Novelly v Tamqia Pty Ltd

The First Judgment

1. Peden J delivered the First Judgment on 24 November 2022 after a three day hearing conducted earlier that month. Her Honour dismissed Mr Novelly's claim for specific performance and ordered each party to pay their costs.
2. The relevant parts of the First Judgment are: "1. The plaintiff, Mr Jared Novelly, complains that his landlord, Tamqia Pty Ltd (Tamqia), has breached his residential lease (Lease) of premises located at 157 Liverpool Street ("The Hyde"), Sydney (Premises). The Lease's term of 3 years and 1 month commenced on 11 June 2021. 2. The leased Premises comprise a furnished three level penthouse, which Mr Novelly's senior counsel described as "prestige premises" and having "panoramic views". The three levels of the apartment are serviced by an internal lift, and there is an outdoor pool and entertaining area on the top level. Mr Novelly pays rent of $15,000 per week. He also has a right of first refusal, should Tamqia wish to sell "at any time", with conditions attached. 3. Mr Novelly had pleaded over 50 other "repair" issues that were abandoned at the commencement of the hearing or resolved by undertakings given by Tamqia during and after the hearing. He no longer sought, for example, an order that Tamqia "pressure clean whole of upstairs balcony to clear spiders, webs and other insects" and "garden tidy-up". 4. As senior counsel for Mr Novelly observed at the hearing, other allegations pleaded, including misleading or deceptive conduct and damages, may be agitated at another time. 5. Only the following must be determined by the Court: (1) whether Tamqia breached its obligation to enter into contracts for lift maintenance; (2) whether Tamqia breached its obligation to "check" all lights to make sure they were in working order within 45 days of commencement of the Lease; (3) whether Tamqia breached its obligation to keep in reasonable repair (found in clause 19.3 of the standard terms of residential lease): (a) some lights; (b) 2 burners on a barbeque; (c) a fridge/freezer; (d) the pool heater; (e) a retractable door; and (4) if any breaches are found, whether specific performance ought to be ordered, compelling Tamqia to comply with its promises. … Other matters resolved by undertakings 54 Many other matters were resolved by Tamqia providing undertakings to the Court in a form agreeable to Mr Novelly. I accept the following undertakings as disposing of the issues: The First Defendant (by itself it and its servants and agents) and the Second Defendant (by herself and her servants and agents) undertake to the Court that they will: 1. not park in any of the Plaintiff's leased car parking spaces on Level P3 of Strata Plan No 83861 at the property known as Apartment 3401, The Hyde, 157 Liverpool Street, Sydney NSW (the Premises) whilst the Plaintiff is the tenant of the Premises pursuant to the residential tenancy agreement dated 6 May 2021; 2. within 28 days, remove all items belonging to either of them from the storeroom, the pool plant and sub-plant rooms on Level 35 of the Premises (the Excluded Areas), with access for such purpose to be limited to 10 occasions; 3. within 28 days, approach the Owners Corporation for approval to supply and install a Toto Neorest XH II toilet in each of the master bedroom ensuite on Level 34 of the Premises and the shower / steam room adjacent to and behind the kitchen on Level 36 of the Premises and, if such approval is given, undertake and, once commenced, complete the approved work as soon as is reasonably practicable; and 4. within 28 days, provide to the Plaintiff (or his lawyers): a. a copy of each key or opening device which is in their possession for each of the doors referred to in each of prayer 9 and prayer 18AC of the Amended Statement of Claim, and b. for those keys or opening devices which they do not have, use all reasonable endeavours to cause the Owners Corporation or locksmith or other tradesman or technician to provide to the Plaintiff (or his lawyers) a key or opening device for each of the doors referred to in each of prayer 9 and prayer 18AC of the Amended Statement of Claim. This undertaking is subject to the Plaintiff (by himself and his servants and agents) undertaking to the Court to provide (during business hours and subject to the Plaintiff (or his lawyers) having been given 24 hours' written notice) to: 1. the First Defendant (by itself it and its servants and agents) and the Second Defendant (by herself and her servants and agents) such access to the Premises as they (or either of them) may reasonably require to remove any items belonging to either of them from the Excluded Area; and 2. the Owners Corporation (by itself it and its servants and agents) or any locksmith or other tradesman or technician retained by or behalf of the Defendants (or either of them) such access to the premises (including without limitation the car parking area forming part of the Premises) as may be required to obtain or make keys or opening devices for the doors referred to in each of prayer 9 and prayer 18AC of the Amended Statement of Claim. Costs 55 This matter was given a 4-day hearing. Mr Novelly's whole claim originally traversed 634 paragraphs of factual background in his affidavit. There were close to 3,000 pages in the court book. 56 At the conclusion of the hearing, all that I have been asked to resolve are trivial alleged breaches of the Lease. … 59 While some of the issues between the parties were resolved by undertakings, those undertakings were only proffered a few days before the hearing, during the hearing, and after the hearing when judgment was reserved. 60 I do not consider that the parties ought to have required the Court to determine the trivial matters that were finally pressed. The parties to civil proceedings have a duty to further the overriding purpose of civil litigation in s 56 of the Civil Procedure Act 2005 (NSW) and consider the proportionality of costs relative to the matters in dispute. Those considerations are relevant to the exercise of my costs discretion under s 56(5). Orders 61 In the circumstances the appropriate orders are: (1) The Plaintiff's claims for specific performance are dismissed. (2) Each party to pay their own costs."

The facts

1. The essential facts were not dispute. With certain important exceptions which I address by specific findings in what follows, they consisted of the fact of email exchanges between the solicitors or their respective employees, being Mr J de Mestre for the defendants and Mr M Fraser for Mr Novelly. Insofar as the solicitors' correspondence purported to make assertions of fact whether on instructions or otherwise, I have not treated those assertions as proving the truth of the assertions. However, I have taken into account the fact of the correspondence and the assertions made therein (rather than their truth) on the question of whether the defendants' conduct was contumelious. Mr Novelly and another of his witnesses, Mr Terence Wong (a law graduate who is a friend of Mr Novelly), were briefly cross-examined. Importantly, Mr Novelly was not cross-examined on the matters set out in [30] below. The other deponents in Mr Novelly's case, all of whose evidence I have taken into account, were not required for cross-examination.
2. At 5.09 pm and 5.11 pm on the last day of the hearing before Peden J (9 November 2022), her Honour's chambers received emails setting out and giving the undertakings which had been agreed between the parties and which are accepted and recorded in the First Judgment at [54] reproduced above.
3. After Peden J published the First Judgment on 24 November 2022, by which her Honour accepted the parties' undertakings, there is no evidence of communication between the parties until 7 December 2022. On that day, Mr de Mestre wrote to Mr Fraser by email: "We write to advise that unfortunately our client is unable to clear the storeroom until on or before 20 January 2023" That was the entire communication. No reason for the inability to clear the storeroom was proffered, no was there any request to vary the relevant undertaking or relist the matter.
4. On 12 December 2022, Mr Fraser wrote to Mr de Mestre, including: "We refer to the undertakings given to the Court by our respective clients via their respective counsel on 9 November 2022. A copy of the emails sent to her Honour on 9 November 2022 and by which the undertakings were respectively given are attached. Whilst her Honour, through the judgment, purported to accept the undertakings in the judgment given on 24 November 2022, the undertakings were given unequivocally on 9 November 2022 and the 28 day period for compliance commenced from 9 November 2022. The undertakings did not state that they were to be complied with 28 days after whenever judgment may be delivered. We calculate 7 December 2022 (being the 28th day after 9 November 2022) to be the last day for compliance by your clients with their respective obligations pursuant to the undertakings. Paragraph 2 of the undertakings required your clients to remove all goods from the storage room and the pool plant and sub-plant rooms on Level 35. … We note in relation to the undertaking referred to in paragraph 2 and that part of paragraph 4 for which access to the premises is required, that our client has not received notice from either of your clients nor from anyone claiming to represent or to be authorised by your clients, for access to the premises. It appears to us that your clients are unwilling to comply with those undertakings. So far as the store room, the pool plant and sub-plant rooms on level 35 are concerned, our client is not to be made an involuntary bailee of your client's goods. The failure of your client to have retrieved them from the storeroom after notice was given to do so earlier this year constituted a trespass and breach of the lease for which our client is entitled to damages - which continue to accrue. The failure to remove them since 9 November 2022 is contumacious. However, damages aside, without admission and without our client waiving his rights pursuant to the undertakings, we put your clients on notice that if the goods are not collected and if our client is not given vacant possession of those rooms by close of business on 22 December 2022, in respect of which time is of the essence, our client reserves the right to dispose of the goods within them without further notice. … In our view, your clients' failure to comply with the undertakings in paragraphs 2 and 4 of the undertakings given on 9 November 2022 does constitute contempt. Our client reserves his rights including the right to tender this letter on any question whatsoever. We look forward to your prompt response."
5. Contrary to the assertions made in the letter reproduced in the preceding paragraph and in further correspondence reproduced in what follows, the parties now accept that time for compliance with the undertakings ran from when they were accepted in the First Judgment on 24 November 2022 and not from when they were first emailed to the Court on 9 November 2022. The parties also accepted that this misapprehension was irrelevant for present purposes, because the date to which the letter purported to extend the deadline for compliance - 22 December 2022 - was 28 days after the delivery of First Judgment. It was therefore common ground before me that the undertakings were required to be complied with no later than 22 December 2022.
6. On 13 December 2022, an employee of Mr de Mestre emailed Mr Fraser: "We refer to our previous correspondence dated 7 December 2022. We are instructed to request an undertaking from your client not to remove or destroy our client's personal property that is contained within the store room, the pool plant and/or sub-plant rooms on level 35 until such time as the expiration of 20 January 2023. We request written confirmation on or before 5pm this Friday 16 December 2022."
7. On 16 December 2022, Mr Fraser replied to Mr de Mestre's firm by email: "Our client will not provide the undertaking requested in your email below. Any concern your clients may have about their goods being removed or destroyed can be overcome by your clients removing them by 22 December 2022 - your clients have given and breached their undertaking to the Court to remove them by 7 December 2022."
8. On 19 December 2022, Mr de Mestre emailed Mr Fraser: "Further to below, as you may be aware from the evidence in this matter, the majority of items in the storeroom are delicate (such as limited edition porcelain dolls) and or extremely valuable and or irreplaceable. Our client apologies but confirms she needs until 20 January 2023 to empty the storeroom. Can you advise if there is an urgent need for your client to use the storeroom before 20 January 2023? If so our client may be able to organise an intercom [scil. interim] arrangement for your client. If any damage is done to the items in the storeroom we have been instructed to issue proceedings."
9. On 20 December 2022, Mr Fraser emailed Mr de Mestre: "The evidence in this matter does not identify the contents of the storeroom, and nor does it disclose their nature, delicate or otherwise, and nor their value, and your clients have not otherwise provided an inventory of those contents or any particulars of them. Your clients gave an undertaking to clear the contents of the storeroom by 7 December 2022. Our client, without being obliged to do so, has allowed your clients a further period until the end of 22 December 2022 within which to do what they should have done by 7 December 2022. Our client is not willing to enter into any interim arrangement with your clients given their total disregard for any promise they give, whether to our client or to the Court. There is no reason why your clients can't make an interim arrangement which does not involve our client - in particular, there is no reason why your clients cannot (and nor why they haven't done so already) hired professionals to remove the contents of the storeroom to an interim location. Finally, and in the unlikely event that your clients were intending to endeavour to comply with their other undertakings in the period from 22 December 2022 to 31 January 2023, our client will have guests staying with him at the premises during that period, and he is not willing to allow your clients or their tradespersons to enter the premises and disrupt his and his guests' quiet enjoyment of the premises during that period. Our client reserves his right to take whatever action he deems appropriate to terminate your clients' continuing trespass and contumacious breaches of their undertakings to the Court."
10. Mr de Mestre sent this reply later that day: "Does below mean that your client does not wish our client to attend the premise from 22 December 2022 to 31 January 2023 to clear the storeroom? If so can I suggest our client makes arrangements on say Friday 3 February to attend and clear the storeroom."
11. There was no reply to Mr de Mestre's email reproduced in the preceding paragraph.
12. At 5:34pm on 22 December 2022 (which, as I have recorded, the parties now accept was the last day for compliance by the defendants with the undertakings), Mr Fraser wrote to Mr de Mestre, including: "We are instructed that your clients have not complied with the written undertaking in that: (a) they have not cleared the storerooms, pool plant and sub-plant rooms on level 35 required by paragraph 2 of the written undertaking; (b) they have not provided the keys required by paragraph 4 of the written undertaking; (c) they have not arranged for anyone else to provide keys required by paragraph 4 of the written undertaking. Further, neither we nor our client have received any notification that the garage panel door has been repaired. If it has been, would you please inform us of that fact and when that work was undertaken. Our client cannot ascertain this issue because the panel door is still locked by chains affixed by or on behalf of your clients or one of them. Our client has been afforded no explanation as to why your clients have not complied with the undertakings. An extension was sought, but again, no explanation was proffered. Whilst our client should not have to afford your clients any more time to comply with undertakings freely given, we are instructed that our client will enable access to the storage unit on level 35 on Monday 9 January 2023 for the day, commencing at 7:00 am until 7:00 pm so that the works required by the written undertakings in paragraphs 2, 3 and 4 may be attended to. This ls without prejudice to our client's rights to seek further relief including costs, in respect of the breaches of the lease and breaches of the undertakings, including any application for contempt. In that regard we note that the breaches have been and continue to be contumacious. We note that our client first demanded, in writing, the removal of all of your clients' goods from the storeroom on level 35 by letter dated 10 February 2022. If your clients do avail themselves of the offer made by this letter, that will have been almost 11 months since the request was first made. Please inform us by no later than 5 pm on 4 January 2023 as to whether or not your clients propose to avail themselves of this offer. Your clients should be aware that if any undertakings have not been complied with by 7:00 pm on 9 January 2023, our client has instructed us to commence proceedings for contempt. Should that become necessary, our client reserves the right to tender a copy of this letter on all questions. Costs of any such application will, of course, be sought on an indemnity basis and that they be payable forthwith."
13. Understandably given the time of year, there was no reply to Mr Fraser's letter reproduced in the previous paragraph until 3 January 2023, when Mr de Mestre replied: "Apologies for the delay in replying to your email below and the attachments. Our offices are closed until 9 January 2023. Our client is not able to clear the storeroom on Monday 9 January 2023. Our client suggests 20 January 2023 for the day, commencing at 7:00am until 7:00 pm."
14. Rather than replying to Mr de Mestre's email of 3 January 2023, the next step on behalf of Mr Novelly was the filing of the notice of motion for contempt on 13 January 2023. Despite attempts at personal service of the motion, Mr de Mestre did not become aware of the motion until he received an automatically generated email from the Court on 30 January 2023. The motion and affidavit in support were ultimately served attached to an email from Mr Fraser to Mr de Mestre on 2 February 2023.
15. Notwithstanding that the possibility of an action for contempt had been foreshadowed in Mr Fraser's letter of 22 December 2022 (see [26] above) three matters must be observed: 1. As I discuss further in [70] to [74] below, by this stage the defendants (or, failing them, Mr Novelly) should have relisted the proceedings before the Court so the non-compliance with the undertakings could be explained to the Court and leave to be released from and vary the undertakings sought on proper evidence; 2. As a corollary of the preceding sub-paragraph, the filing of a motion for contempt of an undertaking should be a last resort and not an early salvo. As a matter of practice, in my respectful view, a motion for contempt constituted by breach of an undertaking to the Court should not be filed before the issue of compliance with the undertaking has been the subject of a relisting and explanation to the Court by the party which has given the undertaking (including any attendant application by that party in relation to the undertaking); and 3. Quite apart from failing to relist the matter promptly, as a practical matter the filing and subsequent service of a motion for contempt could hardly be said to be a step calculated to assist in resolving what had already become a fraught situation between the parties, which included ill-advised allegations of contumacious conduct, or be consistent with the overriding purpose of the just, quick and cheap resolution of the dispute.
16. On 13 January 2023, Mr Novelly swore an affidavit in which he deposed to certain matters which are fundamental to proof of his contempt case. He was not cross-examined on those matters and the Court accepts his evidence as truthful and finds accordingly: "4 I did not receive a request at any time on or after 9 November 2022 from the First Defendant or anyone purporting to be the First Defendants' servant or agent for any person or persons to be given access to the Premises on or before 7 December 2022, or alternatively, 22 December 2022, for the purpose of the removal of any items belonging to the First Defendant and or the Second Defendant from the storeroom, the pool plant and sub-plant rooms on Level 35 of the Premises. 5 I did not receive a request at any time on or after 9 November 2022 from the second Defendant or anyone purporting to be the Second Defendant Defendants' servant or agent for any person or persons to be given access to the Premises on or before 7 December 2022, or alternatively, 22 December 2022, for the purpose of the removal of any Items belonging to the First Defendant and or the Second Defendant from the storeroom, the pool plant end sub-plant rooms on Level 35 oft the Premises. 6 I have not on or since 9 November 2022 admitted any person to the Premises for the purpose of removing any items belonging to the First Defendant and or the Second Defendant from the storeroom, the pool plant and sub-plant rooms on Level 35 of the Premises. 7 To the best of my knowledge information and belief, no Items have been removed from the storeroom, the pool plant and sub-plant rooms on Level 35 of the Premises in the period from and Including 9 November 2022 and up until the time of my swearing this Affidavit. 8 I have not In the period from and Including 9 November 2022 and until the time of swearing this affidavit been provided with a key or opening device for any of the following doors by any person - (a) The doors to the car parking spaces on Level P3 of Strata Plan No 83861 which form part of the Premises (b) The entry door from the lift foyer on Level 34 of Strata Plan No 83861 to the laundry on Level 34 of Strata Plan No 63661 which forms part of the Premises, (c} The door to the storeroom on Level 35 of Strata Plan No 83861 which forms part of tile Premises, (d) The door to the pool plant room on Level 35 of Strata Plan No 83861 which forms part of the Premises, (e} The door to the pool sub-plant room on Level 35 of Strata Plan No 83861 which forms part of the Premises, and (f) The balcony doors on Level 36 of Strata Plan No 83861 which form part of the Premises."
17. On 17 January 2023 at 4:31PM, Mr de Mestre wrote to Mr Fraser: "Further to below, we are instructed that our client will be attending the premises tomorrow and the next day to clear the store room and will provide your client with the keys on completion."
18. This apparently positive development was promptly dismissed. Mr Fraser replied by email on the same day at 5:08PM: "Your clients do not have the right to attend the premises tomorrow nor the next day pursuant to either the undertaking given by our client or the residential tenancy agreement, and our client does not consent to your clients doing so. Our client will advise your client of dates in early February 2023 that your clients can have access, and your clients can attend the premise on one of those dates of their choosing in order to clear the storeroom. Please urgently confirm that your clients will not seek to gain access to the premises tomorrow nor the next day nor any other day for the purpose of clearing the storeroom without our client's prior express written consent."
19. On Friday, 27 January 2023, Mr Fraser wrote to Mr de Mestre: "We are instructed that our client is able to facilitate access to the storage unit on Level 35 on Tuesday 31 January 2023 for the day, commencing at 7 am so that works required by the written undertakings in paragraphs 2, 3 and 4 may be attended to. Please inform us by no later than midday on Monday 30 January 2023 as to whether your clients or their authorised representatives will attend on 31 January 2023 to carry out the works."
20. This brought a reply the following Monday from Mr de Mestre to Mr Fraser: "Marie [Ms Bolton] is overseas so will not be able to attend tomorrow to carry out the works."
21. On 14 February 2023, Mr Fraser wrote to Mr de Mestre: "We are instructed that our client is able to facilitate access to the storage unit on Level 35 and to the Premises for the purpose of producing keys not in your clients' possession on one of the following days from 7 am to 7 pm, subject to our client being given not less than 24 hours prior notice: Thursday & Friday 16 & 17 February 2023; Monday and Tuesday 20 & 21 February 2023 We await your advice as soon as possible as to when your clients or their authorised representatives will attend to carry out the works."
