Toyota Finance Australia P/L v Triple D J Nominees P/L & Ors No. DCCIV-02-1083
[2002] SADC 138
•4 November 2002
TOYOTA FINANCE AUSTRALIA PTY LTD
VTRIPLE DJ NOMINEES PTY LTD 097 965 850
and
JOHN KALANTZIS
and
DENIS KAKOLIRIS[2002] SADC 138
Judge Lunn
REASONS ON PLAINTIFF’S APPLICATION TO ISSUE A WARRANT FOR THE ARREST OF THIRD DEFENDANT FOR CONTEMPT
The following background facts are taken from the Plaintiff’s statement of claim. The first defendant, Triple DJ Nominees Pty Ltd, conducted a motor vehicle sales and rental business. It entered into 15 agreements to lease motor vehicles from the Plaintiff. Its obligations under those agreements were guaranteed by each of John Kalantzis, the second defendant, and Denis Kakoliris, the Third Defendant. In addition, the Third Defendant entered into two hire purchase agreements with the Plaintiff to rent two further motor vehicles. The Plaintiff alleges that the defendants defaulted in their payments due under the various agreements and that all of the agreements were repudiated and terminated. In relation to the leases the Plaintiff claimed $334,159 plus interest, against all three defendants. In relation to the hire purchase agreements the Plaintiff claimed only against the Third Defendant $45,255 plus interest. (There was no pleading in the statement of claim of any right of the Plaintiff to the return of the vehicles on lease or hire purchase or of any claim for an order that they be returned to it.)
On 16 September 2002 another Judge of this Court made an order which was sealed at the instigation of the Plaintiff’s solicitors (“the Order”). It read as follows:
“.....
Date of Application: 27 August 2002
Application Made By: Plaintiff
Date of Hearing: 16 September 2002
Date of Order: 16 September 2002
Attendances: Mr M O’Donnell for the Plaintiff
Mr C Caldicott of the First and Third Defendants Ms T Wacyk for the Second Defendant
THE COURT ORDERS that:
1.In these Orders to the “Vehicles” means the following vehicles:
Year Make Model Registration No. Engine No. .... Camry WPG505 Avalon WPG507 Avalon WPG503 Hilux WPG512 Corolla WPG514 Camry WPG501 Land Cruiser WMR609 Camry WPG502 Rav4 WPG504 Camry WPG506 Rav4 WPG508 Hiace WPG509 Corolla WPG511 MR2 WPG598 Corolla WPG510 .... In these Orders all references to the “Hire Purchase vehicles” are references to the following vehicles:
Year Make Model Registration No. Engine No. Rav4 WOE929 Echo WON869
2.Until further Order the defendants be and hereby are restrained from:”
(Various restraining orders were made concerning the vehicles.)
“3.In respect of the Vehicles (except for the 2001 Toyota Camry WPG506 E/N 564435332) the defendants are to within 5 days either:
3.1Cause the said Vehicles to be delivered to Pickles Auctions, 1754 Main North Road Salisbury Plain, in the State of South Australia together with a copy of this Order and all certificates and documents necessary to transfer the registration of the Vehicles to the plaintiff; or
3.2Pay to the plaintiff what is due and owing to the plaintiff for the said Vehicles.
4.In respect of the Hire Purchase Vehicles, and (sic) the third defendant is to within 5 days either:
4.1Cause the Hire Purchase Vehicles to be delivered to Pickles Auctions, 1754 Main North Road Salisbury Plain, in the State of South Australia together with a copy of this Order and all certificates and documents necessary to transfer the registration of the Hire Purchase Vehicles to the plaintiff; or
4.2Pay to the plaintiff what is due and owing to the plaintiff for the Hire Purchase Vehicles.
5.The Court records the consent of the defendants to the following judgments (but does not yet enter judgment) as follows:”
(Various matters were set out concerning proposed monetary judgments.)
