Kirkpatrick v Kotis [2004] NSWSC 1248

New South Wales Supreme Court

CITATION : Kirkpatrick v Kotis [2004] NSWSC 1248 HEARING DATE(S) : 18/11/04 - 22/11/04 JUDGMENT DATE : 18 November 2004 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Evidence not admitted

CATCHWORDS : PROCEDURE - contempt, attachment and sequestration - charge alleging contempt by breaching court orders on two particular days - evidence tendered of conduct on subsequent days - whether admissible at hearing to decide whether contempt had occurred LEGISLATION CITED : Evidence Act 1995 Coward v Stapleton (1953) 90 CLR 573 CASES CITED : Turner v Oates Properties Pty Ltd [2004] NSWSC 732 Tynan v Meharg [1999] NSWCA 27; [1999] NSWCA 157 Witham v Holloway (1995) 183 CLR 525 PARTIES : Benjamin David Kirkpatrick - Plaintiff Michael Kotis - Defendant FILE NUMBER(S) : SC 4369/04 COUNSEL : CJ Bevan - Plaintiff TS Hale SC; S Docker - Defendant SOLICITORS : John Carmody & Co - Plaintiff Bartier Perry - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

THURSDAY 18 NOVEMBER 2004

4369/04 BENJAMIN DAVID KIRKPATRICK v MICHAEL KOTIS JUDGMENT – Ex Tempore (Re admissability of Paragraph 3 of Affidavit of Banjamin David Kirkpatrick of 13 September 2004) 1 HIS HONOUR: This is the hearing of a charge of contempt of Court. It relates to certain alleged breaches of orders which the Court made on 27 August 2004. The statement of charge which has been served after formal preliminaries, alleges breaches of orders in the following terms: "1. On 27 August 2004 the Honourable Justice Campbell of this Court made orders in the nature of injunctions which were entered on that date, a true copy of which is annexed hereto and marked 'A' (' the Court's orders' ). 2. A sealed copy of the Court's orders was personally served on you on 2 September, 2004 at 239 Marrickville Road, Marrickville. 3. On 9 and 10 September 2004 you, by yourself, your servants and agents, undertook excavation works on the Defendant's land (within the meaning of the Court's orders) adjoining, or in the immediate vicinity of, the cabana constructed on the Plaintiff's land (within the meaning of the Court's orders), by any excavation means, without having first: (a) Caused the footing of the southern wall of the brick cabana constructed on the plaintiff's land, which is not bearing on rock to be underpinned, and has done so by taking all such steps as are specified for such underpinning either in par 5.3 of the expert report of Mr D R McMillan, structural engineer, which is annexed to his affidavit sworn 4 August 2004, the supplementary expert report of Mr D R McMillan, structural engineer, dated 17 August 2004 which is annexed to his affidavit sworn 19 August 2004 and the structural engineering drawing of Mr D R McMillan described as 'Cardno MBK Preliminary Drawings 605071-D-101A, 102A and 103A' which comprise Appendix A to that supplementary report of Mr McMillan; (b) Served on the plaintiff and Mr D R McMillan a certificate by a qualified structural engineer certifying that the underpinning work undertaken on the footing for the southern wall of the brick cabana on the plaintiff's land complies in all respects with the terms of par (a) above. PARTICULARS (i) Paragraphs 1 and 2 of the Court's orders. (ii) See the report of Mr D R McMillan, structural engineer, dated 9 September 2004 which is annexure 'A' to the affidavit of D R McMillan sworn 9 September 2004 (which accompanies this statement of charge), pages 3-4, answer to Question 4, which particularises the failure to comply with paragraphs 1 and 2 of the Court's orders. (iii) No certificate which complies with par 3(b) above was served on the plaintiff before such excavation works were undertaken."