Nathan Elali v Carl Frederik Reinhold Mahrs (No. 3)

[2014] NSWSC 58

Supreme Court

New South Wales

Medium Neutral Citation:

Nathan Elali v Carl Frederik Reinhold Mahrs & Anor (No. 3) [2014] NSWSC 58

Hearing dates:

11 February 2014

Decision date:

11 February 2014

Jurisdiction:

Equity Division

Before:

Slattery J

Decision:

1. Stand the matter over for directions to 9.30am on Monday 17 February 2014.

2. I order the plaintiff to pay in respect of his after acquired property the subject of these proceedings the sum of $3,440 to the defendants by 5pm Friday, 14 February 2014, being for mesne profits for his occupation of the premises for the period up to and including 14 February 2014.

3. I order the applicant on motion to serve at subject premises a copy of the charge on which they propose to rely in support of their 30 January 2014 motion in conformity with Part 55, rule 7.

Catchwords:

PROCEDURE - motion filed by defendants for contempt of court - whether the motion complies with the Supreme Court Rules, Part 55, Rule 7 - directions given - no question of principle.

Legislation Cited:

Supreme Court Rules 1970, Part 55, r 7
Uniform Civil Procedure Rules 2005 Pt 40 r 6, 7, 8

Cases Cited:

Nathan Elali v Carl Frederik Reinhold Mahrs & Anor [2013] NSWSC 1883
Nathan Elali v Carl Frederik Reinhold Mahrs & Anor (No. 2) [2013] NSWSC 1976

Category:

Consequential orders

Parties:

Plaintiff:- Nathan Elali (a bankrupt)
First Defendant: Carl Frederik Reinhold Mahrs
Second Defendant:- Melinda Mahrs

Representation:

Solicitors:
Plaintiff- in person
First & Second Defendant- M. Smith Brander Smith McKnight

File Number(s):

2013/302179

Publication restriction:

No

EX TEMPORE JUDGMENT

1. The defendants have filed a motion on 30 January 2014 seeking orders that the plaintiff be punished for contempt of Court, specifically for his failure to comply, it is alleged, with orders of the court made on 19 December 2013.

1. The order that is said not to have been complied with is Order 2 of those orders, which provides against the plaintiff for "an order for possession of property located at Connells Point New South Wales 2221 [address not published] in favour of the defendants".

1. The motion filed does not comply with Pt 55 r 7 of the Supreme Court Rules, which requires that a statement of charge specifying the contempt, to be subscribed or filed with the motion.

1. In fairness to the plaintiff I am not prepared to set the matter down for hearing until that is done. For that purpose I will adjourn the proceedings to Monday, 17 February 2014. In the meantime I will order the defendants to serve and provide to the Court a statement of charge on which they rely by noon on Thursday 13 February 2014.

1. It appears from what has been said in Court today that the plaintiff is still in possession of the premises and he has not paid anything by way of mesne profits for his occupation since 22 January.

1. The plaintiff will have the benefit of the adjournment until next week. It seems only fair and proper that he also be ordered to pay rent up to Friday. On Monday 17 February, in light of whether the charge has been served, whether he is in the premises, whether the amount has been paid, the overall urgency of my list, and whether the plaintiff needs further time to get legal advice to defend the charge, I will decide when the matter is to be set down for hearing.

1. It is agreed between the parties that based upon the existing $1,100 per week rental for the subject premises mesne profits would be fully paid up to and including 14 February if the sum of $3,440 were ordered to be paid on that day. I will so order.

1. Therefore the orders are:

1.   Stand the matter over for directions to 9.30am on Monday 17 February 2014.

2.   I order the plaintiff to pay in respect of his after acquired property the subject of these proceedings the sum of $3,440 to the defendants by 5pm Friday, 14 February 2014, being for mesne profits for his occupation of the premises for the period up to and including 14 February 2014.

3. I order the applicant on motion to serve at subject premises a copy of the charge on which they propose to rely in support of their 30 January 2014 motion in conformity with Part 55, rule 7.

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Decision last updated: 11 February 2014