Stoffels v Piper (No 2)
[2024] NFSC 4
•3 June 2024
SUPREME COURT OF NORFOLK ISLAND
Stoffels v Piper (No 2) [2024] NFSC 4
File number(s): SC 1 of 2023 Judgment of: WIGNEY J Date of judgment: 3 June 2024 Date of publication of reasons: 6 June 2024 Catchwords: PRACTICE AND PROCEDURE – enforcement of court order – order for seizure and detention of property
CONTEMPT OF COURT – failure to comply with court order – sentenced for contempt – punishment for contempt deferred
Legislation: Crimes (Sentencing) Act 2005 (ACT)
Partition Act 1900 (NSW)
Supreme Court Act 1960 (NI) s 5(2)(b)
Court Procedures Rules 2006 (ACT) rr 2442, 2446, 2470, 2471, 2500, 2501, 2506
Cases cited: Stoffels v Piper [2024] NFSC 2
Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3
Number of paragraphs: 51 Date of hearing: 3 June 2024 Solicitor for the Plaintiff: J Brown of McIntyres Lawyers Counsel for the Defendant: The Defendant appeared in person ORDERS
SC 1 of 2023 BETWEEN: ERIKA LEE STOFFELS
Plaintiff
AND: ANDREW HARRY PIPER
Defendant
ORDER MADE BY:
WIGNEY J
DATE OF ORDER:
3 JUNE 2024
THE COURT ORDERS THAT:
1.Orders 2 and 3 of the orders made by Wigney J on 13 May 2024 be varied nunc pro tunc by deleting the words “17 May 2024” and inserting the words “22 May 2024”.
2.An order for seizure and detention of property be made pursuant to rr 2442 and 2470 of the Court Procedures Rules 2006 (ACT), in the form annexed to these orders, in respect of 65 Captain Quintal Drive, Norfolk Island, in execution of order 9 of the orders made by Wigney J on 30 January 2024, as varied by order 1 of the orders made by Wigney J on 13 May 2024.
3.The defendant, Mr Andrew Harry Piper, be convicted of contempt for failing to comply with order 9 of the orders made by Wigney J on 30 January 2024, as varied by order 1 of the orders made by Wigney J on 13 May 2024.
4.The punishment, if any, of the defendant, Mr Andrew Harry Piper, for the contempt referred to in order 3 be deferred to 24 June 2024 at 10.15am AEST (11.15am Norfolk Island Time).
5.The defendant file and serve any evidence on which he wishes to rely and any submissions in respect of punishment, if any, of him for contempt on or before 17 June 2024.
6.The plaintiff file and serve any evidence on which she wishes to rely and any submissions in respect of punishment, if any, of the defendant for contempt on or before 20 June 2024.
7.The proceeding be listed for hearing on 24 June 2024 at 10.15am AEST (11.15am Norfolk Island Time).
REASONS FOR JUDGMENT
(Revised from transcript)WIGNEY J:
On 30 January 2024, I delivered a judgment and made orders pursuant to the Partition Act 1900 (NSW), as it applies in Norfolk Island, which provided for the sale of a property on Norfolk Island (the Property) which was jointly owned by the plaintiff, Ms Erika Stoffels, and the defendant, Mr Andrew Piper. These reasons for judgment should be read together with that earlier judgment: see Stoffels v Piper [2024] NFSC 2 (the principal judgment). Mr Piper has not appealed the principal judgment. The issue currently before the Court concerns the enforcement of the principal judgment.
The orders made on 30 January 2024 included ancillary orders to facilitate the sale of the Property pursuant to the Partition Act. Order 9 of the orders made on 30 January 2024 was that the defendant vacate the Property within 21 days from the date of the orders and deliver the keys to the agent. Order 3 provided for the appointment of an agent agreed by the parties or, failing any such agreement, an agent selected by the Registrar. Mr Piper was in court on 30 January 2024 when I delivered the principal judgment and made those orders.
There is no dispute that Mr Piper has not vacated the Property. There was evidence before the court to that effect, and Mr Piper has not suggested otherwise.
Ms Stoffels’ enforcement application
On 19 April 2024, Ms Stoffels filed an application in the proceeding (the enforcement application) in which she sought various orders, including an order that Mr Piper show cause why he should not be found guilty of contempt as a result of his failure to vacate the Property in accordance with Order 9. The application was supported by an affidavit sworn by Ms Stoffels’ solicitor, Mr John Brown.
