Bowie v Weyburne
[2013] NZHC 1728
•7 August 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2011-485-2627 [2013] NZHC 1728
IN THE MATTER of an application for Contempt of Court BETWEEN
ALISON FRANCES BOWIE, TAYLOR ASSOCIATES TRUSTEE COMPANY LIMITED and INDEPENDENT TRUST COMPANY (2011) LIMITED as trustees of The Bowie Trust
Plaintiff
AND
BRIAN PHILLIP WEYBURNE and JILLIAN MARIE WEYBURNE Defendant
Hearing: 8 July 2013 Appearances:
R.J.B. Fowler QC & D.J.S. Parker - Counsel for the Plaintiffs
J.A. Langford - Counsel for the DefendantsJudgment:
7 August 2013
JUDGMENT OF D GENDALL J
Introduction
[1] The plaintiffs who are trustees of a Trust known as the Bowie Trust (the Bowie Trust) seek an order that the defendants be held in contempt for breach of an undertaking to the Court dated 22 February 2012 and be fined in respect of such contempt.
[2] The application for an order for contempt was filed on 4 April 2013 and opposed by the defendants in a Notice of Opposition filed 28 June 2013.
[3] At the outset, Mr Fowler QC, counsel for the plaintiffs confirmed that the order for contempt sought by the Bowie Trust was now one sought against the first-
BOWIE, TAYLOR ASSOCIATES TRUSTEE COMPANY LIMITED and INDEPENDENT TRUST COMPANY (2011) LIMITED as trustees of The Bowie Trust v WEYBURNE [2013] NZHC 1728 [7 August 2013]
named defendant Bryan Phillip Weyburne (Mr Weyburne) alone, and that the second-named defendant, his wife Jillian Marie Weyburne (Mrs Weyburne) was released as a party to this contempt proceeding. Mrs Weyburne, however, is to remain as a defendant party to the substantive proceeding itself. No objection to this was raised by Mr Langford who appeared as counsel for Mr Weyburne.
[4] The case before me concerned a breach of the undertaking which was given to the Bowie Trust and the Court at the time to avoid the need for an interim injunction to issue. The background to this matter involves some considerable history dating back as far as 2006. The Bowie Trust and Mr and Mrs Weyburne are neighbours. They own apartments in a block at 308 Oriental Parade, Wellington, the Bowie Trust at Apartment 5 and the Weyburnes immediately above (and partly behind) at Apartment 6. A problem developed for these neighbours several years ago involving significant water leakage from the deck of Mr and Mrs Weyburnes’ Apartment 6 through the roof and into Apartment 5 of the Bowie Trust underneath.
[5] This leaking resulted in some major work being undertaken to the deck of Apartment 6 by Mr and Mrs Weyburne in October 2011. It involved contractors uplifting the tiles and membrane to the deck and replacing them with what was thought to be a waterproof surface. It seems this attempt generally was unsuccessful and whilst the deck area was uncovered substantial additional leaking was caused by rain passing through the roof of the Bowie Trust’s Apartment 5.
[6] Injunction proceedings were initiated by the Bowie Trust on two occasions in December 2011 and early 2012. These culminated in the undertaking which is in question here being provided by Mr and Mrs Weyburne to the Bowie Trust and the Court.
[7] The full text of this 22 February 2012 undertaking (the undertaking) was as follows:
Undertaking
I, Bryan Weyburne, on behalf of my wife Jillian Weyburne and I, as owners of apartment 6,
308 Oriental Parade, Wellington, undertake to the Court as follows:
1. We will do everything reasonably required, to end a nuisance, being water leakage from
our property at apartment 6, 308 Oriental Parade, Wellington (“our property”) into Mrs
Bowie’s property at apartment 5, 308 Oriental Parade, Wellington (“Mrs Bowie’s property”).
2. We are committed to fixing the water leakage problem and will leave no stone unturned until the problem is permanently fixed.
3. The remedial work currently being undertaken to the deck and surrounding area of our property was estimated by our contractors to be finished by 5.00 pm on Wednesday, 8
February 2012 (“the present remedial work”). To the best of my knowledge, this work
was finished, but I understand that there are still leaks.
