, the substance of it must be communicated in writing to the applicant’s solicitors in advance.
6. To the extent that the respondent is ordered not to do something in this order, the respondent must not do it himself or in any other way. He must not do it through others acting on his behalf or on his instructions or with his encouragement.
7. This injunction does not prevent any bank from exercising any right of set off it may have in respect of any facility which it gave to the respondent before it was notified of this order.
8. A copy of this order be served forthwith on the solicitors for the respondent.
I stood the application over to 12.00pm 3 March, 2006. At that time, Mr Newport appeared on his own behalf because the solicitors for the trustees had put him on notice that they would seek the costs of the application from him. The debtor did not appear. I made an order for the arrest of the debtor pursuant to s.78(1)(b) of the Act. The trustees sought an order that Mr Newport pay their costs of and incidental to the application before me on 2 March, 2006. I adjourned that application to 13 March, 2006.
On 13 March, 2006, Mr Newport appeared by Counsel and the trustees appeared by Counsel. Mr Newport relied upon affidavits sworn by Rachel Maree Ashmead, Andrew John Taylor and by Mr Newport. Mr Newport swears:
2. My firm acted on behalf of Rodney Owen McConochie in the sale of property situated at 14 Simone Street, Boronia Heights in the State of Queensland occurring on 1 March 2006 at approximately 2pm.
3. Andrew John Taylor and Rachel Maree Ashmead, both solicitors employed by me attended at the settlement.
4. After receiving a copy of the order of Magistrate Rimmer made on 1 March 2006, I read it carefully and formed the view that it was not directed to me but was directed solely to receivers and trustees on one hand and Mr McConochie on the other. In forming this view, I examined the provisions of the Bankruptcy Act and Regulations.
5. In retrospect and with the benefit of further advice, I now recognise that my opinion was wrong but at the time I honestly believed that the order did not affect me as a third party at all. Consistently with the opinion I then held, I believed that I should advise my client, Mr McConochie, of his obligations in terms of the order but could not reach him by phone on 1 March 2006. For my part, I honestly believed that I was obliged to act upon his instructions.
In relation to the conversations between Mr McCartney and Mr Newport sworn to by Mr McCartney in his affidavit filed by leave on 3 March, 2006 (the substance of which I have set out above), Mr Newport swears:
6. …
The conversation referred to by Mr McCartney occurring at or about 1.25pm on 1 March 2006 also consisted of the following exchanges:
(a) I confirmed that my firm had received a copy of the Order but no material as specified in the Order and I asked for it.
(b) He said that he did not have the material referred to in the Order and that it was with the ATO.
(c) I told Mr McCartney that I was unable to contact my client and that my instructions were to take my client’ s share of the settlement monies at settlement and give them to him.
(d) He said that under the Order all monies were to go to him.
(e) I said that the Order was not directed to me and that in the absence of it being so that I would reserve my client’s rights and take the cheques.
(f) I also said on the face of it that the Order was not compliant with Section 50 as there was no date listed for the Order and no material had been served.
(g) He said he would get some instructions and get back to me.
Mr Newport does not dispute that at settlement the cheque for the proceeds of sale of the debtor's property was not given to the trustees (a representative of whom had attended settlement). That cheque, together with a trust account cheque for the balance of the deposit held by Mr Newport in his trust account was given to the debtor on 2 March, 2006.
The Law
Section 79 of the Federal Magistrates Court Act 1999 ("the FMC Act") confers jurisdiction to make orders for costs in the following terms:
79 Costs
(1) This section does not apply to family law or child support proceedings.
Note: See section 117 of the Family Law Act 1975 in relation to family law or child support proceedings.
(2) The Federal Magistrates Court or a Federal Magistrate has jurisdiction to award costs in all proceedings before the Federal Magistrates Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Magistrates Court or Federal Magistrate.
