Thompson v White

[2007] NSWSC 733

CITATION:	Thompson v White [2007] NSWSC 733
HEARING DATE(S):	26/06/07
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
EX TEMPORE JUDGMENT DATE:	26 June 2007
DECISION:	Notice of motion to have contempt charge struck out dismissed.
CATCHWORDS:	WORDS & PHRASES- "Dispose of any interest in the property"- Mortgaging a property under the Torrens system is such a disposition.
LEGISLATION CITED:	Supreme Court Act 1970
CASES CITED:	Alati v Wei Shung (2000) 34 ACSR 489 Commonwealth v South East Queensland Aboriginal Corporation for Legal Services (2005) 219 ALR 180 Ziade Investments Pty Ltd v Welcome Homes Real Estate Pty Ltd (2006) 57 ACSR 693
PARTIES:	Byron Ward Thompson (P) Julian John White (D1) Stephen Joseph Blanks (Third Party)
FILE NUMBER(S):	SC 2685/03
COUNSEL:	G L Raffell (P) 1st defendant in person T Brennan (Third Party)
SOLICITORS:	Brown & Partners (P) SBA Lawyers (Third Party)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Tuesday 26 June 2007

2685/03 – THOMPSON v WHITE

JUDGMENT

1 HIS HONOUR: I am concerned today with allegations of contempt of Court against a litigant and a solicitor. Before dealing with the motions based on contempt against the solicitor, I need to deal with a motion filed by the solicitor on 30 March 2007 to strike out the charge of contempt against him. I will not go into great detail in these reasons because I do not want people to think that I have reached conclusions in the substantive matters and, indeed, I have not; but it is necessary to deal with some of the allegations and counter-allegations in order to dispose of this motion.

2 The alleged contempt arises from an order that was made by Justice Hamilton on 13 May 2003. Order 2 reads as follows:

“The plaintiff by himself and his servants and agents be restrained from selling or disposing of any interest in the property known as 710 Wiseman's Ferry Road, Somersby ... until further order".

3 The allegation against the solicitor is that on 21 October 2005, the plaintiff, as one of two registered proprietors of the relevant property, together with his wife, the other registered proprietor, mortgaged the property with the ANZ Bank for $120,000; $100,000 of which was paid to the solicitor.

4 Mr Brennan of counsel, who appears for the solicitor, quoting a number of paragraphs from Arlidge, Eady & Smith on Contempt, 2nd ed (Sweet & Maxwell, London, 1999), put that where there is an ambiguity in a Court order, that the defendant in contempt proceedings must be given the benefit and the order must be construed contra proferentem against the prosecutor.

5 Mr White, the first defendant, who appeared for himself, said that that was a rather odd submission seeing that the solicitor himself had been actively involved in drafting the order. I record that comment, but I do not know as a matter of fact at this stage whether the solicitor was engaged in and about framing the order or not. It matters not because to my mind there is just no ambiguity in the order at all. In other words, I accept the principle submitted by Mr Brennan, but do not consider it to be of any relevance.

6 Mr Brennan focuses on the word "disposing" and he points out that the word "disposed", and its various parts, is a word which can mean different things in different contexts, but that ordinarily the word connotes a carving out of property and transferring what is carved out to another person; or alternatively, transferring the whole of the property to another person; see Commonwealth v South East Queensland Aboriginal Corporation for Legal Services (2005) 219 ALR 180 at 192.

7 Mr Brennan put that a Torrens system mortgage does not involve a disposition of property. It is a mere hypothecation or charge. With great respect, I disagree with that submission. There are authorities to the view that despite the nature of a Torrens system mortgage, it ordinarily is considered to be a disposition of property; see the cases referred to by Mr White in his submissions such as Alati v Wei Shung (2000) 34 ACSR 489 at [10] and Ziade Investments Pty Ltd v Welcome Homes Real Estate Pty Ltd (2006) 57 ACSR 693 at [77]. Mr Brennan acknowledges that the word can, on occasions, have that meaning, but says that it is not its prime meaning and that the word is ambiguous.

8 It is of course very significant in this case that the word "disposing" is used in connection with the phrase "any interest in the property". However with respect, it is, I would have thought, plain to anybody that the order made by Justice Hamilton was an order preserving property. If one mortgages property so that the value of the owner's interest is diminished by $120,000, then it would seem to me that clearly, in the way in which this order was directed, that is a disposition of an interest in the property.

9 The next matter is whether the charge indicates the appropriate mental element required for the court to find against the solicitor. Again, Mr Brennan truly put that for disobedience of an injunction by a non-party there must be knowledge and there must be an intentional interference with the judicial process with the intention to frustrate the operation of that process. Again, I accept that, but the mental element is not one that needs to be a subjective intention. Here, the allegations appear to be that the solicitor was the solicitor for the plaintiff, he was in court, knew what the case was all about, and that he assisted the plaintiff to mortgage the property in order to pay his own costs. It would seem to me that there is sufficient allegations there to show that, if established, the so-called mental element is there.

10 The third question is whether the charges adequately specify the contempt, but despite what Mr Brennan has put, I cannot see any deficiency in them; and even if there was a deficiency, it was just a matter of there being an appropriate amendment. There is no doubt at all that the Statement of Charges charges his solicitor with knowing about the order of the Court, and enriching himself by a disposition of property contrary to the order made by Justice Hamilton. That is a sufficient indication of a very serious allegation that is made against him.

11 It is then put that under the Supreme Court Act 1970, this case should have been brought by separate summons in the Common Law Division and that that is a reason why there is no jurisdiction to hear it on this motion. The matter having been brought to the attention of the Court, any section of the Court is, in my view, able to deal with it and the only consequence of this submission succeeding would be that I would adjourn for a few minutes whilst Mr White commenced a new summons and I would then sit in the Common Law Division to hear it. I cannot see any reason why the matter should not proceed and I dismiss the notice of motion of 30 March 2007 with costs.

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