4. We will be taking all steps possible to ensure that all further and remedial work is properly undertaken as quickly as possible, if the work currently being completed has not ended the leaks.
5. When our consultant Mr Thurlow or our roofing contractor Mr Kirk declare the present remedial work finished, we or our agents will immediately advise Mrs Bowie’s solicitors that the present remedial work is finished.
6. I make it clear that the current work does not include the repositioning of planter boxes around the perimeter of our deck. This should not be done, until all parties are satisfied that the leaks have stopped.
7. I will immediately cause or permit a canopy consistent with that proposed by Prendos Ltd in its email dated 17 January 2012, and meeting WCC’s requirements (if any) to be erected with urgency as soon as possible and by no later than Monday, 5 pm on 5 March
2012. Such canopy is to be kept in place until there is agreement that the leaks have been fixed, or as the Court otherwise orders.
8. I will ensure my solicitors and/or remediation consultants have all necessary authority to do all things necessary to give effect to this undertaking if I am overseas or otherwise unavailable.
[8] It is now over 17 months since that undertaking was given. A number of consultants have been engaged by Mr Weyburne and some testing of the deck area of Apartment 6 has been undertaken. According to the Bowie Trust, this work has been entirely spasmodic and effectively came to an end in particular when what is described as a “wall of silence” occurred between about December 2012 and March
2013. It is this which has triggered the present application.
[9] The position advanced by the Bowie Trust is that there can be no question here that the undertaking has been substantially breached by Mr Weyburne. Mr Weyburne disputes this but contends that even if there has in fact been a breach of undertaking, that breach has not been wilful or deliberate.
[10] The issues before the Court therefore are:
(a) Is Mr Weyburne in fact in breach of the undertaking to the Court? (b) If so, are the breach or breaches deliberate and wilful?
(c) If (a) and (b) are satisfied what penalty if any should be ordered against Mr Weyburne?
Legal Principles
[11] The legal principles relevant to the determination of the present application for Mr Weyburne to be found in contempt of Court are not in contention and they are broadly set out in Jones v Sky City Auckland United as follows:1
(a) An undertaking given to the Court by a person in pending proceedings, on the face of which the Court sanctions a particular course of action, has the same force as an injunction, and a breach thereof is contempt of Court.
Malevez v Knox [1977] 1 NZLR 463, 467: 9 Halsbury’s Laws of England
(Fourth Edition) para 75.
(b) The words of the undertaking must be read against the relevant background and given the ordinary meaning (Malevez v Knox at page 467).
(c) The breach of undertaking must be proved beyond reasonable doubt. (Country Colours Limited v Resene Paints Limited (CP.2153/91, High Court Auckland, 29 September 1992, Anderson J); Television New Zealand Limited v Newsmonitor Services Limited [1997] 12 PRNZ 168; Kang v Yu [1993] 13 PRNZ 380, 383.
(d) The breach must be proven to be deliberate and wilful (Country Colours Ltd v Resene Paints Limited; Douglas Pharmaceuticals Limited v Nutripharm Farm NZ Limited (No 2) (1998) 12 PRNZ 176; Morris v Douglas [1996] 10 PRNZ 363, Paterson J at p 366:
The conduct must be shown to have been contumacious or wilful and it is necessary to establish that conduct to the standard of proof beyond reasonable doubt. Casual, or accidental, or unintentional disobedience to an order of the Court is not enough to justify either sequestration or committal. If disregard is wilful, then it is contumacious.
[12] Additionally, in Neuronz Limited v Tran, Williams J noted:2
[100] The corollary is that those who have given undertakings to the Court are not at liberty simply to disregard them or act in breach because they take the view that circumstances have changed, orders obtained – especially those obtained ex parte – were made without full disclosure of the circumstances or that in some way the orders are no longer operative or appropriate. Litigants who have given undertakings to the Court are bound by them. If they wish to be released, the appropriate course is to apply to the Court for release with, in appropriate cases, an offer of undertakings on different terms (Cutler v Wandsworth Stadium Ltd [1945] 1
All ER 103, 105; Laws NZ Contempt of Court para 75, p 68).
