Supreme Court
New South Wales
Medium Neutral Citation: Srotyr & Ors v Clissold & Anor [2015] NSWSC 1770 Hearing dates: 19 November 2015 Decision date: 27 November 2015 Jurisdiction: Equity - Duty List Before: White J Decision: Refer to paras [28] and [29] of judgment.
Catchwords: CONTEMPT OF COURT – application for punishment for contempt of Court – construction of undertakings – undertakings noted by the Court but not expressed to be made either to the Court or inter partes – relevance of the Judge’s asking the party’s solicitor whether the undertakings were given – undertakings prevented defendant from dealing with certain funds, subject to exceptions – where undertakings were implicitly given on an interlocutory basis until further order, but no cross-undertaking as to damages was given – held, dismissing the application, that the undertakings were made inter partes and not to the Court
PRACTICE AND PROCEDURE – costs – variation of costs orders – plaintiff seeks variation of earlier costs order made by consent – where defendant breached undertakings given inter partes – where plaintiff knew that those undertakings may have been breached at the time that the costs order was made – held, dismissing the application, and assuming, without deciding, that the Court has power to vary such a costs order, that it would not be appropriate on these facts to vary the costs orderLegislation Cited: Civil Procedure Act 2005 (NSW)
Trade Practices Act 1974 (Cth)Cases Cited: Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483
Cain v Glass (No. 1) (Supreme Court of New South Wales, Court of Appeal, 3 October 1985, unreported, BC8511322)
George v Webb [2011] NSWSC 1608
Heperu Pty Ltd v Belle [2011] NSWSC 1151 at [25]
Housewives United Buyers Co-operative Limited v Trustees of the Sisters of St Joseph (1980) 42 FLR 106
Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567
Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34
Short v Crawley (No 42) [2009] NSWSC 1110
Wyszynski v Bill [2005] NSWSC 110Category: Procedural and other rulings Parties: John Srotyr (1st Plaintiff)
Marion Enid Srotyr (2nd Plaintiff)
Srotyr & Co Pty Limited (3rd Plaintiff)
Keith Barry Clissold (1st Defendant)
Metropolitan Taxation Services (Bankstown) Pty Ltd (2nd Defendant)Representation: Counsel:
Solicitors:
A Cornish (Plaintiffs)
S J Burchett (1st Defendant)
Esplins Solicitors (Plaintiffs)
Goodwyn Legal (1st Defendant)
File Number(s): 2014/325841
Judgment
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HIS HONOUR: On 5 November 2014 the plaintiff, Mr John Srotyr, commenced proceedings against the first defendant, Mr Keith Clissold, and the second defendant, Mrs Marion Srotyr, seeking amongst other relief, orders that Mr Clissold be removed as Mrs Srotyr’s attorney, that he provide accounts in relation to her financial affairs and that he be restrained until further order from disposing, dealing with or diminishing the value of any assets held in the name of or for the benefit of Mrs Srotyr unless such amount was for the direct payment of an expense incurred for her accommodation or medical care, and from…
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- AGLC
- Srotyr v Clissold [2015] NSWSC 1770
- Case
- [2015] NSWSC 1770
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether the undertakings given by the defendant were made to the court or inter partes, and whether these undertakings had been breached. The court had to consider the relevance of the judge's inquiry to the defendant's solicitor about the nature of the undertakings. The court also had to determine if the undertakings prevented the defendant from dealing with certain funds, subject to specific exceptions. Furthermore, the court needed to assess whether it had the power to vary the earlier costs order made by consent, and if it would be appropriate to do so given the defendant's breach of the inter partes undertakings.
In dismissing the application for punishment for contempt of court, the court concluded that the undertakings were made inter partes rather than to the court. The court reasoned that although the judge had asked the defendant's solicitor about the undertakings, this did not necessarily mean that the undertakings were made to the court. The court also determined that the undertakings were implicitly given on an interlocutory basis until further order, but no cross-undertaking as to damages was provided. Regarding the application to vary the earlier costs order, the court found that it would not be appropriate to do so, assuming without deciding that it had the power to vary such an order. The court noted that the plaintiff was aware that the undertakings may have been breached at the time the costs order was made.
The court's final orders were to dismiss both the application for punishment for contempt of court and the application to vary the earlier costs order. The court held that the undertakings were made inter partes and not to the court, and that varying the costs order would not be appropriate under the circumstances.
Orders
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Evidence
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