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  • Unreported Judgment

Kapitsalas v Apostolakis

 

[2008] QSC 252

 

SUPREME COURT OF QUEENSLAND

 

CIVIL JURISDICTION

 

FRYBERG J 

 

No 1741 of 2008

 

NICHOLAS KAPITSALAS

and

THOMAS EDWARD APOSTOLAKIS

Plaintiff

 

Defendant

   
No 7670 of 2008  

TIMOTHY JOHN HENDERSON

And

JASON DOMINIC DAWSON

and

THOMAS EDWARD APOSTOLAKIS

Applicant

 

Applicant

 

Respondent

 

BRISBANE 

 

..DATE 02/10/2008

 

ORDER


HIS HONOUR:  This is an application by a judgment creditor for an order that the judgment debtor be held in contempt of Court and punished in accordance with r 930 of the Uniform Civil Procedure Rules for failing to supply a statement of financial position as required under an enforcement hearing summons issued on the 15th of April this year.  The evidence satisfies me that the debtor did fail to do what he was required to do by the summons.  He failed to attend and he failed to bring documents to the hearing.  A warrant for his arrest has been issued, which is presently in the Registry.

 

The material satisfies me, but for one matter, that the debtor is guilty of contempt of Court and it satisfies me of that beyond reasonable doubt.  Indeed as I understand things, the debtor (who was unrepresented) was prepared to make admissions to that affect following discussions today with the legal representatives of the judgment creditor.

 

In the course of hearing submissions from the judgment debtor regarding penalty, mention was made of a deed into which the parties entered after the commencement of the contempt proceedings.  That deed is Exhibit TJH9 to the affidavit of Mr Henderson filed on the 5th of September.  By cl 1 of the deed the debtor agrees to pay certain sums to the creditor, but no time is set for the payment. 

 

Under subsequent clauses the terms of agreement are set out and it is apparent that the debtor is obliged to try to sell up property and that the proceeds will be used to effect at least part payment.  On page 4 of the deed a charge is given by the debtor over all freehold and leasehold land in which he has any or may acquire any interest. 

 

By cl 17 on page 5 of the deed, in consideration of the debtor paying the creditor the settlement money referred to in

para 1, the creditor releases and discharges the debtor from all claims which he has or which but for the deed he could, would or might at anytime have thereafter have or previously have had against the debtor arising out of the dispute and proceedings.  A reciprocal agreement is made by the debtor in respect of the creditor.

 

It seems to me that while the deed remains on foot, that clause presents an insurmountable obstacle to the creditor's bringing on the proceedings for contempt of Court.  The creditor accepts that the contempt proceedings answer the description of a claim which the creditor has against the debtor arising out of the dispute and proceedings.  He submits that the wording of the clause is such that the agreement is executory not executed and that consequently the accord is an executory accord and not an accord and satisfaction.  The consequence of that in turn, it is submitted, is that the right to proceed on the contempt proceedings is not extinguished by cl 17.  To that point I accept the creditor's submission.

 

The creditor further submits that the fact that the contempt proceedings remain alive means that he may at any time proceed to bring them on and to proceed to get the orders, including imprisonment (though in fact when the matter came on he sought only a fine) which would be open on those proceedings.  It seems to me that to do that would be to disable himself from performing his obligation under cl 17 in the event that the debtor performed his obligation under cl 1 and paid the settlement money.

 

The creditor does not submit that the time which has elapsed is such as to constitute an unreasonable time with the result that the debtor is in breach of cl 1 by reason of failing to pay the money within an implied reasonable time, but does submit that the debtor is, on the evidence, in breach of a number of other clauses of the deed and in particular cl 15.  Again, on the uncontradicted evidence, I am prepared to accept that that is so.

 

That means that under cl 16 the creditor may proceed with the enforcement hearing, the enforcement warrant and any other necessary steps to recover the money owed under any judgment without terminating the deed.  That right is given under the deed.  But the creditor concedes that cl 16 does not cover bringing on the proceedings for contempt of court. 

 

In my judgment proceeding with the contempt proceedings today would put the creditor in a position where he would not be able to perform his obligation under cl 17 and I do not think that he can do that without first terminating the deed.

 

That the creditor does not wish to do for the very understandable reason that it is the deed which confers on him a security interest and in a climate where a bankruptcy seems a distinct possibility, he does not wish to give up those rights. 

 

It might be that since the deed remains executory this would be a sufficient basis for me merely to refuse to make an order today without dismissing the contempt proceedings.  They have not been extinguished so far and there is, on my reasoning today, no particular reason why they ought to be dismissed today.  However, it seems that in the events which have happened or are envisaged, the creditor sees no point in their being allowed to stand any further and I am asked in those circumstances to proceed to dismiss them rather than simply adjourn to a date to be fixed.  I am prepared, on the creditor's request, to do so. 

 

For those reasons, the order of the Court will be that the application is dismissed. 

 

...

 

HIS HONOUR:  In the other matter, Henderson -v- Apostolakis, proceedings number 7670 of 2008, by consent the application is dismissed with costs to be assessed.

 

...

 

HIS HONOUR:  By consent, extend the order of Justice Applegarth made on 26th September 2008 to 5 p.m. on 7th October 2008.

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Editorial Notes

  • Published Case Name:

    Kapitsalas v Apostolakis; Henderson & Anor v Apostolakis

  • Shortened Case Name:

    Kapitsalas v Apostolakis

  • MNC:

    [2008] QSC 252

  • Court:

    QSC

  • Judge(s):

    Fryberg J

  • Date:

    02 Oct 2008

Litigation History

No Litigation History

Appeal Status

No Status