22. On 16 February 2023 Mr de Mestre wrote to Mr Fraser: "Marie is currently overseas. Our client can clear the storage shed on Monday 13 March, Tuesday 14 March and (if necessary) Wednesday 15 March. Can you please confirm your client will make access available on those days."
23. On 22 February 2023, Mr Fraser replied to Mr de Mestre: "Our client will allow access to your client on Monday 13 March 2023 from 7 am to 7 pm for the purpose of clearing the storage room. Your client will have to arrange for others to help her to ensure that the storage room is cleared within this period of access. Please confirm that your client will in fact attend on 13 March 2023."
24. On 28 February 2023, Mr de Mestre wrote to Mr Fraser: "Our client will be attending on 13 March 2023. As previously advised the items in storage are valuable and fragile. It is unlikely the task will be completed in 1 day. It seems sensible that access also be granted on 14 and 15 March if needed."
25. Then later on 28 February 2023, Mr Fraser replied to Mr de Mestre: "We are instructed that our client will only allow access to your client on 13 March 2023. As our client understands, the store room has an area of approx. 35 square metres and irrespective of the fragility of the items, there is no reason why with assistance from friends, relatives, employees and/or professional removalists that your client cannot clear the store room in the 12 hours for which she will have access to it on 13 March 2023."
26. On 2 March 2023, Mr de Mestre replied to Mr Fraser: "Our client will attend on 13 March 2023 and then advise you if further time is required."
27. A few minutes later on 2 March 2023, Mr Fraser replied to Mr de Mestre: "Please ensure that your client removes all of her belongings on 13 March 2023 within the time allowed on that day."
28. On 8 March 2023, Mr Fraser wrote to Mr de Mestre: "Our client has advised that he has overlooked a prior commitment, and will not be able to provide your client with access to the premises on 13 March 2023. He can however provide access on 14 March 2023 between 7am and 7 pm. Please advise whether your client will attend on that day and clear the store room."
29. On 13 March 2023, Mr de Mestre wrote to Mr Fraser: "Our client will not be attending the Premises on 14 March 2023 to clear the storeroom. Can you please advise of two alternate consecutive days."
30. On 16 March 2023, Mr Fraser wrote to Mr de Mestre: "Our client will allow your client access to clear the storeroom on any one day in the period 6 or 7 April 2023 between 7 am and 7 pm. Again, there is no reason why your clients cannot clear a 35m2 storeroom within a 12 hour period with assistance from one or more others. Your clients had up to 10 days from 9 November to 22 December 2022 within which to remove their goods at their leisure. Your clients despite their undertaking to the Court did not attend on any day in that period. Our client has since 22 December 2022 proposed 10 alternative days on which he was able to accommodate your clients attending to remove their goods from the storeroom (and to facilitate keys being produced). Your clients have also not attended on any of those alternative days and continue to be in breach of their undertakings. While our client has been reluctant to do so up until the present time, if your client and/or her agent/s do not attend and clear the storage room on one of the above dates, then our client will consider engaging professional removalists to remove the contents of the storeroom to an alternative off-site storage area. Please advise on which one day out of the above proposed day, that your client is able to attend and clear the storeroom."
31. The parties then ascertained that 7 April was a public holiday and then, after some further correspondence, on 16 March 2023, Mr Fraser wrote to Mr de Mestre: "Our client will facilitate access on 5 or 6 April 2023 as an alternative. Please seek instructions."
32. In an affidavit sworn both on her own behalf and on behalf of Tamqia on 21 March 2023 (the relevant part of which was tendered by Mr Novelly as an admission by the defendants against interest) Ms Novelly deposed "I intend to provide the keys to the Plaintiff after I empty the Storerooms".
33. On 28 March 2023, Mr de Mestre wrote to Mr Fraser: "Further to below we repeat our client's instructions that 2 to 3 days are required to clear the storeroom. This is partly so that precious items can be probably [sic] sorted and packaged before being moved. Would it be possible to nominate 3 consecutive days? Assuming your client does not agree, would Friday 21 April be agreed so that our client can start on the process?"
34. On 14 April 2023, Mr Fraser wrote to Mr de Mestre: "Our client is not able to facilitate access by your clients to the Premises on 21 April 2023 for the purpose of your clients complying with their undertakings given to the Court on 9 November 2023, but he is able to facilitate access for that purpose between 7 am and 7 pm on one of the following days - • 8, 9, 15, 16 May 2023. Please advise on which of the above days your clients want access to be facilitated."
35. The next relevant correspondence appears to have been on 6 June 2023, when Mr de Mestre's employee, Ms B Fang, wrote to Mr Fraser: "We note your client has given an undertaking to give access as our client reasonably requires to the storeroom. Your client has continuously failed to allow our client access. Our client is ready willing and able to clear the storeroom. As previously advised, our client believes she needs up to 3 days. As your client is aware, the items in the storeroom are valuable and fragile such as Lalique crystal vases and similar, porcelain dolls and expensive artworks. Our client needs up to a day to wrap the items, and then a further day to remove them, and possibly even a third day to finalise the moving. Our client would be prepared to attend the storeroom for one day and to progress the removal as much as she can in that day. Our client is available Friday this week, and Wednesday, Thursday and Friday next week, and then any day of the following week. Could you please advise which of these days is agreeable to your client, so that our client can attend to start preparing the items for removal. If your client still is only prepare to allocate to our client one day, we will update you as to her progress at the end of that day, with a further estimate of how much more time our client thinks she would require. Once your client has complied with his undertaking which is to give our client reasonable access to remove belongings from the storeroom, our client will then be in a position to provide keys."
36. On 13 June 2023, Mr Fraser replied to Ms Fang: "We refer to your email below [being the email of 6 June 2023 reproduced in [49] above]. This is an open email and our client may be tendered by our client as evidence [sic]. We reject your assertion that our client has continuously failed to allow your client access. However, please inform us of each occasion on which your client has refused to allow your client access. We note that we did not receive the courtesy of a response to our attached 14 April 2023 email proposing days for your client to attend to remove her goods. Our client also does not accept that your client is the only person capable to packing her goods safely and she should accordingly engage such assistance as she requires to enable all of her goods to be removed in one day. Our client is able to facilitate your client gaining access to the storeroom this Thursday, 15 June 2023 from 8.00 am until 6 pm. We also do not accept your clients' excuse for not supplying our client with any keys pursuant to their undertakings when only one of those keys is for the storeroom."
37. On 14 June 2023, Mr Fraser wrote to Mr de Mestre's firm: "Further to our email below, please confirm your client will be attending the premises tomorrow 15 June 2023 for the purpose of clearing the storage room on level 35, or alternatively advise if she will not be doing so."
38. Mr de Metre's firm replied a few minutes later: "Our client will attend the premises tomorrow 15 June 2023."
39. I find that on 15 June 2023 Ms Bolton and one other person attended the Premises to be met by Mr Novelly's friend Mr Wong. It is not necessary for the Court to make findings about what exactly occurred, other than to note as will be apparent from the next correspondence that the events on that day became a matter of further controversy between the parties.
40. On 21 June 2023, Mr de Mestre's employed solicitor wrote to Mr Fraser: "Our client and her employee Erol Vedat attended the premises on 15 June 2023, a time which you indicated your client is agreeable to, in order to clear storeroom. We are instructed that our client and Erol had encountered difficulties caused by a man name Terrance Wong in their effort to access and clear the storeroom. Upon arrival at the Hyde our client was refused access to the storeroom from the internal lift of the apartment by Terrance Wong, which we understand you are aware of, as our client indicated that you were telephoned in the course of our clients attempted access. When our client and Erol were eventually let in the apartment, they noticed that they were being recorded by a camera. After our client and Erol went to the storeroom, Terrance Wong tried to force himself into the storeroom with his camera on trying to record what was in the room. As a result of Terrance Wong's interference our client felt threatened and harassed. Please urgently indicate whether or not your client is agreeable to our client accessing the storeroom next Wednesday or Thursday."
41. On 25 June 2023, there were several emails between the parties which culminated in this email from Mr Fraser to Mr de Mestre which included: "We are not able to contact our client at present for advice as to what security cameras there are internally within the premises, but if there are any, then they are operating on whatever settings they have been operating on since before our client left for overseas. There was no change made to them as a consequence of your client's attendance on 15 June 2023. Further, damage can occur accidentally, and if your client causes any accidental damage while moving through the premises, our client does not wish to be blamed for that damage or to be in a protracted dispute about who caused it etc. This is a reasonable concern given that our clients are now into the second year of their court proceedings. In our view, our client has a rational basis for wishing to record your client's and her servants/agents' movements through the premises. Most shops and many public places have cameras. There is nothing at all unusual about it. Your client also has the option of gaining access to the storage room via the fire stairs and does not need to pass through the premises. Please advise whether your client will attend on Thursday 29 June 2023 and the times that she will be attending (which should be until the storage room has been vacated)."
42. On 26 June 2023, Mr Fraser wrote to Mr de Mestre's employed solicitor Ms Fang: "We will respond to the allegations below more fully shortly. In the meantime, we are instructed that Mr Wong is able to facilitate access on Thursday 29 June 2023. Noting that your client was only at the premises for 1 and ¾ hours on 15 June 2023 (she arrived at 11.43 am and left at 1.14 pm), and so as to minimise unnecessary inconvenience to Mr Wong, please advise as soon as possible what time your client will arrive at the premises on 15 June 2023, and how long she will require access to the storeroom on that day. Mr Wong can be available between 8 am and 6 pm."
43. One hour later, Mr Fraser sent a further email which included: "In order to minimise the prospect of further disputes about by whom or how damage to the premises was/is caused, our client reasonably wants a record of your client's movements through the premises. Accordingly, if your client requires access via the lift on 29 June 2023, then a condition of her use of same is that her movements through the premises will be recorded by Mr Wong or a security guard as the case may be. Alternatively, she is welcome to use the fire stairs. Alleged forcible entry to storeroom We also asked Mr Wong to make a video recording of the storeroom and its contents, but not to touch any contents, and hence why Mr Wong sought access to the storeroom. Mr Wong and any security guard our client may engage is authorised by our client to enter the storeroom and to make a video recording of the storeroom and its contents, but not to touch any of the contents. Accordingly, please ensure that on 29 June 2023 that your client does not forcibly block Mr Wong's and or security guard's to entry to the storeroom as she and Mr Vedat did on 15 June 2023. Allegation of feeling harassed and threatened Our client rejects that your client's allegation that she, accompanied by Mr Vedat, a substantially larger man than is Mr Wong (who weighs approximately 53 kilograms), felt harassed and threatened by Mr Wong. In fact, Mr Wong advises he was injured when the door to the storeroom was forcibly closed onto him while he was in the doorway. Please confirm that your client accepts the condition of her entry into the premises on 29 June 2023 (being that her movements through the premises will be recorded), and that she acknowledges that Mr Wong and or any security guard engaged by our client are authorised to enter and make a video recording of the storeroom."
44. On 27 June 2023, Mr de Mestre wrote to Mr Fraser: "The conditions outlined in your email below are not acceptable to our client. It is difficult to accept that your client is not attempting to harass and intimate our client. Your client's insistence to record our client seems excessive when you have advised that there are security cameras in the Level 34 foyer and elsewhere in the premises and assumes that our client would damage her own premises."
45. On 28 June 2023, Mr Fraser wrote to Mr de Mestre: "Will you please advise whether your client will be attending the Premises to clear the storeroom, and if so, please respond fully to our emails sent on 26 June 2023 regarding the attendance."
46. Mr de Mestre replied a few minutes later: "Our client is not comfortable and does not consent to being filmed so will not be attending."
47. On 4 July 2023, Mr Wong facilitated two locksmiths entering the Premises to change a number of locks on the three levels of the Premises, including the lock to the storeroom.
48. On 14 July 2023, Ms Fang wrote an email to Mr Fraser which included: "We write to provide you with an update with regard to the following matters: 1. Collection of our client's belongings from the Shared Area; 2. keys for the Premises; and 3. to arrange further access to the premises Collection of our client's belongings We refer to our recent correspondence resting [sic] with our email dated 28 June 2023 and wish to clarify our client's position. On 24 November 2022, your client gave undertakings to the court. In particular, your client undertook to provide our clients with access to the premises as was reasonably required to remove any items belonging to them from the Excluded Areas, being the pool plant, sub-plant and the storeroom. In turn, and based upon that undertaking, our clients gave undertakings to remove her belongings with access being limited to 10 occasions. The undertakings did not include any other conditions and certainly did not contemplate that our clients be recorded. As indicated in our 28 June email, our client does not wish to be recorded by audio-visual device, audio device or visual device. … Copies of keys for the Premises Our client has found a number of keys but, as they are unlabelled, is not able to determine whether they are copies of keys for the Premises without first testing them. In the event that your client permits access to the Premises, our client is able to test the keys on the doors and will leave at the Premises those which operate the doors to the Premises. Further arrangements to access the Premises In the event that your client is now prepared to allow access to the Premises in accordance with the terms of the undertaking he has already given, our client is available to return to the Premises on 21 July 2023 to remove the remainder of her belongings. Please let us know if those dates are convenient."
49. Further correspondence between the solicitors on 20 and 21 July 2023 concluded in an email from Mr Fraser to Ms Fang which included: "Further to our email below, Mr Wong is no longer able to facilitate access on Monday 24 July 2023. He has now advised that he can also facilitate access on Tuesday 25 July 2023, but Wednesday 26 July 2023 is more convenient to him. Would you please advise as soon as possible on which day your client will attend and approximately start and end times. For the avoidance of doubt, Mr Wong can facilitate access for the entirety of each of the days noted above."
50. On 24 July 2023, Ms Fang emailed Mr Fraser: "Could you please confirm our client will not be filmed or recorded?"
51. Later that morning, Mr Fraser responded to Ms Fang: "There are security cameras which we understand were installed at the premises by your client or the developer - Mr Novelly is away and Mr Wong is not aware of their settings, which we expect may be unchanged from the settings as they were before our client took occupation. Accordingly, those cameras will record whatever they would usually record. Your client will not however be separately recorded by Mr Wong or any third party. Please advise as soon as possible whether your clients wish to gain access to the Premises to finally clear out the storeroom on Tuesday or Wednesday of this week."
52. Further correspondence on 24 and 25 July 2023 included this email from Mr Fraser to Ms Fang on 24 July 2023: "Mr Wong has requested your advice as to how long your clients expect to be at the premises on Wednesday - your clients' expectation should be based upon how long Ms Bolton expects it will take her to clear the remainder of your clients' contents from the storeroom so that our client will have vacant possession of same from Wednesday [26 July]."
53. On 25 July 2023, Mr de Mestre responded to Mr Fraser: "In response to below, our client expects to be at the premises by 12 noon then there for most of the afternoon."
54. On 26 July 2023, Ms Bolton attended the Premises with two men with trolleys. Mr Wong gave them access but matters rapidly deteriorated into a dispute about Mr Wong taking photographs of the internal lift in the Premises. Ms Bolton and the two men left the Premises within minutes. It is not necessary for present purposes for the Court to make any findings other than these about what occurred.
55. As at the hearing, the Court finds the storeroom was still not completely cleared of items which belonged to one or both of the defendants.