Having regard to the wide terms of s.79 of the FMC Act and to the decisions of the High Court of Australia in Knight v FP Special Assets Ltd (1992) 174 CLR 178 and Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184, I am satisfied that this Court has jurisdiction to make orders for costs against persons who are strangers to the litigation before the Court. Such an approach is also consistent with the decision of the House of Lords in Aiden Shipping Ltd v Interbulk Ltd [1986] AC 965 at 979. The jurisdiction is plainly a wide statutory jurisdiction conferred by the FMC Act.
Part 21 of the Federal Magistrate Court Rules 2001 (“the FMC Rules”) makes provision for applications for cost. Of particular interest is rule 21.07. That rule is in the following terms:
21.07 Order for costs against lawyer
(1) The Court or a Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:
(a) to be incurred by a party or another person; or
(b) to be thrown away;
because of undue delay, negligence, improper conduct or other misconduct or default.
(2) A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:
(a) to attend, or send another person to attend, the hearing; or
(b) to file, lodge or deliver a document as required; or
(c) to prepare any proper evidence or information; or
(d) to do any other act necessary for the hearing to proceed.
(3) An order for costs against a lawyer may be made on the motion of the Court or Registrar, or on application by a party to the proceeding or by another person who has incurred the costs or costs thrown away.
(4) The order may provide:
(a) that the costs, or part of the costs, as between the lawyer and party be disallowed; or
(b) that the lawyer pay the costs, or part of the costs incurred by the other person; or
(c) that the lawyer pay to the party or other person the costs, or part of the costs, that the party has been ordered to pay to the other person.
(5) Before making an order for costs, the Court or Registrar:
(a) must give the lawyer, and any other person who may be affected by the decision, a reasonable opportunity to be heard; and
(b) may order that notice of the order, or of any proceeding against the lawyer be given to a party for whom the lawyer may be acting or any other person.
Although the applicant and the respondent referred to this rule in argument, I am of the view that it has limited application in the present case. Arguably, (and I have not had the benefit of full argument on the point) FMCR21.07 applies to lawyers for parties who are acting for a party to proceedings before this Court. The rule is not in terms limited in that way, but it may be a necessary implication arising from the terms of the rule. Because I have not had the benefit of full argument on the point, I prefer to decide the issue according to the principles set out below.
In Knight v FP Special Assets Ltd (1992) 174 CLR 178 both the majority (Mason CJ and Deane J, with whom Gaudron J agreed) and McHugh J (in dissent) referred to what Dawson J referred to at 193 as the “conventional view” about the power to order a stranger to a suit to pay the costs of some or all of it. That view was that, save for certain limited categories of cases, the power to award costs was limited to awards against the parties to the proceedings then before the Court.
One of those limited categories of cases where the Court could always order costs against a person not a party to proceedings was in the case of a person found to have committed a contempt. Such an exception to the conventional rule was recognised as long ago as Hayward v Gifford (1830) 4 M & W 194; 150 ER 1399. In that case Lord Abinger said at ER 1400:
If we were at liberty to consult equity and justice, we should probably make this rule absolute. But the authority of the Courts at Westminster is derived from the Queen’s writ, directing them to take cognisance of the suits mentioned in the writs respectively, and thus bringing the parties before them. This being so, they have no power to order any particular individual to come before them at their pleasure. In the present case, if it could have been shown that Spencer had committed any contempt of Court, or been guilty, in respect of this suit, of any thing in the nature of barratry or maintenance, it would have been another matter; but we cannot make any order against an individual who is not party to any suit before us, nor has been guilty of any contempt, but merely because he has an interest in the event of the suit.