Ms Stoffels’ application was listed for a case management hearing on 13 May 2024. Mr Piper appeared in person at that case management hearing. Mr Brown appeared for Ms Stoffels. Several issues were ventilated at the case management hearing.
First, it was made clear to Mr Piper that Ms Stoffels had filed the enforcement application because he had not vacated the Property in accordance with Order 9. Mr Piper did not suggest that he had vacated the Property. Indeed, he made it clear that he had not.
Second, Mr Piper raised an issue concerning Order 9. That issue was that the order required him to deliver the keys to an agent, however no agent had been appointed. He noted that he did not reach any agreement with Ms Stoffels about the appointment of an agent, and the Registrar had not appointed an agent pursuant to order 3 of the orders. He suggested that he was therefore not able to fully comply with Order 9. In response to that rather technical argument, Mr Brown applied to vary Order 9 by deleting the words “to the agent” and inserting instead the words “to the Registrar.” I acceded to that application and varied Order 9 accordingly. The effect of the variation of the order was that, if and when Mr Piper vacated the Property, as required by Order 9, he was required to deliver the keys to the Registrar and not an agent.
Third, in relation to that part of the enforcement application that concerned the allegation that Mr Piper was in contempt, I indicated that it would be necessary to give Mr Piper an opportunity to both adduce any evidence upon which he wished to rely, and to advance any submissions he wanted to advance, in defence or opposition to that allegation. It was, however, made abundantly clear to Mr Piper that, while the Court would obviously hear, and closely consider, his evidence and submissions, if he did not vacate the Property and was unable to point to any lawful or legitimate basis for not complying with Order 9, he may be convicted of contempt.
Fourth, in response to queries raised by the Court about the Court’s power to make some of the other orders sought in the enforcement application, Mr Brown foreshadowed that he was going to seek to amend the enforcement application to, among other things, explicitly include other enforcement orders which are provided in the rules which apply to this Court, which are the Court Procedures Rules 2006 (ACT). The enforcement orders foreshadowed by Mr Brown included, in addition to enforcement by contempt, an order for seizure and detention of the property, as provided for in rr 2442(2)(b) and 2470 of the Rules.
Fifth, I made various procedural orders which included that Ms Stoffels’ foreshadowed amended enforcement application, and any further evidence relied on in support of it, were to be served on or before 17 May 2024, and that Mr Piper serve any evidence upon which he proposed to rely in response to the application on or before 24 May 2024. The enforcement application was listed for hearing on 3 June 2024. The effect of those procedural orders was explained to Mr Piper.
The amended application and Ms Stoffels’ evidence
Ms Stoffels ultimately filed an amended application, though she did not do so by 17 May 2024. The amended application was filed on 22 May 2024. A further affidavit sworn by Mr Brown was also filed on that day. That affidavit, among other things, explained the delay in filing the amended application and the affidavit, and sought an extension of time. Mr Brown’s further affidavit also included evidence that Mr Piper continued to occupy the Property. The amended application and Mr Brown’s affidavit were served on Mr Piper on 22 May 2024. Also served on Mr Piper that day was a notice about the available options and orders that might be made in respect of the enforcement of the principal judgment. That notice advised Mr Piper that the enforcement options which were available, if he did not comply with Order 9, included, among other things, an order for seizure of the Property, and an order that he was guilty of contempt and that he be punished accordingly.
The evidence in Mr Brown’s two affidavits (the one which accompanied the original enforcement application and the one filed on 22 May 2024) was essentially formal and uncontroversial. They both annexed a series of emails between Mr Brown and Mr Piper. I do not propose to deal with the content of those communications, save as to note that they evidenced Mr Piper’s recalcitrance and refusal to vacate the Property. Both affidavits contained Mr Brown’s observation that Mr Piper has not vacated the Property. As has already been noted, that is uncontentious. Mr Piper does not claim that he has vacated the Property. Mr Brown’s second affidavit also contained some uncontentious evidence about the joint ownership of the Property.
Mr Piper’s evidence and submissions
Mr Piper filed two affidavits in opposition to the orders sought by Ms Stoffels.