Undertakings to the Court - what should have happened

1. Before going any further, it is necessary to say something about what should have occurred where undertakings had been given to the Court. The parties appeared to be oblivious to the fact that once those undertakings had been given, compliance with those undertakings ceased to be purely a matter for the parties themselves. Had the proper steps been taken immediately and the proceedings promptly relisted, it is likely that the need for the present application would have been avoided.
2. Where a party gives an undertaking to the Court (the Party Bound) to do something by a specified time, even where the giving of that undertaking is part of an inter partes agreement, compliance with that undertaking becomes a matter under the control of the Court and involves specific obligations to the Court by the Party Bound. Those obligations are quite separate to the rights of the other party to the agreement which gave rise to the giving of the undertaking and include: 1. If the Party Bound becomes aware that it will not be able to comply with an undertaking involving a future obligation, then the Party Bound should relist the proceedings promptly, explain the circumstances and seek to be released from the undertaking. The other party has a right to be heard on that application and any release could be on terms, such as that the Party Bound would have to give a fresh undertaking to comply by a new date. The same result could be achieved by the Court permitting the original undertaking to be varied. 2. If the Party Bound is in breach of the undertaking, it must promptly relist the proceedings upon the breach occurring to seek to be excused from the breach. Again, the other party has a right to be heard on that application and any absolution by the Court could be on terms, such as that the Party Bound would have to give a fresh undertaking to comply by a new date. 3. Any dispute between parties about the construction of an undertaking or whether there has been a breach should be referred to the Court by one or other party promptly relisting the matter rather than engaging in rounds of argumentative correspondence or threatening (or commencing) contempt proceedings.
3. To avoid having to return to Court unnecessarily, it is permissible (and usually desirable) for undertakings to the Court, which specify a time for compliance, to include "or as the parties may otherwise agree". This enables the parties, for example, to extend the time for compliance by agreement. In the absence of such a provision, it is not sufficient for the parties to agree an extension between themselves. The Party Bound must apply to the Court for leave to vary its undertaking. Where that variation is not opposed, a consent minute of order granting leave can be filed in Court to be made by the Registrar or referred to a judge if necessary. There would also be no criticism if the Party Bound approached the chambers of the judge who accepted the undertaking to make the consent order.
4. What I have set out in the preceding two paragraphs is not just a formal nicety. Undertakings to the Court are solemn obligations and must be treated as such.
5. Applying these principles to the present case, the defendants should have relisted the proceedings on or shortly after Mr de Mestre's email of 7 December 2022 and sought to explain why they could not comply with the undertakings and sought consequential relief. If they had failed to do so within two or three days of having notified Mr Novelly that they could not comply, then Mr Novelly should have relisted the matter. On any view, the proceedings could and should have been relisted before a judge before the Court vacation. That the parties should engage in what has in fact occurred is fundamentally misguided in the context of undertakings having been given to the Court.