Ordering a person found to have committed contempt to pay costs was an exercise of the court's summary jurisdiction to punish for contempt. In Ram Coomar Coondoo v Chunder Canto Mookerjee (1876) 2AC 186 at p212, the Judicial Committee of the Privy Council pointed out:
The instances in which persons other than parties to the suit have been held liable to costs in England, have been principally those of solicitors, over whom the Court exercises disciplinary jurisdiction, as in the case of In re Jones. The Courts have also ordered the real parties to pay the costs in actions of ejectment, originally on the ground that that action was in form a fictitious proceeding, and having once assumed this power they have continued to exercise it in the actions substituted for that of ejectment. Again, the Courts, it has been said, would so interfere in case of any contempt or abuse of their proceedings: see Hayward v. Gifford. But all these cases relate to applications either in the cause itself, or to the summary jurisdiction of the Court.
(footnotes omitted)
A receiver appointed by the Court is an officer of the court. Interference with a Court appointed receiver is contempt. Of the position of a receiver appointed by the Court, the Master of the Rolls, Sir John Romilly said in Ames v Trustees of the Birkenhead Docks 20 Beav. 355; 52 ER 630 at 638 - 639:
There is no question but that this Court will not permit a receiver, appointed by its authority, and who is therefore its officer, to be interfered with or dispossessed of the property he is directed to receive, by anyone, although the order appointing him may be perfectly erroneous; this Court requires and insists that application should be made to the Court, for permission to take possession of any property of which the receiver either has taken or is directed to take possession, and it is an idle distinction (which could not be maintained if it were attempted, which it is not by counsel at the Bar although suggested by the affidavits), that this rule only applies to property actually in the hands of the receiver. If a receiver be appointed to receive debts, rents, or tolls, the rule applies equally to all these cases, and no person will be permitted, without the sanction or authority of the Court, to intercept or prevent payment to the receiver of the debts, rents, or the tolls, which he has not actually received but which he has been appointed to receive. This, in substance, is not disputed on behalf of the Petitioner, but the contest is, as I have already stated, whether the acts of the Petitioner, or rather those of his solicitor and agents, were such as made this motion necessary, for the purpose of protecting the property to be received, and of preventing an interference with the orders of the Court.
As appears from Ames, interference with a receiver taking into his possession property the subject of the receivership may also be contempt. The authority of Ames was accepted by Beaumont J in Re: Soloman; Ex parte Reid (1986) 10 FCR 423 where his Honour observed at 425 - 426:
It is well established that, for the purposes of s 41(3)(b), execution is deemed to have been stayed where a judgment creditor is not "in a position to issue immediate execution upon it": per Bowen LJ in Ex parte Ide; Re Ide (1886) 17 QBD 755 at 760; Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184 at 187-188; cf Re A debtor [1984] 1 WLR 1143 at 1153-1154. It is also trite law that a judgment creditor may not, without leave of the court which appointed the receiver, levy execution against the property comprised in the appointment of the receiver: see O'Donovan, Company Receivers and Managers (1981), at p 321; Meagher, Gummow and Lehane, Equity Doctrines and Remedies (2nd ed 1983), at p 663. Any attempt to interfere with that property is an interference with an officer of the court in the performance of his functions. If done without leave of the court, it is a contempt of court. It will not be permitted even if the property concerned is not yet in the actual possession of the receiver: see Ames v The Trustees of The Birkenhead Docks (1855) 20 Beav 332 at 353; 52 ER 630 at 638.
In Penning v Steel Tube Supplies Pty Ltd (1988) 18 FCR 568 an order had been made under s.50 of the Act appointing a certain person to take control of the property of the debtor until further order. Prior to the making of that order, a creditor’s petition had been presented against the debtor. The creditor’s petition was heard and dismissed but no order was made discharging or otherwise dealing with the s.50 order. The respondent Steel Tube issued a bankruptcy notice against the debtor while the s.50 order remained in place. The debtor failed to comply with the bankruptcy notice and the respondent presented a creditor’s petition based upon the debtor's failure to comply with the bankruptcy notice. Amongst other things, the debtor argued that the bankruptcy notice was invalid because the petitioning creditor was not in a position to issue execution on the judgment against the debtor because of the effect of the s.50 order.
