McDonnell v Novello [2006] NSWSC 1186

New South Wales Supreme Court

CITATION : McDonnell v Novello [2006] NSWSC 1186

HEARING DATE(S) : 08/11/06

JUDGMENT DATE : 14 November 2006

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : Notice of motion for contempt dismissed with costs

CATCHWORDS : PROCEDURE - contempt of court - orders made in absence of party - not shown that orders served on or otherwise brought to party's attention before events said to constitute contempt - statement of charge not framed with particularity - various procedural defects

LEGISLATION CITED : Supreme Court Rules 1970, Part 55 rules 7, 9 Uniform Civil Procedure Rules 2005, rules 1.7, 10.21, 40.7, Schedule 2

Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2001] FCA 1758 CASES CITED : Harmsworth v Harmsworth [1987] 1 WLR 1676 Pearson v The Arcadia Stores, Guyra Ltd (No 2) (1935) 53 CLR 587

Philip Ray McDonnell - First Plaintiff PARTIES : Jennifer Mary McDonnell - Second Plaintiff Ivor Novello - Defendant

FILE NUMBER(S) : SC 6159/05

COUNSEL : Mr P.P. O'Loughlin - Plaintiffs Ms J.E. Richards - Defendant

SOLICITORS : Malcolm McDonald & Co - Plaintiffs Antunes - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