What has been proven - generally

1. The statements of charge in respect of both Tamqia and Ms Bolton appended to the further amended notice of motion are set out in the schedule to these reasons . For the purpose of considering the arguments raised, it is convenient again at this point to set out the undertakings. For ease of reference and to avoid repetition, I refer to the various parts of the undertakings by the descriptions which appear below: "The First Defendant (by itself it and its servants and agents) and the Second Defendant (by herself and her servants and agents) undertake to the Court that they will: 1. not park in any of the Plaintiff's leased car parking spaces on Level P3 of Strata Plan No 83861 at the property known as Apartment 3401, The Hyde, 157 Liverpool Street, Sydney NSW (the Premises) whilst the Plaintiff is the tenant of the Premises pursuant to the residential tenancy agreement dated 6 May 2021; [The Defendants' Parking Undertaking] 2. within 28 days, remove all items belonging to either of them from the storeroom, the pool plant and sub-plant rooms on Level 35 of the Premises (the Excluded Areas), with access for such purpose to be limited to 10 occasions; [The Defendants' Removal Undertaking] 3. within 28 days, approach the Owners Corporation for approval to supply and install a Toto Neorest XH II toilet in each of the master bedroom ensuite on Level 34 of the Premises and the shower / steam room adjacent to and behind the kitchen on Level 36 of the Premises and, if such approval is given, undertake and, once commenced, complete the approved work as soon as is reasonably practicable; [The Defendants' Toilet Undertaking] and 4. within 28 days, provide to the Plaintiff (or his lawyers): a. a copy of each key or opening device which is in their possession for each of the doors referred to in each of prayer 9 and prayer 18AC of the Amended Statement of Claim, [The Defendants' Own Key Undertaking] and b. for those keys or opening devices which they do not have, use all reasonable endeavours to cause the Owners Corporation or locksmith or other tradesman or technician to provide to the Plaintiff (or his lawyers) a key or opening device for each of the doors referred to in each of prayer 9 and prayer 18AC of the Amended Statement of Claim. [The Defendants' Missing Key Undertaking] This undertaking is subject to the Plaintiff (by himself and his servants and agents) undertaking to the Court to provide (during business hours and subject to the Plaintiff (or his lawyers) having been given 24 hours' written notice) to: 1. the First Defendant (by itself it and its servants and agents) and the Second Defendant (by herself and her servants and agents) such access to the Premises as they (or either of them) may reasonably require to remove any items belonging to either of them from the Excluded Area; [The Plaintiff's Removal Access Undertaking] and 2. the Owners Corporation (by itself it and its servants and agents) or any locksmith or other tradesman or technician retained by or behalf of the Defendants (or either of them) such access to the premises (including without limitation the car parking area forming part of the Premises) as may be required to obtain or make keys or opening devices for the doors referred to in each of prayer 9 and prayer 18AC of the Amended Statement of Claim [The Plaintiff's Key Access Undertaking]."
2. There was no dispute between the parties that every element of each of the charges had to be established beyond reasonable doubt and that the onus of proof was on Mr Novelly. Furthermore, I have approached the task on the basis that no inference can be drawn against the defendants by reason of their failure to go into evidence: Markisic & Anor v Keelty [2005] NSWSC 1124 at [51] per Simpson J (as her Honour then was). The relevant parts of the Amended Statement of Claim referred to in paragraphs [77] and [78] are set out in [99] to [101] below.
3. As to Tamqia: 1. By reference to the facts set out above, the Court is satisfied beyond reasonable doubt and finds that Tamqia did not by itself, its servants or agents within 28 days of 24 November 2022, remove all items belonging to either it or Ms Bolton from the storeroom on Level 35 of the Premises. Subject to what follows in these reasons, Tamqia has breached the Defendants' Removal Undertaking and paragraph 1 of the statement of charge against Tamqia has been established. 2. By reference to the facts set out above, the Court is satisfied beyond reasonable doubt and finds that Tamqia did not by itself its servants or agents within 28 days of 24 November 2022 provide to the Plaintiff or his lawyers a copy of each key or opening device which was in the possession of Tamqia or Ms Bolton for each of the doors referred to in prayer 9 of the Amended Statement of Claim. Subject to what follows in these reasons, Tamqia has breached the Defendants' Own Key Undertaking and paragraph 2 of the statement of charge against Tamqia has been established. 3. By reference to the facts set out above, the Court is not satisfied beyond reasonable doubt and does not find that Tamqia did not by itself its servants or agents within 28 days of 24 November 2022 use all reasonable endeavours to cause the Owners Corporation or locksmith or other tradesman or technician to provide to the Plaintiff or his lawyers a key or opening device for each of the doors referred to in prayer 9 of the Amended Statement of Claim and for which Tamqia or Ms Bolton did not have a key or opening device. What Mr Novelly has established is that he did not receive various keys by 22 December 2022. This is insufficient to prove beyond reasonable doubt that Tamqia did not use all reasonable endeavours by that date to cause the specified things to happen by that or any other date. Paragraph 3 of the statement of charge against Tamqia has not been established.
4. As to Ms Bolton: 1. By reference to the facts set out above, the Court is satisfied beyond reasonable doubt and finds that Ms Bolton did not by herself, her servants or agents within 28 days of 24 November 2022, remove all items belonging to either Tamqia or Ms Bolton from the storeroom on Level 35 of the Premises. Subject to what follows in these reasons, Ms Bolton has breached the Defendants' Removal Undertaking and paragraph 1 of the statement of charge against Ms Bolton has been established. 2. By reference to the facts set out above, the Court is satisfied beyond reasonable doubt and finds that Ms Bolton did not by herself, her servants or agents within 28 days of 24 November 2022 provide to the Plaintiff or his lawyers a copy of each key or opening device which was in the possession of Tamqia or Ms Bolton for each of the doors referred to in prayer 9 of the Amended Statement of Claim. Subject to what follows in these reasons, Ms Bolton has breached the Defendants' Own Key Undertaking and paragraph 2 of the statement of charge against Ms Bolton has been established. 3. By reference to the facts set out above, the Court is not satisfied beyond reasonable doubt and does not find that Ms Bolton did not by herself, her servants or agents within 28 days of 24 November 2022 use all reasonable endeavours to cause the Owners Corporation or locksmith or other tradesman or technician to provide to the Plaintiff or his lawyers a key or opening device for each of the doors referred to in prayer 9 of the Amended Statement of Claim and for which Tamqia or Ms Bolton did not have a key or opening device. What Mr Novelly has established is that he did not receive various keys by 22 December 2022. This is insufficient to prove beyond reasonable doubt that Ms Bolton did not use all reasonable endeavours by that date to cause the specified things to happen by that or any other date. Paragraph 3 of the statement of charge against Ms Bolton has not been established.

What has been proven - contumelious conduct

1. Insofar as the Court has found (subject to the defences and other matters discussed below) that any paragraphs of the statements of charge have been established beyond reasonable doubt, the next question is whether the Court is satisfied beyond reasonable doubt that the conduct which has been proven was contumelious.
2. The relevant authorities are set out in [116] to [130] below. There is no doubt that breaches of undertakings to the Court usually constitute civil contempts. If the relevant conduct is contumelious then the contempt will become criminal. The essence of contumelious conduct is conduct which is established, beyond reasonable doubt, to demonstrate a deliberate defiance (not necessarily public) of complying with the Court's order (or in this case, with the defendants' own undertaking), being a clear manifestation of a determination not to obey.
3. It was submitted for Mr Novelly that when the entire history recited in the facts section above is taken into account, including the absence of explanation by the defendants for their non-compliance, the Court should be satisfied beyond reasonable doubt that the defendants' conduct was contumelious. I am not so satisfied.
4. In case the matter goes further, the Court is satisfied beyond reasonable doubt that such breaches as have been established (subject to the defences discussed below) are civil contempts: deliberate in the sense of wilful breaches, being more than casual, accidental or unintended (see [130(1)] below). However, I am not satisfied that the defendants' conduct was defiant of compliance with the undertakings or clearly manifested a determination not to comply with them.
5. The initial communication on 7 December 2022 (see [17] above) is not defiant in tone, notwithstanding the absence of explanation or apology. The communication on 19 December 2022 (see [22] above) contains an apology and remains temperate in the face of aggressive allegations of contumelious contempt (see the letter of 12 December 2002 reproduced in [18] above). Nor, given the time of year it was made, do I accept Mr Novelly's submission that the defendants' refusal to take up his offer in the letter of 22 December 2022 (see [26] above) was contumacious. I also do not accept that the Court can be satisfied beyond reasonable doubt that the non-compliance up to and including 22 December 2022 was contumacious based only upon the facts of non-compliance and the absence of an explanation for that non-compliance.
6. What then follows in 2023 demonstrates (on both sides, but relevantly Ms Bolton in her own right and as the controlling mind of Tamqia) acrimony, distrust, petulance, arrogance, a misguided belief that performance was for the parties alone (see my observations in [70] to [74] above), and an unreasonable insistence on personal performance (notwithstanding that the undertakings contemplated performance by servants or agents). However, through the fog of war generated by the solicitors' correspondence, the Court finds that the defendants nevertheless manifested in that correspondence that on some basis they would perform what the undertakings required, albeit with the specified time having passed. Importantly, there was no suggestion from the defendants that under no circumstances would they ever perform the obligations they had undertaken.
7. While what has occurred between the parties is hardly edifying, and is capable of being seriously criticised, I am nevertheless not able to be satisfied beyond reasonable doubt that the defendants exhibited deliberate defiance of the undertakings that would meet the description of contumelious or contumacious as those terms are to be understood on the authorities. A finding of contumacy is also negated by the fact that while legally misguided (see [74] above), the parties did keep asserting (and to a limited extent complying with) later times for performance. In case the matter goes further, I note that the Court has refrained from making findings about how Ms Bolton is alleged to have conducted herself on the occasions she did visit the Premises (see [53] and [68] above). Even if I had made findings based on Mr Wong's and Mr Novelly's evidence on those matters, that conduct would have fallen within the descriptions in the preceding paragraph and not change my conclusion that contumelious conduct had not been established beyond reasonable doubt.