[13] And, when considering the relevant legal principles it is necessary to do so with reference to the following aspects:
1 Jones v Sky City Auckland United HC Auckland, CP229: SW01, 6/7/2001 at [3].
2 Neuronz Limited v Tran HC Auckland, CP623/SW01, 14/5/2002.
(a) whether a plaintiff has made out a case for imposition of a fine; and
(b)whether the evidence supports the view that at least costs are payable by a defendant.
[14] If it is proven beyond a reasonable doubt that a defendant deliberately and wilfully breached the undertaking, that defendant will be susceptible to a fine. Part of the fine may be awarded to the aggrieved party. However as the Court noted in the leading decision of Taylor Brothers Ltd v Taylors Group Ltd:3
The contempt jurisdiction exists in the public interest as a sanction to ensure that orders of the Court are complied with. An element of a means to the public institution should also be present in a fine.
[15] As to the amount of the fine, the Court may exercise its inherent jurisdiction to impose fines for contempt in circumstances where an undertaking has been breached having regard to the seriousness of the breach – Neuronz Ltd v Tran.
[16] The orders sought by the Bowie Trust here are:
(a) That Mr Weyburne be held to be in contempt of Court for deliberately and wilfully breaching the undertaking.
(b)If Mr Weyburne remains in contempt of court by failing to comply with the undertaking he pay a fine of $5,000.00.
(c) This matter be listed in the Judge’s Chambers List every two months to
monitor compliance with the undertaking.
(d) Costs of this application on an indemnity basis be paid by
Mr Weyburne.
[17] It is clear this Court has jurisdiction to make the orders sought here under its inherent jurisdiction pursuant to s 16 Judicature Act 1909 on the following basis:
(a) Breach of an undertaking given to Court is misconduct amounting to
contempt governed by the Court’s inherent jurisdiction – Taylor v
Attorney General and Neuronz Limited v Tran.
3 Taylor Brothers Ltd v Taylors Group Limited [1991] NZLR 91 (CA).
(b)The Court has inherent jurisdiction to impose fines for contempt having regard to its seriousness – Neuronz Limited v Tran.
(c) Under the Court’s inherent jurisdiction, there are no legal limits to the
penalty that may be imposed whether by way of fine or imprisonment
– Solicitor General v Radio Avon Limited [1978] 1 NZLR 225.
(d)Indemnity costs can be awarded in cases of contempt for breaches of undertakings where appropriate – Neuronz Limited v Tran.
Is Mr Weyburne in fact in breach of the undertaking to the Court?
[18] A key issue in this case is whether Mr Weyburne breached the undertaking to the Court. Specifically, a fundamental issue is whether Mr Weyburne is sufficiently complying with his undertaking by now leaving any further repairs to his Apartment
6 to the Body Corporate (which as I understand it plans now to engage consultants to investigate, advise and assist with repairs to the complex including repairs to units 5 and 6 as a priority).
[19] On this issue, the Bowie Trust stance is that Mr Weyburne is not complying with his undertaking by simply deferring action pending steps to be taken by the Body Corporate.
[20] In this regard, the Bowie Trust contends the current position can be summarised as follows:
(a) Mr Weyburne’s position apparent from his affidavit filed in this matter is that:
The Weyburnes accept their deck still leaks; They have no consultant engaged at present;
They have undertaken no work beyond testing since October
2012; and
They propose that the repair work now be left to the Body Corporate to address problems with the building in a co-ordinated way.
(b)The Body Corporate itself briefly in October 2012 engaged consultants, Helfen Limited, as leaking building remediation specialists. Shortly thereafter, the Body Corporate dismissed Helfen Limited and apparently it is now at the stage of compiling a short list of consultants to investigate and then advise on repairs required to the overall complex. It is acknowledged that in this process the Body Corporate proposes to give priority to repair of units 5 and 6.
