Ark Hire Pty Ltd v Barwick Event Hire Pty Ltd & 5 Ors [2007] NSWSC 488

New South Wales Supreme Court

CITATION : Ark Hire Pty Ltd v Barwick Event Hire Pty Ltd & 5 Ors [2007] NSWSC 488

HEARING DATE(S) : 01/05/07, 02/05/07

JUDGMENT DATE : 16 May 2007

JURISDICTION : Equity Division

JUDGMENT OF : White J

DECISION : See paragraph 50 of judgment.

CATCHWORDS : PROCEDURE – Contempt – Power of court to punish for contempt – Where breach of undertaking to the court wilful only in the sense that contemnors conscious of non-compliance with undertaking to the court – Where contemnors intended to comply with undertaking but were unable to do so – Contempt committed without intent to defy the authority of the Court – Held that contempts not of a kind punishable by a fine. - PROCEDURE – Costs – Order for costs on indemnity basis including costs "incidental to" notice of motion – Order that costs be payable forthwith.

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 CASES CITED : Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 McIntyre v Perkes (1988) 15 NSWLR 417 Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1

Ark Hire Pty Ltd (subject to deed of company arrangement) PARTIES : v Barwick Event Hire Pty Ltd & 5 Ors

FILE NUMBER(S) : SC 1756/07

COUNSEL : Plaintiff: R Beech-Jones SC 1st & 7th Defendants: C Bova

SOLICITORS : Plaintiff: Addisons Defendants: Adrian G Byrne & Co

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

WHITE J

Wednesday, 16 May 2007

1756/07 Ark Hire Pty Ltd (subject to deed of company arrangement) v Barwick Event Hire Pty Ltd & 5 Ors JUDGMENT 1 HIS HONOUR: This is an application that the first and seventh defendants be found guilty of contempt. In its notice of motion filed on 20 April 2007, the plaintiff seeks orders that it have leave to issue writs of sequestration in respect of the property of the first and seventh defendants, that they be fined, and that they pay the plaintiff's costs on an indemnity basis. 2 The notice of motion was initially returnable before Hammerschlag J as duty judge. His Honour noted that the first and seventh defendants through their counsel proffered an unreserved apology with respect to their failure to comply with orders of the Court, and admitted the charge of contempt in the statement of charge attached to the plaintiff's notice of motion of 20 April 2007. 3 The statement of charge alleges that the first and seventh defendants were each guilty of contempt in that they breached undertakings given to the Court to serve on the plaintiff a list of all equipment referred to in the summons (or in the case of the seventh defendant, the amended summons) that was in their possession on or before 5 April 2007, and failed to serve on or before 5 April 2007 an affidavit verifying such a list. The statement of charge alleges that their failure to do so was wilful. 4 The question before me is what punishment, if any, should be imposed on the first and seventh defendants in respect of the admitted contempt. The Proffering of Undertakings to the Court 5 The plaintiff is a company subject to a Deed of Company Arrangement. It appears to have been in the business of commercial hiring of equipment used in the staging of events, such as chairs, tables, and things used to assemble tents and marquees. 6 The plaintiff commenced proceedings on 8 March 2007. It claimed orders against the first defendant for the immediate delivery up of equipment listed on seven hire agreements or invoices. By way of example, one such agreement, or invoice, was for the hire of 2,845 white chairs, 229 rectangular tables of a certain size, 68 round tables of a certain size, 40 rectangular tables of a different size, 8 flagpoles, and 240 items simply described as "floor pro". 7 The plaintiff moved for an expedited hearing of the proceedings. It says that the deed administrator had entered into a contract to sell the relevant equipment and was required to deliver such equipment up to the purchaser on 8 May 2007. This was not disputed. 8 When the matter was before the Expedition Judge on 23 March 2007, the first defendant proffered an undertaking to the Court that: