Millner v BM and JA Holdings Pty Ltd
[2012] NSWSC 1082
•12 September 2012
Supreme Court
New South Wales
Medium Neutral Citation: Millner v BM & JA Holdings Pty Ltd [2012] NSWSC 1082 Hearing dates: On the papers Decision date: 12 September 2012 Before: Schmidt J Decision: 1 Arrest warrants issue addressed to the Sheriff of NSW and all other sheriff's officers to arrest Luke Webb and Jodi Ann Webb and bring them before the Court for examination.
2 Reserve liberty to Luke Webb and Jodi Ann Webb to apply to vary or discharge these orders upon notice of motion
3 That the plaintiff serve a copy of these reasons on Luke Webb and Jodi Ann Webb by service on their solicitor and at their last known address.
Catchwords: CIVIL LAW - examination orders - no appearance - arrest warrants Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure RulesCategory: Principal judgment Parties: Michael John Millner (First Plaintiff)
Janice Leila Millner (Second Plaintiff)
BM & JA Holdings Pty Ltd (First Defendant)
Luke Webb (Second Defendant)
Jodi Ann Webb (Third Defendant)Representation: Solicitors:
Cheney and Wilson (Plaintiffs)
Ziman and Ziman (Defendants)
File Number(s): 2011/88003
Judgment
These proceedings were commenced by statement of claim filed in March 2011. The proceedings were not defended. Judgment was entered for the plaintiff on 14 July 2011. On 18 May 2012 the Deputy Registrar ordered that the first defendant, Luke Webb and the second defendant, Jodi Ann Webb attend Court on 25 June to be examined.
By motions filed on 18 July 2012 the plaintiff sought the issue of warrants under s 97 of the Civil Procedure Act 2005, for the arrest of Luke Webb and Jodi Ann Webb, for failure to comply with the orders for examination made on 18 May. The motions were yesterday referred to me, sitting as duty judge.
The motions were supported by affidavits sworn by the plaintiffs' solicitor Mr Peter Wilson. Mr Wilson deposed that the judgment debt in these proceedings remains unsatisfied to the extent of some $175,924.65; that on 18 May 2012 examination orders were made, requiring the attendance of Luke Webb and Jodi Ann Webb before the Court on 25 June; that the orders were served on the defendants' solicitor, Mr Derek Ziman of Ziman and Ziman on 25 May 2012; that there was no appearance and on 25 June 2012 Registrar Bradford made orders that he was satisfied that there had been deemed service and adjourned the matter to 9 July, ordering the plaintiffs' solicitor to serve a notice under Rule 38.6(c) of the Uniform Civil Procedure Rules, on the defendants' solicitor Mr Ziman; that such notices were served by prepaid post addressed to Mr Ziman on 28 June; that a copy of the notices was also served on Luke Webb and Jodi Ann Webb at their last known address in Dubbo; that they had failed to comply with the notice; that enquiries made by the Sheriff's Department in Dubbo had indicated that Luke Webb and Jodi Ann Webb are in Port Macquarie; and that Mr Ziman advised on 6 June that he was in email contact with them.
Section 97 of the Civil Procedure Act provides:
97 Arrest warrants
(cf SCR Part 42, rule 7)
(1) Subject to rules of court:
(a) if, by subpoena or otherwise, the court makes an order, whether under this Act or any other law:
(i) for a person to attend court for any purpose, or
(ii) for a person to produce any document or thing to the court, and
(b) the person fails to comply with the order,
the court may issue, or make an order for the issue of, a warrant for the person's arrest.
(2) Subject to rules of court, an arrest warrant may be issued without notice to the person.
(3) The court from which an arrest warrant has been issued may revoke the warrant.
(4) An arrest warrant is sufficient authority for any person to whom it is addressed, with the assistance of such police officers as may be necessary, to arrest the person named in the warrant, to convey the person to the place specified in the warrant and to deliver the person into the custody of the court sitting at that place.
Rule 38.6 of the Uniform Civil Procedure Rules provides:
38.6 Arrest warrant where person fails to comply with order for examination under rule 38.3
(cf Act No 9 1973, section 92; Act No 11 1970, section 42; DCR Part 32, rule 6; LCR Part 28, rule 7)
A warrant issued under section 97 of the Civil Procedure Act 2005 as a consequence of a person's failure to comply with an order for examination referred to in rule 38.3:
(a) may be issued or revoked by the court of its own motion or on the application of the person in whose favour a judgment or order has been given or made, and
(b) must be expressed to expire no later than 3 months after the date on which it is issued, and
(c) may not be issued in relation to a person's failure to comply with an order for examination earlier than 14 days, nor later than 3 months, after the court has served notice on the person to whom the order for examination is addressed that failure to attend for examination may result in the person's arrest.
I am satisfied on the material before the Court that the orders sought should be made. I am satisfied that Luke Webb and Jodi Ann Webb, having been ordered to appear before the Court for examination, have failed to appear when required. By service upon their solicitor and at their last known address, they were given notice of the Court's orders, as well as a further notice advising that failure to attend for examination may result in their arrest. The requirements of the Rules having been complied with, justice requires that the warrants sought be issued.
Orders
Accordingly I order that:
1 Arrest warrants issue addressed to the Sheriff of NSW and all other sheriff's officers to arrest Luke Webb and Jodi Ann Webb and bring them before the Court for examination.
2 Reserve liberty to Luke Webb and Jodi Ann Webb to apply to vary or discharge these orders upon notice of motion
3 That the plaintiff serve a copy of these reasons on Luke Webb and Jodi Ann Webb by service on their solicitor and at their last known address.
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Decision last updated: 11 September 2012
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