Of relevance to my determination is the opinion of the Full Court that there is no material distinction to be drawn because the appointment by the Court of a trustee under s.50 of the Act and the appointment of a receiver to take possession of the property of the debtor. At 575 the Full Court said:
In our view, no material distinction is to be drawn between the appointment by a court of a trustee to take control of a debtor's property under s 50 of the Bankruptcy Act 1966 and the appointment by a court of a receiver to take possession of the property of a named person.
In either case, and independently of whether there is an injunction requiring any particular person to deliver the goods into the control or possession of the receiver or trustee, any conduct without the sanction or authority of the court which prevents or hinders the taking of control or entry into possession by receiver or trustee of the property the subject of the court order, if done in knowledge of the court order, would appear to constitute a contempt.
Conclusion
On the uncontroverted facts, Mr Newport knew of the s.50 order and its terms prior to the settlement of the contract of sale over the debtor's property. It does not matter that he was not a party to the order, that he was not personally served with it, or that its provisions about service of the order and the material relied upon to secure it had not yet been carried out.
In my view, Mr Newport's refusal to ensure that the cheques given to him by the debtor were given to the applicant was contempt. Moreover, in my view, even if Mr Newport has not himself committed contempt, he has aided and abetted the debtor in committing contempt. A stranger to an action who aids and abets the breach of a court order obstructs the course of justice and thereby commits contempt: Seaward v Paterson [1897] 1 Ch 545.
It was suggested by Mr Newport (when he first appeared before me on 3 March, 2006) that he was duty bound to act on his client’s instructions and that his client was entitled to ignore the s.50 order because he reasonably thought that it was invalid.
Ames (above) makes it clear that the second proposition is not correct. The debtor was entitled to challenge the validity of the order by application to the court, but he was not entitled to ignore it. It was not suggested that the order was made without jurisdiction, rather, the argument was that it was invalid or irregularly made: cf. Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435, Fauna Holdings Pty Ltd v Mitchell (2001) 27 Fam LR 81.
As to the first proposition, the solicitor was at all times acting as agent of the debtor. For the purposes of collecting the proceeds of the sale and disbursing them to his client: Horne, Cordery’s Law Relating to Solicitors, 8th ed, Butterworths, 1998 at 96. But an agent who pays money received by him to a third party in obedience to a court order will be discharged from his obligation to his principal: Brown v Farebrother (1888) 58 LJ Ch 3.
The applicants seek indemnity costs. The circumstances where indemnity costs might be ordered are conveniently set out in Colgate-Palmolive Company And Another v Cussons Pty Limited (1993) 46 FCR 225. Of the general approach, Sheppard J said at 233:
4. In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v Barnes (supra) at 141 said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require". Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v Preston (supra) at 637; namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at p 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at p 6) similar views in Ragata (supra).
One of the recognised categories of cases attracting an order for indemnity costs is in the case of a contemnor: EMI Records Ltd v Ian Cameron Wallace Ltd [1983] Ch 59.
I am of the view that the applicants should have their costs on an indemnity basis. In light of the matters that developed on 1 and 2 March, 2006, it was appropriate for the applicants to initiate and pursue the preservation application. The person who had power to avoid the necessity for that application was the debtor's solicitor. He made a deliberate choice to pay the disputed funds to his client against the clear terms of Rimmer FM's order. I make no finding that the solicitor acted through a lack of honesty, but rather simply because, as he swears, he did not fully appreciate the duty upon him and the effect of her Honour's order. To act contrary to the terms of an order of any Court is always fraught with danger. I am not, however, dealing with an application to commit the solicitor or the debtor for contempt, but rather an application for costs of proceedings necessary to safeguard the course of justice put in train by Rimmer FM's order. Those proceedings ought not have been necessary.
I make the orders set out at the commencement of these reasons.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate:S. Haysom
Date: 17 March 2006
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