“6.Liberty to the plaintiff to apply generally and for judgment to be entered in accordance with order 5.
(Signed)
DEPUTY REGISTRAR”
There were no endorsements on the sealed Order. (The preamble to the Order refers to it being made on an application of 27 August 2002 but I cannot find any application of that date on the Court file). No sealed copy of the Order has ever been served on the Third Defendant.
None of the vehicles referred to in the Order have been delivered to Pickles Auctions, and no moneys have been paid to the Plaintiff. On 8 October a master entered monetary judgments against the defendants pursuant to the consents recorded in para.5 of the Order. The validity of this procedure has not been called in question before me, but my failure to deal with it is not to be taken as any endorsement by me that it was either a correct procedure or not relevant to the present application.
On 10 October 2002 the Plaintiff’s solicitors issued the application with which I am dealing, which sought the following orders:
“1.That the second and third defendants be brought forthwith before this Honourable Court by the Sheriff to answer a contempt alleged to be the contumacious refusal on their part respectively to obey or comply with the order made with their consent on 16 September 2002.
A warrant for the arrest of the second and third defendants be issued and that the Sheriff take the second and third defendants into custody and hold them in custody until they can be brought before the Court to answer the contempt.
An order that the second and third defendants be committed to prison for such period as this Honourable Court thinks fit for their contempt in wilfully disobeying the said order made .... on 16 September 2002.
That the requirement for personal service of the said order made .... on 16 September 2002 be dispensed pursuant to Rule 93.14 of the District Court Rules.
That the first, second and third defendants pay the costs of and incidental to this order on an indemnity basis.
Such further or other order as this Honourable Court thinks fit.
This application is brought pursuant to Rules 67, 84 and 93 of the District Court Rules.
This application is to be served upon the parties.”
The Second Defendant is separately represented from the First and Third Defendants. On 23 October an order was made by consent of counsel for the Plaintiff and the Second Defendant that the application against the Second Defendant be adjourned without a date and there be liberty to the Plaintiff or the Second Defendant to request the registrar to re-list it for hearing. I was informed that the Second Defendant had agreed to file an affidavit as to his knowledge of the whereabouts of the vehicles.
Para. 4 of the application was not pursued before me. Early in the hearing I made an informal comment to the effect that as the failure to serve the sealed Order on the Third Defendant could be relevant to whether any breach by him of the Order was wilful, it would be prejudging that issue to deal with any dispensation from service under R.93.14, other than in the context of determining para.3 on whether the Third Defendant was proved to be guilty of contempt. The Plaintiff’s counsel apparently accepted this comment and there was no further reference to para.4 in his submissions.
It was common ground that the Third Defendant is now in Greece. He has informed his solicitors that he expects to return to South Australia on 26 November 2002. At the time of the hearings before me his solicitors did not have sufficient instructions to be able to answer the affidavits filed by the Plaintiff in support of the application. His solicitor sought an adjournment until after the proposed return of the Third Defendant to enable him to get instructions. The Plaintiff’s counsel opposed any adjournment and insisted on pursuing paras.1 and 2 of the application on the material which was then before the Court. I reserved my decision.
A relatively simple answer to the application, which regrettably was not raised in the course of submissions, is sub rule 84.04(3) and (3A), which provide:
“(3)A copy of any .... order requiring any persons to do .... any act shall unless the Court otherwise orders, be served personally upon the person required to obey the same before the time specified for compliance.
(3A)Every .... order sealed by the Court requiring any person to do .... any act shall unless the Court otherwise orders have endorsed thereon a warning to the persons affected by the order of the possible consequences of their fail to obey the order.”
