CAPAAN v JOSS, MANAGING DIRECTOR, WESTPAC and ORS [No 2] CAPAAN and ANOR v WESTPAC SAVINGS BANK LTD [No 2] [1994] NSWCA 41

CAPAAN v JOSS, MANAGING DIRECTOR, WESTPAC [No 2]; CAPAAN v WESTPAC SAVINGS BANK LTD [No 2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and HANDLEY JJA 6 June 1994, 6 June 1994

[1994] NSWCA 41

CONTEMPT — procedure — commencement of prosecution — whether permissible by notice of motion to cause the Court to commence proceedings of its own — held: It is not — motion may incidentally inform Court of suggested contempt for action under Rules — but such proceedings may not be initiated by motion.

Killen and Ors v Lane and Anor [1983] 1 NSWLR 171 (CA) applied; Varley v The Attorney General in and for the State of New South Wales (1987) 8 NSWLR 30 (CA) referred to.

PRACTICE and PROCEDURE - Court of Appeal - contempt of court - initiated by notice of motion - procedure unavailable - complainant might initiate proceedings of his own as prosecutor in own name - but motion, as brought, properly dismissed - summons for leave to appeal from order of dismissal, dismissed. Supreme Court Act 1970, s48(2)(i) and 48(4)(a). Supreme Court Rules Pt55 R11.

ORDER Summons dismissed with costs.

Kirby P Before the Court is a summons for leave to appeal.

A BANK OBTAINS JUDGMENT AND AN ORDER FOR POSSESSION

Westpac Savings Bank Ltd (the bank) commenced proceedings by a statement of claim against Mr B Capaan and his wife, Mrs E Capaan. The bank sought judgment against Mr and Mrs Capaan. The bank was seeking to recover what it claimed to be the unpaid principal and interest in respect of moneys which it alleged that it had lent to Mr and Mrs Capaan.

Mr and Mrs Capaan filed a defence and a cross-claim to the bank's claim. In June 1992 Master Greenwood struck out the defence and cross-claim. No appeal has ever been brought against Master Greenwood's decision.

Pursuant to leave which Master Greenwood granted, an amended defence and cross claim were then filed by Mr and Mrs Capaan. However, on 28 August 1992 this document was also struck out by order of Master Greenwood. Master Greenwood referred the proceedings to Prothonotary Whalan. He gave leave to the bank to apply to Prothonotary Whalan for summary judgment against Mr and Mrs Capaan. No appeal was brought by Mr and Mrs Capaan against these orders made by Master Greenwood.