Commonwealth Bank of Australia v Campbell [2025] VSC 175

1. In support of the Summons, the Plaintiff relies on the following affidavits of Xavier Brian Kerlin, a solicitor employed by HWL Ebsworth, the solicitors for the Plaintiff:

(a) the affidavit affirmed 7 August 2024 (First Kerlin Affidavit) in support of the Summons; and

(b) the further affidavit affirmed 5 February 2025 (Second Kerlin Affidavit) in support of the Summons.

1. In addition, the Plaintiff relies on the following affidavits of service:

(a) the affidavit of Ken Neale Fraser sworn 30 April 2024 (First Fraser Affidavit) as to personal service of the Judgment;

(b) the affidavit of Mr Fraser sworn 26 August 2024 as to personal service of the Summons and First Kerlin Affidavit on the Defendant on 24 August 2024;

(c) the affidavit of Grace Peacock affirmed 16 September 2024 as to service by express post sent 30 April 2024 of the Court's orders made 30 August 2024 (First Peacock Affidavit). Ms Peacock also deposes that she searched the Australia Post website on 4 September 2024 which showed that the express post envelope had been delivered on 3 September 2024;

(d) the affidavit of Mr Kerlin affirmed 22 October 2024 as to service by email on 23 September 2024 of the Court's orders made 20 September 2024; and

(e) the affidavit of Ms Peacock affirmed on 23 October 2024 as to service by post sent 23 September 2024 of the Court's orders made 20 September 2024.

1. I note, for completeness, that all of the orders made by me from and including the orders made on 20 September 2024 in respect of the Summons were sent by my Associate by email to the parties, including the Defendant, on or around the dates they were made.
2. The Plaintiff also relies on its written outline of submissions filed 25 October 2024 as well as the oral submissions of Mr Kerlin made at the hearing.
3. The Defendant has not filed any affidavits or submissions.

1. The below information is drawn from the affidavits relied on by the Plaintiff and the Court file.
2. On 11 September 2020, the parties entered into an agreement numbered AAU1555118. Under this agreement the Plaintiff was the lender and the Defendant was the borrower. The Plaintiff funded the purchase by the Defendant of two pieces of farming machinery: one 2020 CLAAS 360FC Profil serial number F7102064 and one 2020 CLAAS Disco 9200C Autowather serial number F6501651 (the Goods). The sum advanced by the Plaintiff was $165,515.
3. As at 30 January 2023, the Defendant was in default of the agreement in that he had failed to make payments thereunder.
4. On 1 February 2024, the Plaintiff commenced this proceeding against the Defendant seeking, amongst other orders, possession of the Goods. The Writ and Statement of Claim was personally served on the Defendant on 22 February 2024.
5. On 8 March 2024, upon application by the Plaintiff for judgment in default of appearance, the Court entered judgment for debt in the amount of $150,347.24 (including interest and costs) and delivery up of the Goods (the Judgment). The Judgment was personally served on the Defendant on 29 April 2024.
6. On 7 August 2024, the Plaintiff issued the Summons after the Defendant failed to comply with the Judgment. The Summons was originally listed for hearing on 16 August 2024 but was administratively adjourned to 30 August 2024 to allow time for service. On 24 August 2024, the Summons was personally served on the Defendant along with the affidavit in support of Xavier Brian Kerlin affirmed 7 August 2024.
7. The Defendant did not appear at the hearing on 30 August 2024 and I adjourned the hearing of the Summons to 2:30pm on 20 September 2024 in a courtroom at 210 William Street, Melbourne. The 'Other Matters' to my orders noted that if the Defendant did not appear at Court on that date, a warrant for his arrest would be issued. My orders also provided for a copy of the orders to be served on the Defendant by express post to his residential address. This was the address at which the Defendant had previously been personally served with the writ and statement of claim, the Judgment, and the Summons and First Kerlin Affidavit. The First Peacock Affidavit establishes that such service was effected.
8. The Defendant did not attend the court building on 20 September 2024. Instead, the Defendant contacted my Chambers by telephone approximately 20 minutes prior to the hearing to say that he had only read the letter from the Plaintiff regarding the scheduled hearing at 10:00pm the night before and wanted an adjournment. The Defendant was dialled into the hearing in the courtroom via telephone at 2:30pm.
9. At the hearing, the Defendant stated that he was no longer in possession of the Goods and that he thought that they had already been repossessed by an agent of the Plaintiff. The solicitor for the Plaintiff stated that this did not accord with his instructions.
10. I adjourned the hearing of the Summons to 29 October 2024 and the Defendant was informed that if he failed to appear in person on that date, a warrant for his arrest would be issued. I also made orders for the parties to file and serve any affidavits or outlines of submissions they wished to rely on at the hearing.
11. At the hearing on 29 October 2024, the Court was informed by the solicitor for the Plaintiff that the parties had reached an in-principle agreement for the resolution of the dispute (Settlement Agreement), including for the Defendant to repay the Plaintiff by way of instalments. At that time, the parties contemplated that the first instalment would fall due on 15 November 2024 and proposed that the hearing of the Summons be adjourned until after that date. The Defendant did not appear on that date.
12. Given that the parties had reached an in-principle agreement, I made orders adjourning the hearing of the Summons to 21 November 2024 and stated in 'Other Matters' that:

(a) the Defendant must appear in person unless consent orders adjourning the matter were signed by the parties beforehand and provided to the Court for consideration and the parties have been excused from appearing; and

(b) if the Defendant had not been excused from appearing and failed to appear in person, the Court may issue a warrant for his arrest.

1. By email dated 20 November 2024, the solicitor for the Plaintiff requested that the hearing listed for the next day be adjourned for the Defendant to make the further payment required by the Settlement Agreement. In those circumstances, I considered it appropriate to adjourn the hearing to 7 February 2025 and made orders to that effect.
2. At the hearing on 7 February 2025, the Plaintiff informed the Court that the Defendant had made a part-payment of $10,000 pursuant to the Settlement Agreement, but had subsequently failed to comply with the terms of the agreement by making the other payment required. The Defendant appeared at the hearing and told the Court that he was unable to pay the outstanding amount because he had been unable to sell a tractor.
3. I made orders that day fixing the hearing of the Summons for 1 April 2025. I also made orders providing new deadlines for the parties to file and serve any affidavits or outlines of submissions they wished to rely on at the hearing.
4. At 7:44am on 1 April 2025, my Chambers was copied in to an email from the Defendant to the solicitors for the Plaintiff that said the following:

Good morning Mr Kerlin as we discussed yesterday i have found who has the claas mower conditioners yesterday and when I spoke to him he has indicated that he is prepared to purchase the mowers for $176000 inc Gst his name is [name and mobile telephone number][1] and has said he is happy for you to contact him to verify this. I would ask weather [sic] the bank would give him till the end of the month to settle an them directly to the bank i can organise for them to be delivered to the delivery adress [sic] you have provided by Friday afternoon so that the bank already has them until he settles the payment.

1. At 10:00am that same day, I heard the Summons and found the contempt proven.

1. The Plaintiff submits that it has complied with all of the requirements of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) as regards the form of the Judgment and the service requirements entitling this Court to make the orders sought in the Summons. Meanwhile, the Defendant has not filed any evidence in opposition to the Summons. The Plaintiff submits that, accordingly, the Defendant has not provided any reason for his failure to comply with the requirements of the Judgment, let alone one which this Court may consider reasonable.
2. The Plaintiff submits that the relevant authority for matters such as this is the decision of Emerton J (as her Honour then was) in Legal Services Board v Forster[2] (Forster). The Plaintiffs rely on the following extracts of her Honour's decision:

(43) It is established law that an intentional failure to comply with a judgment or order of a court requiring a person to abstain from doing something constitutes a contempt of court.[3] Furthermore, it is a contempt of court where a person's intentional conduct has a tendency to interfere with the course of justice.[4]

(46) In Witham v Holloway,[5] the High Court concluded that as all proceedings for contempt, whether for civil or criminal contempt, must realistically be seen as criminal in nature, all charges of contempt must be proved beyond reasonable doubt.

(47) In this case, the Order was made to secure the proper administration of justice. Although it was made at the behest of a party, and was directed to protecting that party's counsel from entirely inappropriate communications from Mr Forster, it had the purpose of preventing interference in the court's processes and promoting the administration of justice. There was a strong public interest reason for the making of the Order. In my view, therefore, the present application concerns not so much the enforcement of individual rights or benefits, but the preservation of the integrity of the judicial process and the due administration of justice.