(c) The Bowie Trust’s view is that it is not sufficient for Mr Weyburne to defer acting in accordance with the undertaking merely because the Body Corporate has indicated it will investigate issues with the complex as a whole. The Body Corporate’s indication that it will look to engage a consultant does not relieve the Weyburnes’ obligation to comply with their February 2012 undertaking, an undertaking which specifically stated “we are committed to fixing the water leakage problem and will leave no stone unturned until the problem is permanently fixed.” (Emphasis added.) And this is an undertaking which was given in the context of a continuing acknowledged water leakage nuisance impacting in a major way on the Bowie Trust’s apartment.
(d)Prendos, the experts engaged for some time by the Bowie Trust, have provided a scope for the works required to permanently fix the leaks occurring from the deck of Apartment 6. That work is able to be undertaken to the Weyburne property only and is clearly the responsibility of the Weyburnes. It is said that it is able to be done independently of the works that may later be done by the Body Corporate. There is no reason, according to the Bowie Trust, why Mr Weyburne should not arrange for the repairs to be undertaken immediately. To fail to do so is to continue to breach the undertaking.
[21] The Bowie Trust complains that it will take months if not years from now for the Body Corporate to complete its work and endeavour to stop the leaks to Apartment 5. This is because it will take time to decide on and engage a consultant,
for that new consultant to undertake investigations, and then for ultimate repairs to be undertaken. Meanwhile, the deck on Apartment 6 still leaks into the Bowie Trust’s apartment. The canopy which has been erected over this deck, which was to some extent effective in the past, has been ripped and it is said it needs repair and maintenance. Deferring action to stop the leaks and nuisance pending whatever action the Body Corporate might or might not take will mean the continuation of what is described as an intolerable situation for the Bowie Trust and Mrs Bowie, the occupant of Apartment 5, in particular. Mrs Bowie deposes in an affidavit before the Court that the ongoing leaks are having a significant effect on her health and wellbeing. A doctor’s letter to this effect is annexed as Exhibit AFB-18 to Mrs Bowie’s third affidavit.
[22] The undertaking in question here is outlined at [7] above. The ordinary meaning of the undertaking as I see it is that the Weyburnes would as soon as possible undertake the necessary repairs to their Apartment 6 to stop the nuisance, and in the meantime erect a weather tight canopy to protect the Bowie Trust apartment. The language used in the undertaking is clear and unequivocal. It states, amongst other things:
“We will do everything reasonably required to end a nuisance being water leakage from our property at Apartment 6...into Mrs Bowie’s property at Apartment 5...”
“We are committed to fixing the water leakage problem and will leave no stone unturned until the problem is permanently fixed.”
“We will be taking all steps possible to ensure that all further and
remedial work is properly undertaken as quickly as possible...”
“I will ensure my solicitors and/or remediation consultants have all necessary authority to do all things necessary to give effect to this undertaking if I am overseas or otherwise unavailable”
[23] Currently it seems to be accepted that the weather tight canopy which had been erected is in some disrepair and is no longer protecting Apartment 5. Other than some testing work in December 2012 Mr Weyburne seems to confirm that there has been no work on the property since October 2012. Mrs Bowie deposes in her affidavit evidence that in fact there has been no repair work undertaken at the Weyburnes’ property since July 2012, and the leaks are still present and substantial.
[24] Further, it seems that the Weyburnes have failed to comply with Notices to Fix issued by the Wellington City Council on 7 October 2011 and 18 May 2012 which both required the Weyburnes to repair the deck and apply for a Certificate of Acceptance. They have also it seems failed to comply with a further Notice to Fix issued by the Council on 18 December 2012 which required the Weyburnes to apply for a Building Consent for repairs to the deck by 18 February 2013 and to undertake the repairs and apply for and obtain a code compliance certificate within two months of the date of issue of the Building Consent. It seems that on two occasions the Weyburnes have unsuccessfully applied to the Council for a Certificate of Acceptance for work they have carried out to the deck, even though it is alleged they have known that the deck still leaks into the Bowie Trust’s apartment and therefore the works are inadequate.
