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Srotyr v Clissold

Srotyr v Clissold

Case [2015] NSWSC 1770 27 November 2015

Abuse of Process

Contempt of Court

Costs

Civil Litigation & Procedure

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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 order
Legislation 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 110
Category: 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:
A Cornish (Plaintiffs)
S J Burchett (1st Defendant)
Solicitors:
Esplins Solicitors (Plaintiffs)
Goodwyn Legal (1st Defendant)

File Number(s): 2014/325841

Judgment

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Srotyr v Clissold

Details

AGLC: Srotyr v Clissold [2015] NSWSC 1770
Case: [2015] NSWSC 1770
Decision Date: 27 November 2015

CaseChat Overview and Summary

In the matter of Srotyr v Clissold, the dispute involved an application for punishment for contempt of court, specifically regarding the construction of certain undertakings. The parties to the case were Srotyr, the plaintiff, and Clissold, the defendant. The proceedings took place before the court, which had to determine whether the undertakings given by the defendant were made to the court or inter partes, and if the defendant had breached those undertakings. Additionally, the case involved an application by the plaintiff to vary an earlier costs order made by consent, considering the defendant's breach of the inter partes undertakings.

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