Contested Issues of Fact
85There were a number of contested issues of fact which need to be determined.
86These are issues where, speaking generally, the evidence given by Mr Salvato did not accord with other evidence in the proceedings or else is evidence which I am asked to reject, because it is unbelievable.
87Before turning to each of these relevant matters of fact, it is appropriate that I make some comments about Mr Salvato as a witness.
88He was a most unconvincing witness. He gave answers which were directly inconsistent with answers he had previously given on the same topic. He forced answers on the questioner, often before the questioner had completed the question. He made speeches in which he attempted to assert his case without listening to the question and providing an answer to the question sought. He was often rambling, combative and by his demeanour, unconvincing. When asked questions, the truthful answers to which he thought would not assist him, he adopted a strategy of challenging the questioner by asking a question, and making statements which did not answer the question asked. In those circumstances, it was plain that he was avoiding directly answering the question.
89He seemed to me to be simply incapable of telling the truth where he thought a truthful answer would not suit his case. I have concluded that I do not accept his evidence unless it is independently corroborated, or else is contrary to his interests.
90The first factual matter which needs to be determined arises because Mr Salvato asserted in his evidence that he and his wife had come to an agreement by which they had divided their matrimonial property, with him giving the whole of the house and its contents to his wife, and she relinquishing any interest in any of his businesses. The existence of the agreement was claimed by Mr Salvato to be an impediment upon his complying with the undertaking, and hence, the agreement was said to excuse any non-compliance.
91When giving evidence about the agreement, he said:
"Q. What about furniture?
A. Does it belong to me?
Q. Yes.
A. No, to my wife.
Q. Did you pay for any of it?
A. Yes, I paid for it.
Q. But you don't claim ownership?
A. No, because we came to an agreement that I take the clubs and she takes the house. I wouldn't take my furniture away from my kids.
Q. When did you come to that arrangement?
A. A while ago, about a year ago.
Q. You say a year before now you entered into a property agreement with your wife?
A. Yes.
Q. Is that recorded in writing?
A. No."
92Mrs Salvato was asked about the existence of such an agreement between her and her husband. She denied entering into any such agreement. She said that her discussions with her husband had "...not gone that far" and also that she would like to think that "...we would not have to have that conversation at this minute". She was then asked this question and gave this answer:
"Q. What I'm asking you is, had you entered into an agreement with your husband, the terms of which were that the house and all of the contents belonged to you, whereas his pub belongs to him?
A. No such agreement. We have never had such a serious conversation about dividing assets. We were hoping to work things out so we don't have to discuss assets."
93It was common ground on the evidence of Mr and Mrs Salvato that no proceedings had as yet been brought in either the Federal Magistrates Court, or else the Family Court of Australia by which any agreement of the kind asserted by Mr Salvato would be recognised by the Court. There was no evidence that proceedings for principal relief under the Family Law Act 1974 (Cth) had been commenced.
94At its heart, Mr Salvato asserted that many, many months before he moved out of the home, he had negotiated an agreement with his wife whereby she became entitled to the home and all of its contents, and he became solely entitled to the business or businesses which he ran. However, not only does his wife deny the existence of that agreement, but Mr Salvato's conduct is inconsistent with it.
95Mr Salvato does not suggest that he had separated from his wife at the time such agreement was negotiated. On the contrary, the time at which he asserts separation occurred was when he moved out in December 2012. Nor, at any time when proceedings were before this Court in 2012, when Mr Salvato sought orders staying the effect of the execution of the Writ of Possession, did he tell the Court that he had given up all interest in the property and had agreed to transfer it and all of its contents to his wife. As well, entering into a contract for the sale of the property, a contract about which his wife was entirely unaware, is wholly inconsistent with such an agreement.
96I have no reason to doubt the correctness of the evidence of Mrs Salvato on this issue. Mr Salvato's evidence about the agreement was unsatisfactory, lacked logic, was unsupported by any external conduct and was simply unbelievable.
97I reject Mr Salvato's evidence that he had entered into an agreement of the kind he described with his wife.
98The second factual matter of importance is whether Mr Salvato, had, as at 21 December 2012, a key or keys to the property in his possession, which he could have given to Mr Shacklady, thus complying with his undertaking.
99In his affidavit of 7 March 2013, Mr Salvato said, in paragraph 33:
"In relation to the keys, I gave them to my solicitor to give it to the plaintiff. I threw the key to Mr Shacklady and said 'give them the f**** keys."
100He was cross-examined upon this evidence. He said that the words recorded in his affidavit, were spoken by him at the time that he was "taking a key off my keyring ...".
101On a number of occasions in the course of his cross-examination, he asserted that he had given a key to Mr Shacklady on 21 December 2012, in similar circumstances to those described in his affidavit
102Mrs Salvato gave evidence about keys to the property. Her evidence was inconsistent with that of her husband.
103Her evidence was to the effect that her husband had never had a key to the property, and had used what she called the "spare key" to access the property at all times since they had moved there. The spare key was the description she gave to the key which was concealed in a hiding place on the property, but outside the house, which her children and her husband used to gain access to the property. Mr Salvato also gave evidence that he knew the location of this key, and he used it from time to time.
104She said that the reason that her husband had never really had a key to the property was that in the past when he had been given one, he would lose it and that is why Mrs Salvato had "a key located in a designated spot, for safety reasons". The clear sense of her evidence was that although Mr Salvato may have once had a key, or perhaps more than one key, once he had lost or misplaced the key or keys, they had not been replaced.
105Mr Salvato's evidence about his own conduct about getting access to the house in between when he left on 4 December 2012, and 21 December 2012, when he says he handed the key to Mr Shacklady, is inconsistent with his having a key to give to Mr Shacklady on 21 December 2012.