The sealed Order was not served on the Third Defendant within the five day period for the performance of the acts required by paras.3 and 4 of the Order, as stipulated by sub-rule (3), or at all. Furthermore the sealed Order was not endorsed with the warning required by sub-rule (3A), and so even if it had been served, the Third Defendant would not have received that warning. Where it is intended that sub-rules (3) and (3A) are not to apply to a consent order it is usual practice to include a provision to that effect in the terms of the order. Usually no process to enforce the order will be issued unless there has been compliance with sub-rules (3) and (3A) Hampden v Wallis (1884) 26 Ch.D. 746; Benabo v William Jay & Partners Ltd [1941] Ch. 52. No dispensation from compliance with sub-rules (3) and (3A) has been sought. That would raise different issues from the dispensation sought under R.93.14. In the absence of compliance with, or dispensation from, sub-rules (3) and (3A), no prima facie case has been made out of contempt against the Third Defendant which is necessary before any warrant for his arrest could issued; re Perkins [1998] 4 VR 505. While there is some authority that a defendant having actual knowledge of the order from sources other than service of a sealed copy may be sufficient to found contempt proceedings, it is a difficult question which is not appropriately pursued on an issue of whether a prima facie case has been made out or not. Accordingly, on this ground alone I dismiss the applications in paras.1 and 2 of the application as against the Third Defendant.
The following points were to some extent canvassed in the argument before me but I have not found it necessary to rule upon them. They may well arise in any subsequent applications taken by the Plaintiff:
h The Plaintiff submitted that the Order was enforceable against the Third Defendant even without service upon him because it claimed it had been made with the consent of his counsel. If the Order was made by consent, and not by an adjudication by the Judge on the merits, the sealed Order should have recorded this, but it does not. The prima facie inference from the terms of the sealed Order is that it was not made by consent. There are some documents on the court file which relate to this issue but I do not act on them. Even if the Order was made by consent, I am not aware of any authority that has decided that R84.03(3) and (3A) do not apply where the order has been made by consent, or that it is enforceable by contempt proceedings without personal service.
h S.12 of the Enforcement of Judgments Act 1991 provides:
“(1)Where a party is, by judgment of a Court, ordered to do .... an act and the party .... fails to comply with the judgment, the Court may .... issue a warrant to have the person arrested and brought before the Court to be dealt with for a contempt of the Court ....
A person cannot be dealt with under this section for failure to pay a monetary sum.”
“Monetary sum” is not defined for the purposes of the Act. It is arguable that paras.3.2 and 4.2 of the Order are orders for the payment of monetary sums. I need not determine whether s.12(2) of that Act precludes the District Court from dealing with any breaches of paras.3.2 and 4.2 by contempt proceedings. The Plaintiff argued that under the new s.48 of the District Court Act 1991, which came into operation on 3 February 2002, this Court had jurisdiction in contempt over any breaches of paras.3.2 and 4.2 without resort to s.12 of the Enforcement of Judgments Act, even though it might not have had that jurisdiction prior to s.48 coming into operation. R93.01 now defines contempt for the purposes of R93 to include:
“(g) Any contumacious refusal to obey or comply with a judgment or order of the Court”.
I need not determine whether the application before me was maintainable under s.48 and R93.
h There is copious authority that the Court will not enforce an order by contempt proceedings where that order has not been expressed in clear, explicit and unambiguous terms: Consulere Ltd v Trikon Pty Ltd (1990) 156 LSJS 8 at 24; Meat & Allied Trade Federation v The Australian Meat Industry Union [1990] 1Qd R 441 at 448-450; Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd [1998] 4 VR 220; “Laws of Australia” para.10.11.101; “Halsbury’s Laws of Australia” volume 5, para.105-285(1). As paras.3.2 and 4.2 of the Order failed to express the amount payable as a specific monetary sum it is arguable that they are too vague and uncertain to be enforced by contempt proceedings. Again, I need not decide the point.
The orders on the application will be:
1.That the applications in paragraphs 1 and 2 against the Third Defendant be dismissed.
2.Further consideration of the application is adjourned to a date to be fixed and is not to be re-listed until a party so requests.
3.Costs of the application to date to be the Third Defendant’s costs in any event against the Plaintiff.
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