The first affidavit, which is nine paragraphs in length, essentially made two points. The first point was that the amended application and Mr Brown’s affidavit in support were filed and served after 17 May 2024, which was the date specified in the orders made at the case management hearing. As already noted, the amended application and Mr Brown’s affidavit were filed and served on 22 May 2024. It is, however, abundantly clear that Mr Piper had had sufficient time and an adequate opportunity to read and consider both the amended application and Mr Brown’s affidavit prior to the hearing of the amended enforcement application. He did not assert, at least in his affidavit, that given the late service he was unable to respond to those documents, or that he was otherwise prejudiced by the late service in any way. In his submissions in opposition to the amended application, Mr Piper did suggest that he had, in effect, chosen not to fully read the amended application and Mr Brown’s affidavit because they were served after 17 May 2024. That does not detract from the point that he had every opportunity to read those documents, had he chosen to do so. I also have great difficulty in accepting Mr Piper’s self-serving assertion from the Bar table that he had chosen not the read the documents.
The second point addressed in Mr Piper’s first affidavit was that Order 9 originally provided that he was required to deliver the keys to the agent once he vacated the Property. Mr Piper did not, however, suggest that he had taken any steps towards vacating the Property, either before Order 9 was varied, or after the variation. He simply intimated, in effect, that had he vacated the Property, he would have been unable to deliver the keys.
Mr Piper’s second affidavit is eight paragraphs in length and has some annexures. It addressed a different topic. It is a topic that Mr Piper had addressed in previous evidence and previous submissions, both in opposition to the original orders under the Partition Act and at the last case management hearing. That topic relates to the position of St. George Bank. The Property is subject to a mortgage held by the Bank. It is common ground that the mortgage is in default. Mr Piper referred in his affidavit to several conversations and correspondence he has had with officers of the Bank and its parent company, the Westpac Banking Corporation. He also annexed some email correspondence between himself and officers of those banks. Mr Piper also separately tendered a bundle of other communications, mainly email communications between himself and the Bank over a lengthy period of time.
I do not propose to refer to the details of the conversations referred to in Mr Piper’s affidavit or the email correspondence annexed to the affidavit and tendered separately. The upshot of the communications is that the mortgage is in default. However, it is readily apparent that the Bank has not taken any formal steps to enforce the mortgage. Indeed, Mr Piper candidly conceded, in his submissions, that no steps have been taken by the Bank to foreclose on the mortgage. Mr Piper nevertheless claimed that the Bank had somehow “asserted its ownership” of the Property.
Mr Piper’s submissions at the hearing of the enforcement application essentially rehearsed and developed the points and claims made in his affidavits.
Issues
There was and is no dispute that Mr Piper has not vacated the Property and not delivered the keys to the Registrar in accordance with Order 9 as varied. Mr Piper’s evidence and submissions essentially raised three issues.
First, whether the late service of the amended application and further evidence somehow prevented Ms Stoffels from prosecuting the enforcement application.
Second, whether the fact that Order 9 originally provided that Mr Piper was to deliver the keys to an agent, in circumstances where there was no agent, provided any legitimate ground for Mr Piper’s opposition to the enforcement application, including the claim of contempt.
Third, whether Mr Piper’s claims and assertions concerning the position of the Bank provided any ground for his opposition to the enforcement application, including the claim of contempt.
Extension of time to file the amended application and further evidence
In relation to Mr Piper’s point concerning the late filing of the amended application and Mr Brown’s affidavit in support, in my view it is appropriate to vary the order made at the case management hearing to, in effect, grant an ex post facto extension of time to file those documents. Mr Piper clearly had adequate time to consider and respond to the amended application and further affidavit evidence. He did not claim to be prejudiced by the late filing and service. Even if he did, I would reject that claim. As already noted, Mr Brown’s further affidavit does not add much to his earlier affidavit. It is in any event very short and the evidence in it is essentially uncontroversial. The amended application essentially addressed the issues that were discussed at the case management hearing and could hardly be said to have taken Mr Piper by surprise.
I therefore propose to make an order varying orders 2 and 3 of the orders made on 13 May 2024 nunc pro tunc by changing the date “17 May 2024” to “22 May 2024”. That effectively amounts to a retrospective extension of time for Ms Stoffels to have filed the amended application and affidavit in support.