Defence - construction of the undertakings and an alleged ambiguity

1. There was no dispute between the parties about the applicable legal principles insofar as the construction of the undertakings is concerned. The parties referred to my summary in Bathurst Real Estate Pty Ltd v Fairbrother [2022] NSWSC 351: "57 Including by reference to the authorities referred to in [47] - [52] above, the correct approach to a problem such as the case at bar may be summarised as: (1) An undertaking must be given a sensible meaning if possible. (2) Identifying whether an undertaking is ambiguous so as to preclude a finding of contempt can only be done by determining the proper construction of the undertaking. (3) The tasks of construction and identification of any ambiguity are to be approached with a caution that recognises the consequences for breach may be punishment. This calls for an approach similar to that applied to penal statutes and is why "plain meaning" assumes particular importance. Given the consequences for breach, an order should be interpreted recognising that its meaning should be clear on its face to the person bound, who should not be expected to need recourse either to lawyers or to subtleties such as implications or inferences (reasonable or otherwise). (4) The proper construction of the undertaking is to be done in accordance with the familiar canons of the construction of legal instruments: an objective determination of meaning giving primacy to the text, but read in the light of the context including the purpose of the undertaking and the surrounding circumstances known to the parties. (5) There can be no ambiguity if, as in Pang, the undertaking could have only one meaning to avoid being meaningless or nonsensical. (6) However, there can be no contempt if the meaning of the undertaking is ambiguous. (7) The requisite ambiguity that will prevent a finding of contempt will exist if the Court is satisfied that, in a respect which is relevant to the particular charge of contempt, there are clearly or reasonably arguable alternative contentions for the constructional choices required to be made to ascertain the meaning of the undertaking. While they may largely overlap, "clearly" and "reasonably" are not coextensive in this context. However, not every difficulty of construction raised by an alleged contemnor will meet this threshold."
2. Mr Lloyd SC's first argument in defence involved two propositions.
3. First, it was said that the undertakings (set out in [75] above) on their proper construction were "entire" (my description) in the sense that non-compliance by one party (in this case said to be Mr Novelly) meant that the occasion for the defendants' performance of any of the undertakings never arose.
4. Second, and again as a matter of construction, it was put that the defendants' obligations to perform any of their undertakings did not arise until Mr Novelly had complied with the Plaintiff's Removal Access Undertaking, there being no issue for the purposes of the contempt motion concerning the Defendants' Parking Undertaking and the Defendants' Toilet Undertaking.
5. In support of the contention that the undertakings were what I have described as entire, Mr Lloyd SC drew attention to the fact that the parties had chosen in the chapeau to Mr Novelly's undertakings to use the words "This undertaking".
6. In my respectful view, these two construction arguments are untenable on the plain language of the undertakings, for the following reasons.
7. First, the undertakings must be read as a whole. While the use of the words "This undertaking" cannot be overlooked, it is clear from the terms of the undertakings that they are a series of discrete obligations, subject only to the fact that some of the defendants' obligations are dependent upon Mr Novelly performing his obligations. While accepting that her Honour's choice of language is not dispositive, I am fortified in the conclusion I have reached by the fact that in the First Judgment, her Honour refers at [54] to accepting the "following undertakings".
8. Second, Mr Lloyd SC was, with respect, correct to offer that the main obstacle to both aspects of the construction argument that he was advancing was the Defendants' Parking Undertaking. Of its very nature, that undertaking is not dependant on any of the other undertakings. That qualification or concession was rightly made. It is clear from their terms that the various undertakings given by the defendants deal with discrete subject matters.
9. Once it is accepted that there are four such discrete subject matters, the structure of the undertakings is straightforward. It is apparent both as a matter of practical reality and construction. The Defendants' Parking Undertaking and the Defendants' Toilet Undertaking deal with discrete matters and are not qualified by anything. The Defendants' Removal Undertaking is in terms qualified by the Plaintiff's Removal Access Undertaking, so much being apparent from the fact that the defined term "Excluded Areas" appears in both undertakings. Nothing can turn on the typographical error in the Plaintiff's Removal Access Undertaking that refers to "Excluded Area" in the singular. Similarly, the Defendants' Missing Key Undertaking is qualified by the Plaintiff's Key Access Undertaking, again confirmed by the common reference to "prayer 9 and prayer 18AC of the Amended Statement of Claim".
10. Even if the undertakings were not entire in the sense in which I understood the first aspect of Mr Lloyd SC's argument, the second proposition of construction which he advanced was also deployed specifically in relation to the Defendants' Removal Undertaking. The argument was that, as a matter of construction and putting it colloquially, Mr Novelly had to go first. This was a submission to the effect that the Plaintiff's Removal Access Undertaking had to be performed by Mr Novelly first informing the defendants of the time when access to the Premises would be given. Until that had occurred, the Defendants' Removal Undertaking was not enlivened.
11. That construction is both impractical and not available on the plain language of the undertakings. It is decisively negated by the chapeau to Mr Novelly's undertakings which refers to "having been given 24 hours' written notice". That must refer to notice by the defendants of their intention to perform the Defendants' Removal Undertaking. "Having been" is the perfect past participle and is used to indicate that something has been done before something else happens.
12. The interaction of the Defendants' Removal Undertaking and the Plaintiff's Removal Access Undertaking is clear: on up to ten occasions in order to perform the Defendants' Removal Undertaking, the defendants were to give 24 hours' notice of their intention to attend the Premises during business hours, in which event Mr Novelly was obliged by the Plaintiff's Removal Access Undertaking to give the defendants access to the Premises for the time notified. Given the parties expressly contemplated the possibility that up to ten visits would be required to perform the Defendants' Removal Undertaking, an obvious objection, for example, to the construction advanced on behalf of the defendants was that if Mr Novelly, as it were, had to go first by notifying the defendants of when they could have access, it would be open to him to stymie the defendants by only giving the first notice on the 28th day of the period limited for the performance of the Defendants' Removal Undertaking.
13. In addition to the foregoing, Mr Lloyd SC advanced a further and alternative defence in relation to the defendants' undertakings concerning keys or opening devices. That argument was that the Defendants' Own Key Undertaking and the Defendants' Missing Key Undertaking were ambiguous having regard to the fourth proposition from Bathurst Real Estate (see [86] above) because there was no "prayer 18AC of the Amended Statement of Claim". It was further submitted that Mr Novelly could not overcome the problem by charging a contempt, as had been done, only by reference to prayer 9 of the Amended Statement of Claim.
14. Prayer 9 of the relief sought in the amended statement of claim related to keys or opening devices to specified doors: "9 An Order by way of specific performance of clause 32.2 of the Agreement that the defendant deliver up to the plaintiff within 7 days after the date of these orders a copy of the key or opening device or information to open and lock the lock or security device for all lockable doors in the Premises and to those parts of the common property in Strata Plan No 83961 to which the plaintiff is entitled to have access, including without limitation, the key, opening device or information to open for the following doors - (a1) the doors to the car parking spaces on Level P3 of Strata Plan No 83861. (a) the entry door from the lift foyer on to Level 34 of Strata Plan No 83861 to the laundry on Level 34 of Strata Plan No 83861, (b) the door to the storeroom on Level 35 of Strata Plan No 83861, (c) the door/s to the pool plant and sub-plant rooms on Level 35 of Strata Plan No 83861, and (d) all balcony doors on Level 36 of Strata Plan No 83861."
15. It is correct to say there was no prayer 18AC of the Amended Statement of Claim. Prayers 18A and 18C of the Amended Statement of Claim do not refer to doors: "18A An order that within 2 business days of the date of these orders, the defendants by themselves, their servants and agents do all necessary acts and things to cause all access fobs/devices other than those issued to the plaintiff and other than that or those already held by the defendant to be delivered to the second defendant. … 18C Order that the defendants be restrained from authorising or permitting any person to enter or use the car spaces of the Premises, or any other space within the garage of the Premises until after the expiry of the term of the residential tenancy agreement other than strictly in accordance with the terms of the residential tenancy agreement or Court order or order of NCAT."
16. That being acknowledged, there is a paragraph 18AC in the pleading section of the Amended Statement of Claim: "18AC The remote control device to operate the retractable doors in front of the car space and storage spaces located on that part of the Lot 131 which is on Level P3 of the Strata Plan No 83861 was not working from the state of the Term."
17. This does refer to opening devices for specified doors and is obviously what was intended to be referred to in the relevant paragraphs of the undertakings.
18. The Court infers that by some oversight (a not unusual occurrence when documents such as the undertakings are prepared under the pressure of litigation) the word "prayer" has been repeated in relation to what should have been a reference to "paragraph 18AC". However, this does not give rise to an ambiguity of the kind that would vitiate the defendants otherwise being held in contempt of the relevant undertakings.
19. As is summarised in the fourth proposition I set out in Bathurst Real Estate, an undertaking must be construed "in the light of the context including the purpose of the undertaking and the surrounding circumstances known to the parties". These are the defendants' own undertakings given with the benefit of legal assistance. It is apparent from the Amended Statement of Claim and the First Judgment that the parties were well and truly cognisant of the issues in dispute between them - being the surrounding circumstances for the purposes of construction - right down to the minutiae of matters which Peden J ultimately described as "trivial" (see [2] above). They were well aware of what was being sought to be achieved by the undertakings. In this case, "prayer 18AC" on its proper construction can only mean "paragraph 18AC", and there is no ambiguity.
20. I do not accept that the defendants could have been in any genuine doubt about what was intended to be signified by the reference to "prayer 18AC". If there was any doubt, the briefest examination of the Amended Statement of Claim could have cleared it up. Alternatively, it could have been the subject of enquiry by the defendants to Mr Novelly. There is no evidence of any such enquiry.
21. I am fortified in the conclusion I have reached by this observation of Nicholas J on the construction of undertakings in Australian Competition and Consumer Commission (ACCC) v Allphones Retail Pty Ltd (No 4) (2011) 280 ALR 97; [2011] FCA 338 at [12] that "even if the court is satisfied that words used in an undertaking should be given a particular meaning or denotation, it may also need to consider whether such meaning might fairly be expected to have been within the contemplation of the person alleged to have contravened the undertaking at the time he or she gave it". For the reasons I have already given, the Court is well satisfied that "paragraph 18AC" was within the contemplation of the defendants at the time they gave the undertakings through their counsel.