[25] As I have noted above, some time ago the Bowie Trust engaged acknowledged expert weather tightness and remediation consultants Prendos Limited. That company has identified various deficiencies with the work undertaken so far by the Weyburnes’ previous consultants and contractors in their unsuccessful attempts to fix the leaking problem. In 2011 Prendos Limited provided a scope of works with costings to complete the necessary work. Their expert reports appear to show that the leaking deck membrane needs to be completely replaced together with other works to achieve a proper repair. They are of the view that the required works can be done independently of the repairs to the complex as a whole anticipated by the Body Corporate. Despite this, no attempts have been made by the Weyburnes to take up these expert recommendations from Prendos Limited.
[26] In his March 2013 affidavit, Mr Weyburne notes that when the original consultant he had engaged retired in late 2012, he engaged Mr Thomas Wutzler of Helfen Limited. He is also an acknowledged weather tightness and remediation expert in the Wellington area. Mr Weyburne, however, terminated Mr Wutzler’s engagement shortly thereafter in late December 2012, he says now because he was tardy. Mr Wutzler has himself provided an affidavit in this proceeding confirming that the results of his testing showed water leakage continuing from the Weyburnes’ deck into Apartment 5 below. His preliminary view was that the leaks into the
apartment owned by the Bowie Trust had been caused by failure of the membrane on
the Weyburnes’ deck.
[27] And, since December 2012, nearly eight months ago, it is difficult to escape the conclusion here that little has happened on the part of the Weyburnes.
[28] Before me, Mr Langford, counsel for Mr Weyburne contended that in fact when the engagement of Mr Wutzler of Helfen Limited was terminated in late December 2012, Mr Weyburne, in January 2013, briefly engaged another consultant/engineer, Mr Dick Joyce, before being advised that the Body Corporate was about to commence action in an attempt to deal with the leaking issue for the entire apartment complex as a whole. No further action appears to have been taken by Mr Joyce.
[29] Prior to that, Mr Langford notes that Mr Weyburne had engaged a Mr Thurlow as a consultant on remediation matters and that Mr Thurlow had certain discussions with Prendos. Mr Thurlow’s engagement, however, it seems terminated in October 2012.
[30] From the evidence before the Court, and confirmed in Mr Langford’s submissions before me, it is clearly acknowledged by Mr Weyburne that water still leaks into Apartment 5, although he contends the problem has diminished. Mr Langford says that improvements have occurred particularly since Mr Weyburne’s son, approximately two months ago, arranged to have the canopy reconfigured. Mr Langford notes also that some time ago in his efforts to identify the leaks, Mr Weyburne engaged a company called “Seek a Leak” to carry out thermal imaging but “this was not the magic wand that was hoped for”.
[31] Mr Langford also described Mr Weyburne as a 72 year old real estate agent and someone who does not have the skills, knowledge or vigour personally to identify and fix the leaks himself. It is said he did not cause the leaks, nor was he told that leaks had been a longstanding problem in the apartment block before he purchased Apartment 6. He complains that he inherited the problem and has been
required to rely on other people, including professionals, to identify the leaking problems and attempt to carry out repairs.
[32] Despite what is said to be his frustrations along the way, Mr Weyburne argues now that there can be no basis for alleging that he has been in breach of his undertaking at least up until February 2013. This is because he had engaged Mr Thurlow as his consultant/engineer until October 2012 when he retired. Mr Wutzler of Helfen Limited was then engaged but “unfortunately Helfen did not get on with the job and they were terminated at Christmas 2012.” The new consultant/engineer, Mr Dick Joyce, was then engaged in January 2013 but did not get properly involved before the Body Corporate itself decided to take overall action concerning the leaks. Mr Weyburne’s position is that it can only be the narrow period from February to April 2013, when the present contempt application was filed, which should be the focus here.