The issue concerning the delivery of the keys
The fact that Order 9 as originally made provided for the delivery of keys to an agent in circumstances where no agent was appointed does not provide any legitimate ground for Mr Piper to oppose the enforcement application, including the claim of contempt. It does not provide any excuse or justification for Mr Piper’s ongoing refusal to vacate the Property.
Mr Piper claimed that it would have been irresponsible for him to vacate the Property in circumstances where he was unable to leave the keys with anyone. There is no merit in the claim. Even before the variation of Order 9, Mr Piper no doubt could have raised the issue with Mr Brown, or delivered the keys to Mr Brown, or the Registrar, if he had had any genuine intention to comply with the order. Mr Piper obviously had no intention to, and took no steps to, vacate the Property at that time. The issue with the delivery of the keys was in those circumstances essentially irrelevant. In any event, whatever may have been the position prior to the variation of Order 9, since that time Mr Piper was able to deliver the keys to the Registrar upon vacating the Property. He has not vacated the Property or delivered the keys to the Registrar.
The position of the Bank
Mr Piper’s various claims and assertions concerning the position of the Bank do not provide any legitimate ground for opposition to the enforcement application, including the claim of contempt. Whatever may be the Bank’s position concerning the enforcement of the mortgage, it does not provide any excuse or justification for Mr Piper’s ongoing failure and refusal to comply with Order 9 as varied.
As for Mr Piper’s claim that the Bank has somehow asserted ownership of the Property, I do not entirely understand what Mr Piper means in that respect. If he intends to assert that the Bank is somehow in possession of the Property, or has taken formal steps to secure an order for possession of the Property so it might be sold, or that the Bank is in some sort of position to prevent or oppose the Property being sold pursuant to the Court’s order, that assertion is unsupported by the evidence and is rejected. The Bank's interest is limited to being the mortgagee of the Property. While the mortgage is in default, the Bank has taken no step to foreclose, or obtain possession of the Property, or sell it. Mr Piper’s claim that the Bank has asserted ownership is supported by nothing more than an obviously unreliable and self-serving hearsay account of a conversation or conversations with officers of the Bank. In any event, if the Bank believes it has a right to prevent the court-ordered sale, it will need to apply to be joined as a party to this proceeding and seek appropriate relief. It has not done so to date. Aside from Mr Piper's bare assertion, I have seen no evidence to suggest that the Bank has any rights in respect of the Property other than rights as a mortgagee which it has taken no steps to enforce.
I should finally add on that topic that Mr Piper's various other assertions concerning the position of the Bank and the sale of the Property in that context were addressed in the principal judgment at [13]-[16]. It is unnecessary to revisit those issues.
Findings
Mr Piper has not vacated the Property and delivered the keys to the Registrar as required by Order 9 as varied. There is nothing in either of Mr Piper's two affidavits, or the documentary material he has tendered, or in his submissions, which provides any lawful, legitimate, or reasonable justification or excuse for his non-compliance with that order.
I infer and conclude on the basis of the evidence that Mr Piper has knowingly and deliberately failed and refused to comply with Order 9 as varied. That situation will no doubt persist unless and until the Court makes further orders to enable the enforcement of Order 9 as varied.
Enforcement of the orders
It is appropriate for the Court to make orders to enable the enforcement of Order 9 as varied. The two most appropriate means by which to enforce Order 9 are: first, enforcement by contempt; and second, making an order for seizure and detention of the Property by an enforcement officer. Both of those means of enforcement are provided by r 2442 of the Rules.
I will deal with the order for seizure and detention of the Property first.
Order for seizure and detention of the Property
Rule 2442(2)(b) of the Rules provides that an order for seizure and detention of property is available where the order to be enforced is a "non-money order" to do an act within a stated time. Order 9 is plainly a non-money order and requires Mr Piper to do an act – to vacate the Property – within a stated time – within 21 days of the making of the order on 30 January 2024.
The preconditions to the making of an order for seizure and detention of property are specified in r 2446: see r 2442(2).
Rule 2446(1) sets out certain preconditions, though subrule (2) provides that those preconditions do not apply if the person who was required to do an act has notice of the order because the person was present when the order was made. That is the position with respect to Mr Piper. He was present not only on 30 January 2024 when the Order 9 was made, but also when that order was varied by the Court on 13 May 2024.