(49) In National Australia Bank Ltd v Juric[6] and in Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd,[7] Gillard J identified the following elements which need to be proven in Victoria to establish a civil contempt:

(a) an order was made by the court;

(b) the terms of the order are clear, unambiguous and capable of compliance;

(c) the order was served on the alleged contemnor (or service was excused or dispensed with pursuant to the Rules of Court);

(d) the alleged contemnor has knowledge of the terms of the order; and

(e) the alleged contemnor has breached the terms of the order.

(54) As Dodds-Streeton J pointed out in Scott v Evia Pty Ltd,[8] it is not necessary for the purposes of civil contempt to establish that Mr Forster actually intended to disobey the Order. All that needs to be demonstrated is that he intentionally engaged in the conduct complained of, and that the conduct had the effect of contravening the Order.[9]

1. The Plaintiff submits that the Court can therefore be satisfied that the Defendant has deliberately and intentionally failed to comply with the Judgment.

1. In short, the Judgment required the Defendant to:

(a) within 14 days after service of the order deliver the Goods to the Plaintiff, with the address to which they were to be delivered stated in the Judgment;

(b) pay the Plaintiff the sum of $143,404.98 together with interest of $1,204.56; and

(c) pay the Plaintiff's costs of $5,737.70.

1. The First Fraser Affidavit deposes that the Judgment, annexed to a covering letter of demand dated 27 March 2024, was personally served on the Defendant on 29 April 2024 at 5:40pm. I am satisfied that the Judgment complies with rule 59.03 of the Rules, which provides that a judgment or order requiring a person to do an act shall provide, unless the Court otherwise orders, that the act be done within 14 days after service of a copy of the judgment or order on the person.
2. The notice contained in the Judgment (Penal Notice) stated the following:

Take notice that if you, ALEXANDER ROBERT CAMPBELL, refuse or neglect to deliver to the Plaintiff the Goods referred to in paragraph 1 of this Judgment within the time specified therein, you will be liable to imprisonment or sequestration of your property.

1. As such, I am also satisfied that the Plaintiff has complied with:

(a) rule 66.10(1), which provides that a judgment shall not be enforced by committal or sequestration unless a copy of the judgment is served personally on the person bound and, if the judgment requires the person bound to do an act within a fixed time, the copy of the judgment is so served a reasonable time before that time expires; and

(b) rule 66.10(3)(a), which provides that a copy of a judgment served under this Rule shall be indorsed with a notice, naming the person served, that the person served is liable to imprisonment or to sequestration of property if, where the judgment requires the person bound to do an act within a fixed time, the person bound refuses or neglects to do the act within that time.

1. Thus, the formal requirements for the form of the judgment which is the subject of enforcement action and for its service have been met.
2. At the hearing on 20 September 2024, the Defendant said that he was no longer in possession of the Goods and that he thought that they had already been repossessed by the Plaintiff. The Plaintiff's solicitor stated at the hearing that a repossession agent was dispatched before this proceeding was commenced, but was unable to locate the Goods. The Defendant told the Court that he had been unable to work for 16 to 18 weeks following his involvement in a major car accident in February 2024 and that during this time, the Goods 'disappeared' from the premises at which they were kept. However, no affidavit evidence or submissions were put on to support these claims.
3. I adjourned that hearing and gave the Defendant an opportunity to file any affidavit materials and submissions he sought to rely on by 18 and 25 October 2024 respectively. I indicated to the Defendant that in adjourning the hearing to 29 October 2024, I was ensuring that there was sufficient time for him to obtain legal advice and/or representation, which I urged him to do, and for him to file his material. I explained that the consequences of a contempt of court were potentially very serious and that one of the outcomes available to the Court was an order for his imprisonment. No material was filed by the Defendant.
4. The Second Kerlin Affidavit describes how, on 29 October 2024, the parties reached an agreement on the following terms:

(a) the Defendant would pay to the Plaintiff $10,000 by 15 November 2024 (First Payment); and

(b) the Defendant would make a final payment to the Plaintiff of $140,000 by 31 January upon the sale of 'the tractor' (Final Payment).

