Costello v Courtney [2000] QSC 67

[2] On 12 November 1999 the plaintiff filed a claim and statement of claim seeking specific performance of an agreement made on 27 August 1999 for the sale by the plaintiff to the defendant of certain land and the nursery and garden centre business conducted on it.

[3] On 16 November 1999 the claim and statement of claim were served personally on the defendant. The defendant did not file a notice of intention to defend or defence. On 23 December 1999 the plaintiff filed an application for judgment by default. That application was served on the defendant by post.

[4] The application for judgment came before Fryberg J on 10 January 2000. There was no appearance by the defendant. His Honour made the following orders:-

"1. IT IS THIS DAY ADJUDGED AND DECLARED that the contract of sale between the Plaintiff as vendor and the Defendant as purchaser and the Trade Dollar Agreement each made 27 August 1999 ought to be specifically performed and carried into execution.

2. IT IS THIS DAY ADJUDGED AND DECLARED that the Defendant in return for the documents referred to in paragraph 3 hereof do at 10:00 am on 31 January 2000 at the National Australia Bank, Adelaide Street, Brisbane in the State of Queensland pay to the solicitors for the Plaintiff the sum of $430,000.00 together with the sum of $220,000.00 by way of Trade Dollars being the balance purchase moneys due under the said contract adjusted as required by paragraph 4 hereof.

3. AND IT IS THIS DAY FURTHER ORDERED that the Plaintiff at the time and place referred to in paragraph 2 hereof deliver to the Defendant or his solicitor:

(a) any declarations or instruments required by the Office of State Revenue to be made by the Vendor to stamp the documents and instruments of transfer and any other dutiable instruments;

(b) releases of all Bills of Mortgage, Bills of Sale and any other encumbrances or charges over the Land, the Business, the Business Assets or the stock-in-trade;

(c) transfers of all Business Assets not otherwise referred to duly executed (where required by law) together with such instruments of title and other supporting documentation as may be necessary to effect registration in any competent authority;

(d) a duly executed assignment of the Business Name in favour of the Purchaser,

(e) any other documentation necessary to vest in the Purchaser unencumbered title to the Land and to the Business and the Business Assets (and stock-in-trade).

4. AND IT IS THIS DAY FURTHER ORDERED that the Defendant pay the Plaintiff interest pursuant to clause 30.1 of the said contract, at the rate of 10.67% per annum on the sum of $650,000.00 for the period from 1 November 1999 to 10 January 1999 (71 days) in the amount of $13,491.00.

5. AND IT IS THIS DAY FURTHER ORDERED that the Defendant pay the Plaintiff's costs of and incidental to this application and the action to be assessed."

[5] Stephen Richard Hoskins, a solicitor employed by the solicitors for the plaintiff, has sworn:

"On the 10th of January 2000 I caused a copy of the Minutes of Judgment, ordered by Justice Fryberg, along with a covering letter to be delivered to the Defendant at his home address at 37 Marjorie Street, Mooloolaba in the state of Queensland by prepaid post. Exhibited hereto and marked with the letter `A' is a true copy of the said letter and Minutes of Judgement sent to the Defendant."

We refer to the above matter and enclose by way of service copy of the Order made by Justice Fryberg of the Supreme Court on Monday, 10th of January 2000.

You will note that specific performance of the Contract was ordered and that the costs of our client's application was awarded against yourself. We are in the process of quantifying the costs and will advise of the amount in due course. You will note that the interest amounting to $13,491.00 has been awarded against you. We look forward to receiving a cheque in this amount by return.

The Court has ordered that settlement is to be effected at 10.00am on the 31st of January 2000 at the National Australia Bank, Adelaide Street, Brisbane. We will make the necessary arrangements for the settlement to take place at this time and date.

Our client has already forwarded to your Solicitors, Messrs Wight Shera & Associates executed Transfer documents.

If we can be of any further assistance please do not hesitate to contact us."

[6] The defendant failed to comply with the orders of Fryberg J on 31 January 2000 and has apparently made no attempt to do so since.

[7] The present application was filed on 16 February 2000. It came before the Court on 1 March 2000 when it was adjourned to a date to be fixed. It came before me on 22 March 2000 when Mr Hoskins, who appeared for the plaintiff, told me from the Bar table that it was adjourned because there was no proof of compliance with rule 926(3) of the Uniform Civil Procedure Rules, which requires personal service of the application and supporting affidavit material. That was remedied by the time the application came before me.

[8] Mr Hoskins informed me that the plaintiff is seeking an order having the effect of bringing the defendant before the Court to explain why he has not complied with the orders of Fryberg J.

[9] Disobedience of a Court order directing specific performance of a contract may amount to civil contempt. The Court approaches any contempt proceedings cautiously, and generally requires strict compliance with procedural rules.

[10] There are several reasons why I am not prepared to accede to the present application.

[11] The defendant was not served personally with a copy of Fryberg J's order contrary to rule 904(1) which provides:-

"Prerequisite to enforcement by contempt or seizing property

904 (1) Unless the court otherwise orders, a non-money order may be enforced by contempt proceedings or seizing a person's property only if -

(a) the person again whom the order is to be enforced is served personally with a copy of the order; and

(b) for an order requiring a person to perform an act within a time specified in the order, the order is served a reasonable time before the end of the time specified in the order."

[12] Even if service by post of a copy of the minutes of order and the accompanying letter could otherwise suffice as notice of the order within rule 904(2), they were not accompanied by a penal notice as required by rule 665(3):-

665 (3) An order requiring a person to perform an act must have written on it or attached to it the following statement or a statement to the same effect -

`If you, [state name of person required to perform act] do not obey this order within the time specified, you will be liable to court proceedings to compel you to obey it and punishment for contempt.'."

The Court's broad powers to make orders inconsistent with the procedural rules and or in the face of non-compliance with the rules (rules 367 and 371 read with rule 5) may allow it to hear a contempt application notwithstanding the absence of such a penal notice (Jolly v Hull English CA 21 January 2000; Davy International Ltd v Tazzyman [1997] EWCA Civ 1586; [1997] 1 WLR 1256). However, this is not an appropriate case in which to do so.

[13] There is nothing to indicate that the defendant was given notice that the application had been relisted for 22 March 2000. Because of the seriousness of contempt proceedings, the application and supporting affidavits must be served on the respondent personally (rule 926(3)). In Chiltern District Council v Keane [1985] 1WLR 619 the English Court of Appeal held that a similar provision in the English Rules applies equally to notification of a new hearing date where the application has previously been adjourned to a date to be fixed. I respectfully agree, and would apply the English approach to the Uniform Civil Procedure Rules.