106His evidence makes it plain that he could and did gain access the house without having a key in his possession. He said that he could enter via the second storey. He said the bathroom door was always open. He said there were many ways in which he could get into the house. At one stage, in answer to his own lawyer, he said that he could easily access the house by climbing through the roof. All of this evidence suggests that he had no need to keep a key for any reason connected with getting access to the house, after he moved out.
107As well, neither Mr nor Mrs Salvato gave any evidence of taking any steps or making any arrangements at any time to ensure that Mr Salvato had a key in his possession for his use in the months leading up to his moving out, nor in the period after he moved out.
108I accept the evidence of Mrs Salvato, in preference to that of Mr Salvato, on this issue. The other facts to which I have referred, in particular, the way in which he was able to gain access to the Property, are sufficient to satisfy me that I should reject Mr Salvato's evidence that he had a key in his possession on 21 December 2012.
109Finally, an independent witness who could have corroborated his evidence, namely Mr Shacklady, who could have given evidence that Mr Salvato was in possession of a key on 21 December 2012, was not called to give evidence about that fact. The absence of evidence from this witness strengthens the conclusion to which I have independently come in the previous paragraph.
110Some further remarks need to be made about evidence from Mr Shacklady. Mr Shacklady at the relevant time was Mr Salvato's solicitor. At the time of the hearing of these contempt proceedings, Mr Shacklady remained in practice at Double Bay. Initially when the proceedings commenced, Mr Salvato's lawyer read an affidavit of Mr Shacklady. Mr Shacklady was required by the Bank to attend for cross-examination.
111On the morning of the second day of the hearing, I was informed from the bar table that Mr Shacklady had fallen over and injured himself, felt unwell and was unable to attend Court. After an adjournment was allowed to enable the question of Mr Shacklady's fitness to give evidence to be explored by Mr Salvato's lawyer, when the Court resumed, I was informed that Mr Shacklady would not be giving evidence and, upon Mr Salvato's instructions, his affidavit was withdrawn and not relied upon. No evidence was read, tendered or relied upon to indicate why this course was being adopted and whether Mr Shacklady was unable by reason of ill health, to be available for cross-examination. An adjournment was not sought to enable Mr Shacklady to be called as a witness after his health recovered. No application was made to take his evidence by telephone, or by audio-visual link. No application was made to rely upon his evidence, giving it such weight as may be appropriate in the absence of cross-examination.
112In those circumstances, I see no reason why an inference of the conventional kind adumbrated in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 ought not be drawn. Accordingly, I draw the inference that any evidence which Mr Shacklady may have given on this issue would not have assisted Mr Salvato's case.
113In all of those circumstances, as I have earlier indicated, I accept the evidence of Mrs Salvato, which sufficiently satisfies me that at no time on 21 December 2012, did Mr Salvato actually have a key to the house at Vaucluse in his possession.
114The third contested matter of fact is whether Mr Salvato handed over the key to the property at Vaucluse to Mr Shacklady in his office on the afternoon of 21 December 2012 with the instruction that Mr Shacklady ought deliver the key to the Bank.
115On many occasions throughout his evidence Mr Salvato asserted that he had handed over a single key to Mr Shacklady on 21 December 2012, and told him to give the key to the Bank or one of its representatives.
116Since I have decided that Mr Salvato did not have a key on 21 December 2012, then it follows that he could not have handed it over to Mr Shacklady on that day with instructions to give it to a representative of the Bank.
117Even if I were wrong in that factual conclusion, and Mr Salvato had in his possession a key to the property at that time, I would still not be persuaded that he had handed it over to Mr Shacklady. There are number of reasons for this.
118Firstly, I do not accept, unless it is corroborated, the evidence of Mr Salvato where it is in contest.
119Secondly, Mr Shacklady was not called to corroborate this evidence. For the reasons which I have just explained, his absence from the evidence in the trial enables an inference to be drawn that his evidence would not have assisted Mr Salvato's case.
120Thirdly, if Mr Shacklady had such a key, and had received instructions to hand it over to the Bank, at the time when Mr Salvato says this occurred, namely, after the settlement had failed to proceed on 21 December 2012, then I would have expected Mr Shacklady to have communicated that fact to the solicitors for the Bank, and to have asked for their client's direction as to where, or to whom, the key ought be delivered. There was no such correspondence whether by letter or email, nor any such conversation between Mr Shacklady and the solicitors for the Bank. The absence of any such mention in that correspondence is particularly surprising because the Bank's solicitors were insisting upon Mr Salvato strictly complying with his undertaking.
121In other words, it is Mr Salvato's case that notwithstanding that his solicitor Mr Shacklady was given express instructions to give the key to the Bank, in order to demonstrate, on Mr Salvato's account, that he had complied with the undertaking which he had given to the Court, for a reason which is wholly unexplained by the evidence, Mr Shacklady who, so it seems from the evidence before me, was otherwise entirely diligent in carrying out Mr Salvato's instructions, did not carry out this particular instruction.
122No plausible reason was advanced to explain why Mr Shacklady would not have obeyed his client's instructions. Such a proposition is even more difficult to accept if, as Mr Salvato asserted whilst giving evidence, that his assessment of Mr Shacklady's relationship with the solicitors for the Bank was he was "very chummy" with them, and that Mr Shacklady had "... given no resistance in this case".
123Accordingly, I conclude that Mr Salvato did not give any key to Mr Shacklady on 21 December 2012.
124The remaining factual question is a more complex one which deals with the issue of what Mr Salvato understood about the undertaking, and what, if anything, he did to comply with it, including whether he knew or understood that he was complying with it or else, not complying with it.
125It is necessary to approach this question having first discussed the principles of law relating to contempt of Court and ambiguity of undertakings.