1. It should be noted here that the settlement offer was made by the Defendant in a phone call with the Plaintiff's solicitors on the morning of 28 October 2024 - the day before the hearing - and then emailed to the Plaintiff at 3:50am the following morning.
2. On 1 November 2024, the solicitors for the Plaintiff sent a letter to the Defendant setting out the terms of the Settlement Agreement and confirming that the Defendant's offer was acceptable to the Plaintiff so long as the Defendant:

(a) signed an acknowledgement of his commitment to the Settlement Agreement; and

(b) provided the Plaintiff with details of the tractor to be sold; such as the make, the model, the year of manufacture and proof of ownership.

1. The letter asked that the Defendant comply with these conditions by no later than 4:00pm on Friday, 8 November 2024, and that failure to do so or to make the payments may result in the Plaintiff proceeding with the matters set out in the Summons. The Plaintiff did not receive a response from the Defendant.
2. The Defendant made the First Payment in mid-November 2024. However, the Plaintiff never received the Final Payment. Correspondence from the Plaintiff to the Defendant in relation to the Final Payment - first on 15 January 2025 and again on 4 February 2025 - went unanswered by the Defendant. Instead, at the hearing on 7 February 2025, the Defendant told the Court that he had been unable to sell the tractor.
3. At the hearing on 7 February 2024, I made comments to the Defendant similar to those I had made on 20 September 2024. Again, I urged the Defendant to obtain legal advice and afforded him time to file any affidavit materials and submissions he wished to rely on at the hearing of the Summons, which I said would be adjourned to 1 April 2025. I indicated that the hearing would proceed on that date and that it was imperative that the Defendant ensure he filed any materials he wished to rely upon. The solicitors for the Plaintiff also emailed the Defendant - first on 26 February and again on 19 March - reminding him to file and serve any affidavits upon which he relies in opposition to the Summons. Again, he did not do so. Instead, he copied the Court in to an email to the Plaintiff mere hours before the hearing on 1 April 2025, informing the Plaintiff that he had 'found' the person who had the Goods and that this person was prepared to buy the Goods. No evidence has been adduced by the Defendant as to how this person was in possession of the Goods without the Defendant's knowledge or, apparently, his consent. The Plaintiff did not consent to the arrangement which was described in fairly loose terms in the Defendant's email (see paragraph 24 above).
4. I accept the Plaintiff's submission that emails such as the one described above form part of a pattern of behaviour on the part of the Defendant. The First and Second Kerlin Affidavits provide numerous examples of instances where the Defendant either ignored calls, voice messages, and emails from the Plaintiff, or waited until the last minute to respond. The Defendant's approach to this dispute has been to bury his head in the sand, only pulling it out at the last minute in an apparent attempt to buy himself time. As I stated at the hearing on 7 February 2025, that is an inadvisable way to go about dealing with the matter.
5. I have indicated to the Defendant on more than one occasion that he would be well advised to seek legal advice, especially given the severity of the consequences he might face should I find him in contempt, including the possibility of imprisonment. In addition, he has been provided with numerous opportunities to provide any affidavits upon which he wished to rely in response to the Summons. I am satisfied that he has been made aware of the potentially serious consequences of being found in contempt and that he has had sufficient opportunity to answer the Summons, but has not elected to do so in any meaningful or admissible way.
6. At the hearing on 1 April 2025, the Defendant said that he was not aware of the process to file materials with the Court. I do not accept this: there is information on the Court's website and he could have made enquiries with the Registry.
7. When I asked the Defendant what he wanted the Court to do, he said the following:

Well I was hoping that the [Plaintiff] would be able to um organise that or - or not organise but tell me how it is that they want that sale to happen so that the funds get to them the way that it should be and the loan can be settled out completed, was what I was hoping for yesterday afternoon.