There are no other relevant preconditions to the making of an order for seizure and detention of property.
Rules 2470 and 2471 provide as follows:
2470 Order for seizure and detention of property—making
The court may make an order (an order for seizure and detention of property) authorising an enforcement officer to seize and detain all real and personal property (other than exempt property) in which the person liable to comply with a non-money order has a legal or beneficial interest.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
2471 Order for seizure and detention of property—preconditions
The court may make an order for seizure and detention of property only if the non-money order being enforced stated a time for compliance and the time has passed.
I am satisfied that Order 9, as varied by order 1 of the orders made on 13 May 2024, is a non-money order, and that the time stated for compliance has passed. In those circumstances, I am satisfied that it is appropriate to make an order for seizure and detention of the Property pursuant to rr 2442 and 2470 of the Rules for the purposes of enforcing Order 9 as varied. Nothing in Mr Piper’s evidence or submission persuades me otherwise.
Contempt
As for contempt, this Court has jurisdiction to deal with contempt: see s 5(2)(b) of the Supreme Court Act 1960 (NI). It is trite law that failure to comply with a court order may constitute contempt.
Enforcement action by way of contempt is addressed in Div 2.18.16 of the Rules. That division applies, among other things, to a contempt for contravention of an order of the court: see r 2500(a).
Rule 2501 provides as follows.
2501 Contempt—applications generally
(1)A person applying for punishment of a person (the respondent) for contempt must make an application to the court stating the alleged contempt.
(2) The application may be made—
(a)in the proceeding in which the contempt was committed; or Note Pt 6.2 (Applications in proceedings) applies to an application under this paragraph.
(b) by originating application.
Note Div 2.2.3 (Originating applications) contains provisions about the contents of originating applications, the filing and service of originating applications, etc.
(3) The application must set out particulars of the contempt.
(4)The application and any affidavit in support of it must be served on the respondent personally.
(5)An affidavit in support of or opposing the application must not contain evidence that the person making it could not give if giving evidence orally.
Ms Stoffels has made an application to the Court stating the alleged contempt and setting out particulars of the contempt. Prayer 7 of the amended application satisfies those conditions. It provides the following particulars of the alleged contempt:
That the defendant be found guilty of contempt of court and punished accordingly as a result of his failure to vacate the property in accordance with the orders made herein on 30 January 2024, in particular, order 9 thereof, and order 1 of the orders made herein dated 13 May 2024.
It is abundantly clear, in my view, that Mr Piper is aware of the nature of the alleged contempt.
The amended application and the affidavit in support were personally served on Mr Piper: see the affidavit of Christopher James Higgins dated 22 May 2024.
The standard of proof in a contempt proceeding is the criminal standard of beyond reasonable doubt: see Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3.
I am satisfied beyond reasonable doubt that Mr Piper has failed and refused to comply with Order 9, as varied by order 1 of the orders made on 13 May 2024.
Nothing in Mr Piper’s affidavit evidence or submissions casts any doubt, let alone any reasonable doubt, on the fact that he has failed to comply with Order 9 as varied. Nor does anything in Mr Piper’s affidavit evidence and submissions provide any lawful or legitimate excuse or justification for his ongoing failure to comply with that order. It is unnecessary to repeat what I have previously said concerning Mr Piper’s evidence and submissions in that regard.
I therefore find that Mr Piper is in contempt of Court by failing to comply with an order of the Court.
Rule 2506 of the Rules applies if the Court decides that a person has committed a contempt. I have found that Mr Piper has committed a contempt. Rule 2506(2) provides that if the person is an individual the court may punish the individual by making an order that may be made under the Crimes (Sentencing) Act 2005 (ACT).
I do not propose at this stage to make any order punishing Mr Piper for contempt. Rather, I propose to defer imposing any punishment for three weeks. I will hear further evidence and submissions at a hearing in respect of punishment on 24 June 2024. I would envisage that by that time the order for seizure and detention of the Property will have been executed. Mr Piper’s conduct in respect of the execution of that seizure and detention order may well bear on the penalty, if any, that I impose on him for his contempt.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate:
Dated: 6 June 2024
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