[33] Next, Mr Weyburne endeavoured to argue that, as there are other leaks throughout the whole apartment block and in February 2013 the owners resolved to accept a proposal under which the Body Corporate would address the leakage problem for the entire building, the present difficulties need to be left to the overall Body Corporate’s solution for final remedy. As to this, Mr Langford noted that s
138(2) of the Unit Titles Act 2010 requires a Body Corporate to maintain, repair or renew all building elements and all infrastructure that relates to or serves more than one unit in a complex. He argued that Mr Weyburne’s deck services the roof of Apartment 5 so it therefore must be seen as serving more than one unit. In addition, “building elements”, he submits, must include decks. It is Mr Langford’s argument therefore that the Body Corporate itself has an absolute obligation to take on the repair of the deck and its surrounds here.
[34] Further, Mr Langford argued that s 80 of the Unit Titles Act 2010 provides that owners of a principal unit in a development such as this must do all things necessary to give effect to decisions of the Body Corporate and allow it on reasonable notice to enter units for the purpose of maintaining or repairing building elements. It is suggested therefore that Mr Weyburne has a legal obligation to abide
by the decisions of the Body Corporate, as does the Bowie Trust, and the resolution relating to repairs for the entire complex.
[35] On these aspects, Mrs Bowie notes in her fourth affidavit that she supports the Body Corporate’s intention to investigate and undertake repairs to the building as a whole but she argues that there is no reason why the Weyburnes cannot honour their undertaking and immediately proceed with the necessary work to repair their deck and the canopy.
[36] This position is supported by the evidence before the Court from Prendos Limited that there is no reason for remediation of the defendant’s deck to be postponed until the balance of the building is investigated and repaired, particularly as this will take some time.
[37] On these aspects it is useful to note the decision in Body Corporate 172108 v Mead & Ors4 where the Court held that repair work by one unit owner to the penthouse of an apartment block did not have to be carried out contemporaneously with repair work being carried out by the Body Corporate to the balance of the building. It does seem in the present case too that the work required to the deck of Apartment 6 by the Weyburnes can be undertaken discretely.
[38] In answer to the question posed at paragraph [18] above, there is no doubt in my view here that Mr Weyburne in fact is in breach of the undertaking outlined at paragraph [7] above both to the Bowie Trust and the Court. The undertaking given in February 2012 was clear, detailed and unequivocal. As noted above, it was an undertaking provided to avoid the need for an injunction order to be made.
[39] Since that time, some work has been undertaken to the property but it seems little has occurred in recent times, possibly since even July 2012. Certainly, even on Mr Weyburne’s own acknowledgment, little has happened on his part since February
2013 as he claims this has now effectively become a Body Corporate responsibility. I disagree. The undertaking given was quite clear in its terms and personal. The water leakage problem remains, and it is, serious. This seems to be accepted by all
parties. It must have had, and continues to have, a detrimental effect on Mrs Bowie and the Bowie Trust. The undertaking given in February 2012 was directed at remedying that situation precisely. The ordinary and plain meaning of the words in the undertaking, given the context of an acknowledged nuisance, are clear. Mr Weyburne undertook to “leave no stone unturned” until the problem was finally fixed and that he would “ensure that all further and remedial work is properly undertaken as quickly as possible” to end the leaks. From all the evidence before the Court there can be no doubt that this has not occurred nearly 18 months after the undertaking was given. Accordingly I find that Mr Weyburne is in breach of this undertaking to both the Bowie Trust and the Court.
If so, is/are the breach/breaches deliberate and wilful?
[40] On this aspect, Mr Langford contended that any breaches of the undertaking here were not deliberate or wilful. He contends Mr Weyburne has done his best and that, given the recent involvement of the Body Corporate, if there has been a breach it is purely a technical one. But, I take a different view.