1. I found this to be most unsatisfactory. The Judgment required the Defendant either to repay the Plaintiff or to deliver up the Goods. That has simply not been done. For the Defendant to appear at the hearing of the Summons asking, at the eleventh hour, for the Plaintiff to help facilitate a transaction for which no evidence was been put on is simply unsatisfactory. The Defendant says that he has not been able to deliver the Goods because he has not been in possession of them for over 18 months and did not, up until just recently, know where they were. Again, in the absence of any supporting affidavit material, these are little more than bare assertions.
2. On the evidence before the Court, I am satisfied that the Plaintiff has made out the elements of contempt as laid out in Forster, and that it has done so beyond reasonable doubt.
3. It is clear from the conduct of the Defendant that there has been an intentional failure to comply with the Judgment. The deadline for the Defendant's compliance with the demand in respect of the Judgment was 14 May 2024. Since that date, the Plaintiff has not received anything more than a part payment of $10,000.
4. Furthermore, the Defendant has repeatedly failed to engage with the solicitors for the Plaintiff, or appear in this Court when required by my orders. The Defendant has been given ample opportunities to seek legal advice, or to put on evidence and submissions in support of his claims that the Goods were stolen and/or recently found. He has not done so. His failure to engage with the Plaintiff, to obtain legal advice, or put on evidence does not mean that he is in contempt. The only aspect of his conduct that amounts to a contempt is his failure to comply with the Judgment. However, I mention it because it is relevant to note that there is no evidence before the Court contradicting the Plaintiff's evidence of the Defendant's failure to comply with the Judgment. All that I have is the Defendant's unsworn statements from the bar table as described above which, even if these had been made in the form of sworn oral or affidavit evidence, would not have been a satisfactory answer to the alleged contempt.
5. To secure the proper administration of justice, I consider it necessary to find the Defendant in contempt of court. The integrity of the judicial process is placed at risk if defendants are allowed to flagrantly disregard duly made court orders.
6. As early as 30 August 2024, I was of the opinion that, in the circumstances, it would be open to the Court to issue a warrant for the Defendant's arrest. At the time, he had been personally served with the material regarding the hearing, served with a copy of my orders adjourning the hearing to 2:30pm on 30 August 2024, and served with the Summons and supporting affidavit. Since the Summons was served on the Defendant in August 2024, this matter has been part-heard or adjourned five times; while two of those adjournments were made at the request of the Plaintiff due to the Settlement Agreement, the remainder were made so as to afford the Defendant every opportunity to defend the Summons.
7. I find that each of the elements in Juric and Advan is made out.

(a) First, an order was made by the Court in the form of the Judgment.

(b) Second, the terms of the Judgment are clear, unambiguous and capable of compliance, being those terms summarised at paragraph 26 above.

(c) Third, the Judgment was served on the Defendant, as evidenced by the First Fraser Affidavit. In addition, it contained the Penal Notice, such that the Defendant was on notice from the time the Judgment was served of the consequences of failing to comply with it.

(d) Fourth, the Defendant had knowledge of the terms of the Judgment, as evidenced by his demonstrated understanding that he was to repay the money owed to the Plaintiff or deliver up the Goods.

(e) Fifth, the Defendant has clearly breached the terms of the Judgment, as evidenced by his failure to pay the money still owing to the Plaintiff or to deliver up the Goods.

1. In Scott v Evia, Dodds-Streeton J stated the following:

The authorities therefore establish that it is generally unnecessary to prove that the contemnor committed the breach with an intention to disobey. If, however, the disobedience were "casual or accidental and unintentional" as distinct from "deliberate and voluntary", then although it would prima facie give rise to liability, the Court might nevertheless decline to exercise the contempt jurisdiction.

1. In this case, I do not consider the Defendant's breach to be casual or accidental. Instead, I consider his failure to comply with the orders of this Court to be clearly deliberate and voluntary. As such, I find that the contempt charge is proven, to the requisite standard. His failure to comply with the Judgment, and therefore his contempt, is continuing.

1. For the above reasons, at the conclusion of the hearing on 1 April 2025, I found the contempt proven and I adjourned the Summons to 10:30am on 30 April 2025 for a penalty hearing. I made timetabling orders for affidavits and submissions prior to that date.
2. When making those orders, I informed the Defendant as to what the penalty hearing was about and the range of penalties the Court may impose, that he would be well‑advised to seek legal advice, and that any steps he takes to remedy/address/purge the contempt would be highly relevant to the determination of a penalty.

[1] I have not included the name and mobile telephone number of the person named by the Defendant in his email, for privacy reasons.

[2] [2012] VSC 633

[3] Chan v Chen (No 2) [2007] VSC 24, [21]; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, [26].

[4] Principal Registrar, Supreme Court of New South Wales v Katelaris [2001] NSWSC 506, [14]-[20], [49], [62]‑[63]; Brown v Putnam (1975) 6 ALR 307; Re Goldman [1968] 3 NSWR 325, 327-329.

[5] (1995) 183 CLR 525.

[6] [2001] VSC 375, [37] (Juric).

[7] [2003] VSC 201, [31] (Advan).

[8] [2007] VSC 15 (Scott v Evia).