TUESDAY, 14 NOVEMBER 2006

6159/05 PHILIP RAY McDONNELL & ANOR v IVOR NOVELLO JUDGMENT 1 In these proceedings, the plaintiffs claim an entitlement to an equitable interest in the defendant's property at Londonderry by reason of expenditure made by the plaintiffs in effecting or causing to be effected improvements to the property. The summons was filed on 6 December 2005. There is a family relationship between the plaintiffs and the defendant. 2 On 8 November 2006, I heard an application by the defendant, by notice of motion filed on 29 September 2006, for: · "Declarations that each of the Plaintiffs is in contempt of orders 1 and 2 of the orders made by Gzell J on 25 September 2006." · "Orders that each of the Plaintiffs be dealt with by the Court for contempt." 3 The orders made by Gzell J on 25 September 2006 are as follows: "1. Philip Ray McDonnell and Jennifer Mary McDonnell or any person, agent, or corporation acting under their authority or on their behalf be restrained from entering the property situated at 286 Nutt Rd, Londonderry in the state of New South Wales (the Property) for the purpose of making any improvements, renovations or additions to the buildings and improvements situated on the Property, until further order. 2. Philip Ray McDonnell and Jennifer Mary McDonnell or any person, agent, or corporation acting under their authority or on their behalf be restrained from undertaking any improvements, renovations or additions to the buildings and improvements situated on the land known as 286 Nutt Rd, Londonderry in the state of New South Wales, until further order. 3. Order that the plaintiffs pay the defendant's costs of this motion." 4 Application for those three orders was made by the defendant's notice of motion filed in the registry on 18 September 2006 together with a supporting affidavit of the defendant's solicitor. Upon being filed, the notice of motion was given a return date of 26 October 2006. The notice of motion was duly served on the plaintiffs' solicitors. The defendant took the view that matters could not be left to await the allocated return date of 26 October 2006. The defendant's solicitor therefore wrote to the plaintiffs' solicitor seeking undertakings from the plaintiffs in terms of the orders in the notice of motion on the footing that such undertakings should continue until the allocated return date. The letter indicated that if the undertakings were not given by a specified time, the defendant would approach the court. These undertakings were not forthcoming and the defendant approached the Duty Judge (Gzell J) ex parte on 25 September 2006. There was no notice to the plaintiffs of the precise date and time at which the approach was to be made. When the matter came before Gzell J, he directed that the plaintiffs be called outside court. There was no attendance by or appearance for them. 5 The transcript of what then transpired is brief and may be quoted in full: "TZANNES: It's an application for urgent injunctions, restraining orders. You will find the application in the court file, which was filed on 18 September 2006, which has been served with a return date of 27 October 2006. I understand there is also an affidavit in support sworn 18 September 2006 -- HIS HONOUR: Has this matter been before the Registrar? TZANNES: No, it hasn't. Your Honour will see they are applications for restraining orders against the plaintiffs in the substantive application, a declaration of constructive trust against my clients' property in relation to alleged works done on the property, incomplete works, with the primary history being what is the value of the works and whether they did value the land. HIS HONOUR: Has the notice of motion been served on the other side? TZANNES: It has. HIS HONOUR: And is that sworn to in this affidavit? TZANNES: Not in this affidavit. The affidavit of 25 September by Simmone Corbett is here and I seek leave to file that (handed up). HIS HONOUR: I give leave to file in court an affidavit of Simmone Corbett sworn on 25 September 2006. Are the plaintiffs in occupation of the premises? TZANNES: In a way they are. There was the residence being operated at the premises. The residence has been vacated. They are attending every day, at least the male plaintiff is. HIS HONOUR: I make orders in terms of paragraphs 1, 2 and 4 of the notice of motion." 6 The situation can thus be seen to be one in which interlocutory restraining orders sought by a notice of motion which, as served, contained a return date a little over a month away were made ("until further order" and without the proffering of any undertaking as to damages) against parties who were absent and had been given no notice of the hearing at which the orders were made. The costs order made against the plaintiffs in these circumstances became the subject of an application for discharge heard by me at the same time as the contempt motion. By consent, it was ordered that that costs order be discharged and that the costs in question be reserved. 7 I return to the notice of motion by which the defendant applies for orders regarding alleged contempt of court by the plaintiffs. The notice of motion was, as I have said, filed on 29 September 2006. Leave to file the notice of motion and supporting affidavit was granted by Gzell J who was again sitting as Duty Judge on that day. His Honour also made orders as follows: 1. "I abridge the time for service of the notice of motion, the affidavit and these orders to 5 pm on Friday 29 September 2006". 3. "I order that service upon the plaintiffs may be effected by facsimile transmission addressed to Malcolm McDonald & Co, the solicitors for the plaintiff, at number 4721 1031". 3. "I stand the notice of motion over before the Duty Judge at 10am on Tuesday 3 October 2006". 8 When the notice of motion came before the Duty Judge on 3 October 2006 it was, by consent, further stood over. 9 The defendant filed a statement of charge at a later time. It is dated 5 October 2006 and was filed in court on that day when the proceedings again came before Gzell J. On that occasion, his Honour also made directions on matters of no relevance to the matter with which I am now concerned. 10 The charge of contempt, as stated in the statement of charge, is as follows: "1. On 25 September 2006, Orders were made by his Honour Mr Justice Gzell in this Honourable Court. 2. Those Orders were notified to the Plaintiffs' solicitors Malcolm McDonald & Co by facsimile of 25 September 2006 at 12.56pm. 3. From 25 September 2006 to 27 September 2006, the Plaintiffs by their servants and agents in breach of the Orders of his Honour Mr Justice Gzell of 25 September 2006, entered into the Defendant's property for the purpose of undertaking work and did undertake that work. PARTICULARS Impeccable constructions [sic] undertook cladding work on the Plaintiffs [sic] house on the Defendant's property. 4. In the knowledge of the Court's orders, the Plaintiffs committed a breach of such Orders. 5. The Plaintiffs are in continuous Contempt of the Court's orders." 11 The plaintiffs contend that significant defects attend the defendant's attempt to bring the charge of contempt before the court and that the defects are such that the attempt is doomed to fail, with the result that the notice of motion should be dismissed with costs. Having taken that stance, the plaintiffs did not seek to lead any evidence upon the application and were content to refer to the evidence tendered by the defendant, together with the court record and transcript. 12 The plaintiffs say, in the first place, that the defendant did not comply with Part 55 rule 7 of the Supreme Court Rules 1970 (which, by virtue of rule 1.7 and Schedule 2 of the Uniform Civil Procedure Rules 2005, prevails notwithstanding any inconsistency with the Uniform Civil Procedure Rules). Part 55 rule 7 is as follows: