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." His Honour then reserved liberty to the opponents to restore the matter to the list on two day's notice. In due course further proceedings were taken and there was judgment for possession granted on 23rd July 1993 and on 28th August 1993 a contract of sale was entered into by the claimant, Mr Mosca, as attorney for Mr Sengos. That was a sale to people named Falls. It will be seen that the contract of sale was entered into over two months after the giving of the undertaking. In the meantime Mr Sengos had placed the property in the hands of two agents - Elders Real Estate of Camden and JA 2 UNREPORTED JUDGMENTS Gilmore Real Estate of Liverpool. He did this on the 8th June, that is six days after giving the undertaking. The agreement which he entered into with the agents has been tendered in evidence and demonstrates that he was granting them authority to sell the property. The opponents, in June 1994, filed a notice of motion that Mr Sengos Mr Mosca and Mr John Burn, a Barrister, be committed for contempt of court. Mr Burn moved the court for an order that the proceedings be dismissed against him. That application came before a court constituted by Kirby P, Mahoney JA and Priestley JA on 4th July and an order was made that his name be removed from the proceedings upon the basis that there was no possible ground for the making of an order against him. The broad outline of the case is contained in the judgment then given by Kirby P. I must say at the outset that of the four charges brought against Mr Sengos and the six charges brought against Mr Mosca, the only ones that bear in any sensible way on the law of contempt are the charges which recite that the entry into the agency agreement on 8th June was a breach of the undertaking given to the court on 2nd June. The others, which assert many and varied contentions, primarily contend that each of the claimants have sworn affidavits containing falsehoods. In one case it is said that the summons for possession of the property was brought by Mr Sengos deceitfully and, therefore, he is guilty of contempt of court. I do not find it necessary, in the circumstances, to deal separately with each of the matters. Apart from the matter dealing with the undertaking in my opinion there is no possible substance to be found for the charges of contempt apart from the one exception to which I refer. Mr Collier has not appeared in court although an affidavit sworn by him has been filed in which it is said that he is authorising his wife to appear for him as he cannot attend. He is apparently involved in a training program which requires his full time attendance and he has, therefore, left the carriage of the case in his wife's hands. Mrs Collier sought at the outset liberty to appear on behalf of her husband as well as herself and, while the court reserved consideration of that application, it seems to me, as we have heard her submissions at length, we should grant her that leave and treat her submissions as being advanced on behalf of herself and her husband. As I have said I see no occasion to deal with all the separate allegations of falsehood although I should emphasise that, so far as I am concerned, there is no persuasive evidence of falsehood given against either Mr Sengos of Mr Mosca, who is a solicitor of this Court, and that there is no basis for any stain against their characters. If I turn now to the one matter which does enter the realm of law of contempt and that is the question of an alleged breach of undertaking, I observe that the undertaking that was given was an undertaking not to enter into any contract to sell the property. Even if one did not have regard to the earlier statement in the reasons for judgment it would be clear to my mind that the conduct in which Mr Sengos had undertaken not to participate was entering into a contract of sale of the property. Nothing in the undertaking prevented him, or contains a suggestion that he was prevented, from entering into an agreement with an agent to endeavour to sell the property at the expiry of the six week period. That, after all, is all he did. He entered into an agency agreement whereby the agent was to URJ COLLIER and ANOR v SENGOS and ANOR (Powell JA) 3 submit the property to public auction initially on 17th July and later on 25th July. In the event the auction took place much later. The point is there was no conduct on Mr Sengos' part which constituted in any way a breach of an undertaking not to enter into a contract to sell the property. The point becomes even clearer if one has regard to what his Honour earlier said. In particular when he said he could not see any basis to restrain Mr Sengos from advertising the sale of the property. Clearly the way was always left open for Mr Sengos to proceed except insofar as he undertook not to enter into a contract of sale prior to the expiry of six weeks. He did not enter into a contract of sale prior to that time and could not be found guilty of contempt. The other charges which, to a degree, hinge on that conclusion must also be dismissed and the balance of the charges which have no real relevance in the law of contempt. Meagher JA I entirely agree with what Clarke JA says. I should only add this.It is a tribute to the patience of the court that we endured for three hours an argument from Mrs Collier that should have taken about ten minutes if, which I dispute, it should have been pursued at all. Powell JA When he delivered judgment in the matter against Mr Burn on 4th July, Kirby P described the application brought by the opponents against Mr Burn as ill-founded and totally misconceived. I regret to say that the same observation applies with equal force to the present applications, and, for that reason, I would join in the orders proposed by Clarke JA. In my opinion the notices of motion presently before the court should be granted and the motion for contempt brought by Mr and Mrs Collier should be struck out and they should be ordered to pay the costs of each of the present applicants. Representation: Counsel for the claimant: MRS M COLLIER APPEARED IN PERSON Solicitors for the claimant: MRS M COLLIER Counsel for the opponent (MR P SENGOS): GL TURNER Solicitors for the opponent (MR P SENGOS): HOLMES AND BEVAN Counsel for the opponent (MR D MOSCA): R K K GOWENLOCK Solicitors for the opponent (MR D MOSCA): D MOSCA