COLLIER and ANOR v SENGOS and ANOR [1994] NSWCA 55

COLLIER and ANOR v SENGOS and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and POWELL JJA 18 July 1994, 18 July 1994 [1994] NSWCA 55

CONTEMPT OF COURT — GRANT OF INJUNCTION — NO CONDUCT AMOUNTING TO BREACH OF UNDERTAKING

Clarke JA There are before the court two notices of motion to strike out a single notice of motion directed against both present applicants that they be dealt with for contempt of court.

The history of the proceedings started with a mortgage between Mr and Mrs Collier, who are the opponents to the present motion, and Mr Sengos, who is one of the claimants. The other claimant is his solicitor, Mr Domenico Mosca.

Mr Sengos alleged originally that the opponents were in default under the mortgage and on 3rd May 1993 he filed, through his solicitor, a summons in the court seeking an order for possession of the mortgaged property.

On 9th May 1993 a fire damaged a house on the property the subject of the mortgage. The opponents then brought proceedings in the Equity Division seeking an order that Mr Sengos be restrained from exercising a power of sale over the house property.

In his judgment on the 2nd June 1993 Hodgson J explained he could see no ground upon which that relief could be granted. He observed then that the opponent sought additional relief, namely, an order preventing Mr Sengos advertising the property for sale. His Honour concluded there was no basis upon which he could grant an injunction to restrain the advertising of the property.

During the course of his articulating his reasons for judgment Mrs Collier, one of the opponents, renewed her application for an injunction against advertising and she indicated that if she was given some time she may be able to get evidence to support her case and thereby be able to furnish a legal basis for the grant of an injunction. His Honour, therefore, reserved to the parties liberty to restore the matter to the list. He considered that that was an adequate way of maintaining the opponents' position, provided that one further thing happened. In the event that did happen and that was Mr Sengos gave an undertaking which his Honour recorded in these terms: "I note that the defendant by his counsel undertakes to the court that he will not enter into any contract to sell the property 44 Lorena Avenue, Camden for the next six weeks."