Muriti v Prendergast

[2005] NSWSC 1352

CITATION:	Muriti & Anor v Prendergast & Ors [2005] NSWSC 1352
HEARING DATE(S):	9 December 2005
JUDGMENT DATE :	9 December 2005
JUDGMENT OF:	Brereton J
DECISION:	Adjournment of contempt application granted without terms; further directions made in aid of specific performance.

CATCHWORDS:	PROCEDURE - contempt - adjournment of contempt proceedings - whether appropriate to impose terms - held inappropriate.
PARTIES:	Vincent Carl Muriti (P1) Keanlong Pty Ltd (ACN 073 104 266) (P2) John Francis Prendergast (D1) Rolcross Pty Ltd (ACN 003 538 490) (D2) Worthbrook Pty Ltd (ACN 050 538 808) (D3) Laon Pty Ltd (ACN 100 094 433) (XC) Santee Pty Ltd (formerly known as Perfect Auto Body Pty Ltd) (XD1) Perfect Auto Body Canberra Pty Ltd (ACN 100 296 222) (XD2) Vincent Carl Muriti (XD3) Keanlong Pty Ltd (ACN 073 104 266 (XD4)
FILE NUMBER(S):	SC 5094/04
COUNSEL:	J Stevenson SC & N Bearup (Plaintiffs/Applicants) TEF Hughes QC & J Needham SC, & H Dhanji (Defendants/Respondents)
SOLICITORS:	Henry Davis York Lawyers (Plaintiffs/Applicants) Phillips Fox Lawyers (Defendants/Respondents)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday 9 December 2005

5094/04 Vincent Carl Muriti & Anor v John Francis Prendergast & Ors

JUDGMENT (ex tempore - revised 21 December 2005)

1 HIS HONOUR: Before me is a Notice of Motion filed on 6 December 2005 by which the plaintiffs Vincent Carl Muriti and Kealong Pty Ltd seek, in substance, orders that the defendants be found guilty of contempt of Court in respect of 19 separate charges of what might conveniently be described as civil contempt, as specified in a statement of charge annexed to the Notice of Motion, of orders for specific performance of a commercial transaction.

2 The motion was filed by leave of the Court granted on 6 December. Time for service was abridged to 5pm on 7 December, and the motion was first returnable before the Court on 8 December when, on application of the defendants, it was adjourned to 12 noon today. Mr T.E.F. Hughes QC, who appears today for the defendants, now applies for a further adjournment, which application is opposed by Mr J Stevenson SC for the plaintiffs.

3 I do not pretend fully to understand the long history of the proceedings which have brought them to this point, but a brief reading of the Notice of Motion and the supporting affidavit shows that it would be practically impossible for the defendants and their legal representatives to be in a position to respond to 19 charges of contempt - involving, as they do, jeopardy to the liberty of the defendants - within the time which has so far been available for that purpose.

4 While I appreciate that a date fixed for settlement of the commercial transaction, which is to take place as a result of the substantive proceedings, has already been fixed and passed, it is not clear to me that such urgency attends the question of whether there has already been a contempt or not as would justify forcing the defendants to defend the matter today.

5 It is then submitted on behalf of the plaintiffs that conditions should be imposed on any adjournment, including the extraction of undertakings to comply with the orders already made (which are in the nature of orders for specific performance) and to comply with the requirements of third parties, which appear to be preconditions to the commercial settlement taking place.

6 To my mind, this would not be at all an appropriate course to adopt in connection with contempt proceedings. While it is true to say of contempt proceedings that the ultimate purpose of a remedy is to secure compliance with the orders of the Court, it is clear nowadays that even proceedings for so-called civil contempt are quasi-criminal in nature, and that once the Court's contempt jurisdiction is invoked, what it is called upon to do is to adjudicate on whether or not there has been a contempt. In that proceeding, the Court is to apply the criminal standard of proof, and it must be zealous not to require the alleged contemnor to incriminate himself, herself or itself.

7 Adjourning the contempt proceedings on terms would be an abuse of these proceedings, at least in a technical sense. It would be using them, not for the purpose of adjudicating whether or not there has been a contempt but, in effect, to suspend a Sword of Damocles over the alleged contemnor to endeavour to secure compliance with the orders pending the determination of the contempt application, regardless of whether or not the alleged contemnor admits or denies that there has been a contempt. To extract some undertaking may also go someway towards requiring an alleged contemnor to incriminate himself, herself or itself in the course of the contempt proceedings.

8 Whether further directions in aid of the order of specific performance should be made is a matter that should be dealt with separately and apart from the contempt proceedings. To my mind, the pendency of the contempt proceedings would not be relevant as to whether, on the civil onus, such further orders should be made.

9 For those reasons, it would be inappropriate to impose conditions on the adjournment of the contempt proceedings, and it would be inappropriate to force them on to hearing when, on any view, it can be said that there has not yet been a realistic opportunity for the defendants to prepare themselves to answer 19 charges of contempt with which they were served less than 48 hours ago.

10 I make the following orders:

1. That the hearing of the Notice of Motion filed on 6 December 2005 be adjourned to Thursday 15 December 2005 at 10am before the Duty Judge.

2. That the costs of the proceedings today be costs in the motion.

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11 I have now heard the plaintiff's oral application for further directions in aid of the order for specific performance, in respect of which there is but minor disagreement as to the time to be fixed in order 1 below. I am minded to allow the longer time sought by the defendants, for the reason that that course will preclude further dispute as to its sufficiency.

12 I am prepared to direct that notice of the orders may be served on the defendant's solicitors, Levitt Robinson, in the light of their request that all documents be so served rather than personally on Mr Prendergast, but ultimately it is a matter for the Judge hearing any contempt application as to whether personal service should be dispensed with. As I see it, that power is a power which attends an application to enforce the order by way of committal or sequestration, and its exercise ought be a matter for the judge hearing that application.

13 I make the following additional orders:

1. Order that by 10am on Tuesday 13 December 2005 the first defendant, John Francis Prendergast, provide to the ANZ Bank:

a. Details of the bank cheques, payees and amounts and from which account or accounts these bank cheques should be drawn for the settlement of the heads of agreement (hereinafter "the settlement");

b. A copy of the transfer documents in respect of the properties set out under the heading Property Transfers, on page 3 of the letter from ANZ to Gadens, dated 9 December 2005 (hereinafter "the letter"), being Exhibit AX 01 (hereinafter "the Properties");

c. Details of the ownership percentages that Rolcross Pty Limited and Worthbrook Pty Limited will maintain in the Properties that will be subject to mortgage after the Settlement;

d. Copies of the proposed leases in respect of the Properties.

2. Order that by 10am on Tuesday 13 December 2005 the first defendant, John Francis Prendergast, pay to the ANZ Bank the sum of $18,200 referred to in the Letter.

3. Direct that notice of this order may be served on the defendant by transmission of a facsimile of a sealed copy thereof to the defendants' solicitors Levitt Robinson, addressed to facsimile 9286 3155, in lieu of personal service.

4. Direct that the Registrar sign and settle a minute of this order forthwith.

5. The proceedings are adjourned to 10am on 15 December 2005 before the Duty Judge.

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