Westpac Banking Corporation v Burke - [2011] NSWSC 549

Supreme Court

New South Wales

Medium Neutral Citation: Westpac Banking Corporation v Bruce Patrick Burke [2011] NSWSC 549
Hearing dates: 3 June 2011
Decision date: 03 June 2011
Jurisdiction: Equity Division
Before: Bergin CJ in Eq
Decision:
Application allowed

Catchwords: [CONTEMPT] - [PRACTICE AND PROCEDURE] - application to rely on evidence served late - failure to comply with directions - application for adjournment to explain delay - issue of whether adjournment efficacious where application for order that defendant in contempt for failure to deliver up machinery pursuant to Consent Orders - and where order relied upon did not include notice required under Rule 40.7(3) of the Uniform Civil Procedures Rules 2005
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Anderson v Hassett [2007] NSWSC 1310
Australia Securities Commission v MacLeod (Federal Court of Australia, 24 February 1993, unreported)
Davies v Beyond Building Systems Pty Ltd & Ors [2009] NSWSC 1282
Duncan-Strelec v Tate [2008] NSWSC 1145
Leung v Good Friend Development Pty Ltd [2008] NSWSC 142
McDonnell v Novello [2006] NSWSC 1186
McGuirk v University of New South Wales [2009] NSWSC 1058
McGuirk v University of New South Wales [2010] NSWSC 448
NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118
Toben v Jones [2009] FCAFC 104
Category: Interlocutory applications
Parties: Westpac Banking Corporation (Plaintiff)
Bruce Patrick Burke (First Defendant)
Representation: Counsel:
S Ipp - Plaintiff
M Dulhunty - First Defendant
Solicitors:
DLA Phillips Fox (Plaintiff)
Rishworth Dodd & Co (First Defendant)

File Number(s): 2010/00097113
Publication restriction: Nil

Judgment - ex tempore

This is an application brought by the plaintiff for the adjournment of a Notice of Motion seeking orders, inter alia, that the defendant be found to be in contempt of court orders.

On 27 August 2010 the plaintiff, Westpac Banking Corporation, and the first defendant, Bruce Patrick Burke (the defendant), entered into Consent Orders made by Macready AsJ requiring the first defendant to give possession to the plaintiff of two John Deere Harvesters, one manufactured in 1996 and the other in 2001. There was no timeframe in the order within which the Harvesters were to be delivered up to the plaintiff. That was rectified on 25 October 2010 when Consent Orders were made varying the Order of 27 August 2010 to fix the date for delivery up as 5 November 2010.

The defendant did not comply with the Orders and on 20 December 2010 the plaintiff's solicitors, DLA Phillips Fox, wrote to the defendant's solicitors, Rishworth Dodd & Co, in terms that included the following:

Mr Burke has failed to deliver the Mortgaged Property to the Bank by 5 November 2010 in accordance with order 2 of the Orders. The Bank intends to proceed with an action for contempt in relation to Mr Burke's failure to comply with the Orders.

Please confirm by return that you still act for Mr Burke.

On 13 January 2011 Rishworth Dodd & Co replied in the following terms:

We refer to previous correspondence and would advise that our…

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.

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Details

Case: [2011] NSWSC 549
Decision Date: 03 June 2011

CaseChat Overview and Summary

The case before the court was an application by Westpac Banking Corporation against Burke. The dispute centred around an application to rely on evidence served late, failure to comply with court directions, and an application for an adjournment to explain the delay. The matter was heard in the Supreme Court of New South Wales. The primary legal issue the court needed to decide was whether an adjournment would be efficacious in the context of an application for an order that the defendant was in contempt for failing to deliver up machinery pursuant to Consent Orders. A secondary issue was whether the order relied upon by the applicant included the necessary notice required under Rule 40.7(3) of the Uniform Civil Procedures Rules 2005.

In addressing these issues, the court considered the provisions of the Uniform Civil Procedures Rules 2005 and the specific requirements for serving notices in contempt proceedings. The court noted that Rule 40.7(3) stipulates that a notice of motion for an order of contempt must contain a statement of the grounds on which the motion is founded. The court examined whether the notice provided by the applicant complied with this requirement. The court also considered the circumstances leading to the delay in serving the evidence and the reasons provided by the applicant for the adjournment. Ultimately, the court determined that the notice did not comply with Rule 40.7(3) and that the application for an adjournment was not justified given the context of the contempt application. The court concluded that the adjournment would not serve the interests of justice and dismissed the application.

Orders