Defence - contumelious conduct alleged but not proven

1. Mr Lloyd SC's other line of defence was not a matter of construction, but rather what I shall describe for convenience (and notwithstanding what I have said in [7] above) as a pleading point.
2. Mr Novelly's further amended notice of motion sought relief which included: "1 That Tamqia Pty Ltd ACN 612 438 847 be found guilty of to have committed contempt of court in respect of each of the breaches of undertakings given by it to the Supreme Court of New South Wales listed on the Statement of Charge in respect of Tamqia Pty Ltd ACN 612 438 847 attached to this notice of motion. 2 That Marie Bolton be found guilty of to have committed contempt of court in respect of each of the breaches of undertakings given by her to the Supreme Court of New South Wales listed on the Statement of Charge in respect of Marie Bolton attached to this notice of motion. 3 That Marie Bolton be found guilty of to have committed contempt of court in respect of each of the breaches of undertakings given by Tamqia Pty Ltd ACN 612 438 847 to the Supreme Court of New South Wales listed on the Statement of Charge in respect of Tamqia Pty Ltd ACN 612 438 847 attached to this notice of motion. 4 That Tamqia Pty Ltd ACN 612 438 847 suffer a fine or such punishment as the Court may determine in respect of the said contempt/s. 5 That Marie Bolton suffer committal to prison, a fine, or both or such punishment as the Court may determine in respect of the said contempt/s."
3. As might be expected, prayers 1, 2 and 3 refer to the breaches listed on the relevant statement of charge. These are set out in Schedule A of these reasons. Each of the statements of charge expressly particularises that each of the alleged breaches of the undertakings "was contumacious".
4. Mr Lloyd SC submitted that Mr Novelly had expressly particularised the defendants' alleged conduct as "contumacious" in the statements of charge, thereby making it clear that what was alleged was a criminal rather than a civil contempt. Consistently with that assertion, Mr Barham had contended throughout the hearing that the defendants' conduct was contumacious and was therefore a criminal contempt. If any contempt had been demonstrated, so Mr Lloyd's argument ran, it was only a civil contempt. This is what the Court has concluded (see [82] above). However, the submission was that the further amended notice of motion should be dismissed because Mr Novelly had failed to make out what had been expressly charged, namely criminal contempts.
5. Mr Lloyd SC candidly accepted that he was unaware of any authority which had considered his argument. I will, however, refer below to authorities which provide some context in which Mr Lloyd SC's argument can be considered.
6. Mr Barham responded that nowhere in cases otherwise close to the present issue, such as the decision of White J (as his Honour then was) in Australian Securities and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62 and of Biscoe J in Mosman Municipal Council v Kelly (No 3) (2009) 167 LGERA 91; [2009] NSWLEC 92 was there any suggestion that by the inclusion of a particular of contumacious conduct in the charge, the applicant had made some kind of irrevocable election. Furthermore, SCR Part 55 makes no provision for such an election.
7. In my respectful view, for Mr Novelly to invoke the concept of election is a category error. It is not a question of election (usually between alternatives which may involve inconsistent allegations) but rather more straightforwardly a question of what has been charged. The argument proceeded on the basis that there was no authority, binding on me or otherwise, which has dealt with the consequences of where the statement of charge expressly includes an allegation of contumacious conduct which has not been proven beyond reasonable doubt.
8. Before turning to the authorities such as they are, it is convenient to set out why I have concluded that Mr Lloyd SC's submission is correct: 1. An otherwise civil contempt such as for breach of an undertaking will become a criminal contempt if it is established beyond reasonable doubt that the conduct was contumacious or contumelious (the terms being synonymous for present purposes); 2. Despite criticism of the utility of the distinction between civil and criminal contempt and the absence of that distinction in SCR Part 55, criminal contempt remains a legally recognised species of the genus contempt. 3. The distinction between civil and criminal contempt remains important for some purposes. 4. SCR Part 55 r 7 describes the mandatory statement of charge as "a statement specifying the contempt of which the contemnor is alleged to be guilty". 5. The seriousness of an allegation of contempt is demonstrated by the fact that each element must be established beyond reasonable doubt, whether or not civil or criminal contempt is charged. It is a matter of elementary justice that a party charged with contempt is entitled to conduct their case on the basis that the charge which they are required to meet is the charge that has been particularised against them. 6. Authorities about what does not have to be expressly alleged in the statement of charge are of no assistance in determining what is to occur if something is alleged in the charge and not made out. 7. The undoubted relevance of contumacious conduct to penalty does not mean it is irrelevant to liability, especially where it has been expressly particularised.
9. By reason of the foregoing, in my respectful opinion, where a statement of charge alleges criminal contempt by an express particularisation of contumacious conduct which is not expressed to be a further or alternative element of the charge, the charge must fail if that element is not made out. As a matter of fundamental procedural fairness in a universe of discourse where the penalty may include imprisonment or a substantial fine, the applicant cannot fall back on a "lesser" charge of civil contempt if the alleged criminal contempt has not been made out. For example, if only criminal contempt (contumelious conduct) has been particularised, the defendant is entitled to take (and will readily be assumed by the Court to have taken) significant forensic decisions on that basis, including whether or not to go into evidence.
10. The proposition in [114(1)] above derives from the decision of the Hight Court in Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3, which established that all the elements of a contempt, whether civil or criminal, must be established beyond reasonable doubt. The relevant passages are set out in Sigalla: "52 The background to Witham v Holloway is Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127. McLelland J (as his Honour then was) was concerned with a breach of an undertaking where the breach had been established on the balance of probabilities, but not beyond reasonable doubt. His Honour concluded that in the case of a wholly civil contempt the civil standard of proof applied, although the degree of satisfaction for which that standard called varied according to the gravity of the facts to be proved and the consequences flowing from the finding. In the case of a criminal contempt proof was required beyond reasonable doubt (at 136-137). His Honour characterised the charge before him as a civil contempt and upheld the charge applying the civil onus of proof. 53 This decision was followed at first instance in Witham v Holloway , but was overruled by the High Court in that case. Brennan, Deane, Toohey and Gaudron JJ described the distinction between civil and criminal contempts as follows (at 530): " In general terms, the distinction between civil and criminal contempt is that a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either when there is a contempt in the face of the court or there is an interference with the course of justice. However, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious. As well, in the case of some orders, described in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd as involving 'arbitrary classification', disobedience constitutes criminal contempt. They are orders forbidding interference with a ward of court, orders for the delivery up of a child and non-molestation orders. And it has been held that breach of a court order by a solicitor or by a liquidator is also a criminal contempt. " 54 Their Honours also said (at 531): "The basis of the distinction between civil and criminal contempt is said to lie in the difference between proceedings which are remedial or coercive in the interest of the private individual and proceedings in the public interest to vindicate judicial authority or maintain the integrity of the judicial process. " 55 Their Honours went on to reject as illusory the differences between civil and criminal contempts on which the distinction is based. In the course of doing so, their Honours rejected the suggested distinction between proceedings in the public interest and those that are coercive or remedial in the interests of the private individual as being a satisfactory basis for the distinction between civil and criminal contempt (at 532). Their Honours concluded (at 534): " Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as 'punitive' and others as 'remedial or coercive'. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking. The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch , that all proceedings for contempt 'must realistically be seen as criminal in nature'. The consequence is that all charges of contempt must be proved beyond reasonable doubt.""
11. Crucial for present purposes is the statement of Brennan, Deane, Toohey and Gaudron JJ that "however, disobedience or breach of an undertaking amounts to a criminal contempt if it involves deliberate defiance or, as it is sometimes said, if it is contumacious". "Contumacious" is the language used in the statements of charge.
12. It may be observed that many of authorities use the word "contumelious". The varying use of the terms "contumacious" and "contumelious" was considered by Justice Natalie Adams of this Court, writing extrajudicially, with Ms Belinda Baker, then a Crown Prosecutor and now a Judge of the Supreme Court of the Australian Capital Territory, in a paper delivered to the National Judicial College of Australia and the Australian National University Sentencing Conference on 29 February 2020 entitled "Sentencing for Contempt of Court". The learned authors said: "9. The words "contumacious" and "contumelious" are used interchangeably but have slightly different meanings; they both mean broadly the same thing: wilfully disobedient. 10. In Grocon v Construction, Forestry, Mining and Energy Union (CFMEU) (No 2), Cavanough J undertook an extended discussion of the requirements for contempt to be "contumacious". As his Honour noted at [86], a significant issue in dispute was whether the CMFEU's conduct could be classified as such. Citing Bromberg J in Vaysman v Deckers Outdoor Corporation Inc, his Honour noted that a contumacious breach is more than a mere wilful breach. A defendant is also not contumacious if they only behave in a way that is insulting. 11. His Honour then considered the cases which hold that contumacious conduct is conduct that is "deliberately defiant", quoting AMIEU v Mudginberri Station Pty Ltd: "where the conduct amounts to public defiance, involves a public injury and this calls into play a penal or disciplinary jurisdiction to deal with criminal contempt". However, his Honour considered that the weight of authority was in favour of deliberate defiance rather than public defiance, or an "obstinate disregard" of the obligation imposed by or owed to the Court. 12. In support of this conclusion, his Honour cited cases from a range of jurisdictions, including Mosman Municipal Council v Kelly (No 3) (where Biscoe J defined contumacious as "conscious defiance") and Pelechowski v Registrar, Court of Appeal (NSW) (where Kirby J used the language of "deliberate defiance"). 13. In Construction, Forestry, Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd, the Victorian Court of Appeal noted that the appellant did not challenge his Honour's findings as to the meaning of these terms. 14. Further, in Commissioner for Fair Trading v Voulon, a contempt case decided in the Supreme Court of Western Australia, Miller J noted (at [121]): "…the word 'contumacious' means what has been termed 'a perverse and obstinate resistance to authority'. The following passage from the judgment of Sir John Megaw in Re Jokai Tea Holdings sets out the meaning of the word "contumacious" for the purpose of these proceedings: The noun '"contumely", as defined in the Shorter Oxford English Dictionary reflecting, I believe, the sense in which it would ordinarily be understood, is "Insolent reproach or abuse". The conduct of the defendants, having regard to all the circumstances, could not be described as "contumelious". With all respect, it seems to me that the word "contumacious" would be more apt than "contumelious" in the passages in Lord Diplock's discussion of the effect of failure to comply with a peremptory order in Allen v Sir Alfred McAlpine & Sons , and in Birkett v James. "Contumacy" means "Perverse and obstinate resistance to authority". Surely it is that characteristic, not "insolent reproach or abuse", which is a frequent hallmark of a litigant's failure to comply with a peremptory order?" 15. As noted, this would appear to classify "contumacious" as wilfulness but "contumelious" as being something more "insolent" and "abusive"." (footnotes omitted)