[41] And, on these aspects Mr Fowler QC, for the Bowie Trust, contended that a proper conclusion here can only be that the breaches of the undertaking by Mr Weyburne were deliberate and wilful. There is no argument that the Weyburnes do not currently have their own consultants engaged and they are not proposing to do any further work on their deck. Instead, they suggest that Mrs Bowie and the Bowie Trust should simply endure the continuing property damage, stress and health consequences of waiting until the Body Corporate has itself chosen a consultant, that consultant has completed its investigation, contractors are chosen and engaged and work is finally undertaken to repair the leaks, no matter the period of time which might be required for this to occur. It is clear to me that, in choosing that approach alone, Mr Weyburne is deliberately and wilfully making a decision not to comply with the strict terms of his undertaking. The situation in which Mrs Bowie and the Bowie Trust found itself in February 2012 when the undertaking was given was no doubt seen by all as an entirely intolerable one with water leaking into their apartment and yet that situation continues today. This is in spite of the Weyburnes’
acknowledgment of the nuisance and their undertaking to “leave no stone unturned”
until the water leakage problem “is permanently fixed”.
[42] In his submissions before me, Mr Langford argued that Mr Weyburne’s conduct here was simply casual and unintentional at worst. According to Mr Langford, in his affidavit Mr Weyburne acknowledged that any remediation work, whoever does it, will be expensive and that he, Mr Weyburne, is “not trying to avoid this and is prepared to pay”. These comments, in my view, fly in the face of the overall present position adopted by Mr Weyburne that he should not be required to do anything further at this point to stop water continuing to leak into the Bowie Trust apartment and that these matters should be left solely to the Body Corporate to remedy. In my view, this puts beyond any reasonable doubt the fact that Mr Weyburne’s breach of his undertaking here is both deliberate and wilful and his decision to disregard honouring the undertaking must be seen as contumacious.
If so what penalty, if any, should be ordered against Mr Weyburne?
[43] In the present case, Mr Weyburne’s breach of his undertaking is a serious and continuing one. I have found that it is both deliberate and wilful, and constitutes contempt. In my view this is an appropriate case for Mr Weyburne to be susceptible to a fine. A modest fine in the order of $5000 is sought and, as I see it, the circumstances here warrant a fine of this magnitude. An order to this effect is to follow.
[44] In their application, the Bowie Trust also sought an order that this matter be listed in the Judge’s Chambers List every two months from now to monitor compliance with the undertaking on the part of Mr Weyburne. In my view, this is appropriate. An order to this effect is also to follow.
[45] Finally, costs on the present application were sought by the Bowie Trust on an indemnity basis to be paid by Mr Weyburne. In National Australia Bank Limited v Juric (No. 2)5 Gillard J observed at paragraphs [67] and [68] that where a contempt
of Court is made out, the normal course is to order the person in breach to pay costs on a solicitor/client basis.
[46] In Neuronz Limited v Tran, although Williams J acknowledged that ordering costs on an indemnity basis was not always seen as a universal practice, he went on to say it is clear that costs on this basis can be awarded in appropriate cases, particularly where there has been egregious behaviour on the part of those who are in contempt. This is such a case.
[47] Indemnity costs on a full solicitor and client basis, similar to the award which was made in Jones v Sky City Auckland Limited (at [35]) are appropriate therefore and are to be awarded here. This is in line too with the decision in Shotover Jet Ltd v Butterfli Enterprises Ltd and r 14.6(4)(b) of the High Court Rules.6
Conclusion
[48] For all the reasons outlined above, the present application by the Bowie Trust succeeds. Orders are now made, therefore, as follows:
(a) Bryan Phillip Weyburne (Mr Weyburne) is held to be in contempt of Court for deliberately and wilfully breaching the undertaking given to the Court on 28 February 2012 outlined at paragraph [7] above.
(b)Mr Weyburne remains in contempt of Court at this point by failing to comply with the undertaking and is therefore ordered to pay a fine of
$5000 (which is to be paid as to $2500 to the Bowie Trust and as to
$2500 to the Crown).
(c) This matter is to be placed in the Judge’s Chambers List at regular interviews every two months from today and thereafter, to monitor compliance with the undertaking outlined at paragraph [7] above which undertaking is to be complied with by Mr Weyburne.
(d)Mr Weyburne is to pay the Bowie Trust costs of this application on an indemnity solicitor and client basis together with disbursements as approved by the registrar. In this regard, I certify for two counsel.
...................................................
D Gendall J
Solicitors:
RJB Fowler, Wellington
Langford Law, Wellington
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