13. In particular, I respectfully agree with what is said in paragraph 9 of the paper quoted in the preceding paragraph.
14. Witham also supports the proposition in [114(2)] above.
15. The proposition in [114(3)] above derives from the decision of the Court of Appeal in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [68] to [85] per Beazley JA (with whom McColl JA agreed, the latter also agreeing with the judgment of Lindgren AJA). In Lindgren AJA's judgment I respectfully also rely on what his Honour says at paragraphs [143] to [144]. Furthermore, paragraph [144] draws to attention that, unlike the present case, neither the notice of motion nor the statement of charge in Pang specified whether the charge was for a civil or criminal contempt, Lindgren AJA concluding that "the most that can be said be said here is that the motion put Mr Pang on notice of the fact that the charge was serious and did not exclude the possibility of a finding of criminal contempt".
16. Further authority for the proposition that the distinction between criminal and civil contempt remains a real one for some purposes appears from the judgment of White J in Sigalla at [76] to [88].
17. The propositions in the balance of [114] above require consideration of two additional authorities. The relevant authorities supporting the proposition in [114(5)] above were conveniently set out in Mosman Municipal Council by Biscoe J: "66 The fundamental principle underlying a statement of charge is one of elementary justice, as stated in Coward v Stapleton [1953] HCA 48, (1953) 90 CLR 573 at 579-580: "…it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him…The gist of the accusation must be made clear to the person charged… Resting as it does upon accepted notions of elementary justice, this principle must be rigorously insisted upon." 67 The principles relating to the formulation of a statement of charge were summarised by the Full Federal Court in Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155, (2005) 221 ALR 823 at [32] as follows (omitting citations): "(a) appropriate safeguards must be applied to protect the rights of parties accused of contempt; (b) parties accused of contempt are entitled to know the gist or substance of the charges against them; (c) where there is a Statement of Charge, the gist or substance of the allegations must be contained within the Statement of Charge and any particulars, and any deficiency cannot be remedies by resort to affidavit evidence; (d) amendments to charges will only be allowed to correct minor deficiencies, in circumstances where the accused suffers no prejudice; (e) where amendments are allowed, accused parties must be given an opportunity to put anything they fairly wish to say as to the evidence, the law and the sentence as they pertain to the amended charges; (f) parties accused of contempt are entitled to conduct their case on the basis that the only charge which they are required to meet is that which has been particularised against them; and, (g) appellate courts should not speculate as to whether, if a charge had been properly drawn or amended, the evidence adduced would have been the same or the conduct of the accused party's case would have been unaltered.""
18. Before returning to Mosman Municipal Council, reference should be made to refer to the other authority, being Markisic. Simpson J identified the issue before her: "33 The kind of contempt here alleged by Mr Markisic is simple disobedience of a court order. That does not necessarily involve deliberate suppression of facts or the presentation of falsehoods. It does, however, involve a mental element. 34 The question that arises concerns the minimum mental element necessary to establish contempt."
19. After considering the authorities, her Honour concluded: "40 I am, therefore, satisfied that the minimum necessary to found a conviction for contempt constituted by disobedience to a court order is wilfulness in the failure to comply. 41 But that does not necessarily dispose of the present issue. The question is whether it is also necessary that the statement of charge be formulated so as to incorporate such an assertion. 42 In Hayden v Ditfort (1988) 93 FLR 131 the NSW Court of Appeal wrote: "Contempt proceedings are, as has been said many times, criminal in nature. They must therefore be approached, as the opponent agrees, with strictness and with proper respect for the rights of the person charged. He or she should only have to answer such a charge in circumstances where the charge, on its face, arguably gives rise to an offence." 43 That, I have concluded, provides the answer to the question I have just posed. The statement of charge formulated by Mr Markisic, lacking an allegation of wilfulness, does not "on its face" arguably give rise to an offence. The statement of charge is, in that respect, and subject to what appears below, defective."
20. Her Honour's conclusion in the particular circumstances of the case before her was: "46 Here the Commissioner opted against taking objection to the statement of charge as a pleading point. He opted to proceed to a final hearing. In my opinion, he cannot be allowed to have it both ways. In electing to proceed to a final hearing, he has forfeited the right to challenge the formulation of the charge. (I do not mean by that that he has forfeited the right to rely upon strict proof of all elements of the offence.) The Commissioner also elected to press on with a final hearing without seeking to assert any right to particularisation. In all probability, had the Commissioner raised either of the pleading points pre-hearing, Mr Markisic would have been given leave to amend in order to rectify the defects. Further, since wilfulness is a necessary element in proof of the charge, its absence from the documentation causes no prejudice: whether wilfulness is pleaded or not, the charge will not succeed unless it is proved. The assertion of wilfulness may, therefore, without prejudice to the Commissioner, be read into the statement of charge."
21. In my respectful view, it may said about Markisic: 1. It is a case about something that was not pleaded, rather than something that was pleaded. It is therefore of no assistance in resolving the present question. 2. It is authority for the proposition that where contempt is charged, if wilfulness is not alleged then the statement of charge is defective and does not arguably give rise to an offence. The consequence of this is that the defendant does not have to answer to such a defective charge. 3. However, in that case, having proceeded to a final hearing without taking what her Honour described as the "pleading point", the Commissioner had forfeited the right to challenge the formulation of the charge. Nevertheless, there could be no prejudice to the Commissioner by the absence of a pleading of wilfulness because the charge would not succeed unless wilfulness was proved.
22. Returning to Mosman Municipal Council, in that case the defendant had submitted that he was not guilty of contempt because the proceeding was for criminal contempt for disobeying a court order, which could only be made out if the disobedience was contumacious and the statement of charge was defective because it did not allege that the disobedience was contumacious. After considering the authorities, Biscoe J concluded: "64 For these reasons, in my opinion, this is a civil contempt. Therefore, the criminal contempt premise of the respondent's argument that the statement of charge is defective because it does not allege contumacious disobedience is not established."
23. His Honour went on ("furthermore" at [65] and following) to develop and express his view that contumacy was only relevant to penalty and not to whether a contempt had been committed. Given his Honour's conclusion in [64], his Honour's discussion and conclusion that contumacy was only relevant to penalty are obiter dicta. In addition, while I am not bound by his Honour's conclusion on the point even if it was part of the ratio decidendi, because I do not share it, I will briefly explain the basis of my disagreement.
24. Put shortly, I respectfully disagree with Biscoe J for three reasons: 1. I am unable to accept the starting point of his Honour's reasoning, being at [71]: "as contempt is simply disobedience to a court order, the contemnor's state of mind, in particular whether the disobedience was contumacious, in my opinion, is irrelevant to whether there was a contempt." I respectfully prefer the view expressed by Simpson J in Markisic at [33] and [40] (quoted in [124] and [125] above) that even simple disobedience of a court order does, for the purposes of the law of contempt, involve a mental element being wilfulness, as opposed to disobedience which is "casual, or accidental or unintentional" (see, for example, Australasian Meat Industry Employees' Union, v Mudginberri Station Pty Ltd 161 CLR 98; [1986] HCA 46 at 113 per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ). 2. In the course of dismissing an appeal from Simpson J's decision, the Court of Appeal also accepted that there is a mental element involved in contempt of court irrespective of whether the contempt is classified as civil or criminal (Markisic v Commonwealth of Australia (2006) 69 NSWLR 737; [2007] NSWCA 92 at 749 per Campbell JA (with whom Handley AJA and Bell J agreed). I do not agree that Markisic on appeal can be read down to refer only to punishable contempt in the way his Honour seeks to do at [82] in Mosman Municipal Council. 3. His Honour concluded at [84] that the "weight of authority" which he discusses at [74] to [81] "indicates that contumacy is only relevant to penalty and it is difficult to construe the statement of charge rule as requiring a statement of matters going only to penalty". My disagreement with this aspect of his Honour's conclusion is that while it is correct that the authorities to which his Honour refers all speak to the role of contumacy in relation to penalty, it does not follow that they are authority for the proposition that contumacy is not an essential element for a finding of criminal contempt at the liability stage of proceedings (whether particularised or not). It should be recalled again that Mosman Municipal Council is not a case about the consequences of something that had been pleaded, but rather about the alleged consequences of the element of contumacy not having been pleaded. For that reason, it is also removed from the present case, notwithstanding Mr Barham's reliance on Mosman Municipal Council in support of his proposition that procedural fairness being afforded to the defendants by the express particularisation of contumacy did not exclude the possibility of them being found guilty of civil (non-contumacious) contempt.

Conclusion

1. The Court is satisfied beyond reasonable doubt that some of the undertakings were breached deliberately (see [77], [78] and [82] above), that is to say with the requisite element of wilfulness, and as something more than casual, accidental or unintentional. However, as the Court of Appeal observed in Hayden, proceedings such as these must be approached "with strictness and with proper respect for the rights of the person charged" (see [125] above). In the case at bar, the statements of charge expressly particularise the alleged breaches as being contumacious. Those, and only those, are the charges which the defendants were required to defend. Mr Novelly has failed to establish beyond reasonable doubt that the alleged breaches were contumacious. It would be a serious breach of procedural fairness to permit Mr Novelly, notwithstanding the express particularisation of contumacious conduct, to succeed on the basis of having only established civil contempts.
2. Mr Novelly's application will therefore be dismissed. Subject to any further application by any party, costs should follow the event. The orders of the Court are: 1. The further amended notice of motion is dismissed. 2. The plaintiff is to pay the defendants' costs of the contempt application. 3. Any party seeking an order for costs other than that set out in Order 2 should notify the Associate to Kunc J of the orders sought on or before 13 September 2023 so that directions can be made in chambers for the determination of that application.

Schedule A (92511, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2023