AG v MJG[2011] QDC 186

HIS HONOUR: This is an application proposed to be heard without an oral hearing pursuant to Rule 489. I'll ask that the name of the respondent, who's been given notice the court will deal with the matter today, be called outside the court, in case he has turned up.

BAILIFF: No appearance, your Honour.

HIS HONOUR: Thank you. There is no appearance for the respondent. He has been served with the application, according to the affidavit of Mr de Courcey, filed on the 5th of August 2011, and was served at Aitkenvale in the Townsville area on the 28th of July 2011 in the afternoon. It's perhaps unsurprising that he's not here.

The applicant, now resides in another State with the son of the parties, who were formerly in a de facto relationship. Her circumstances include ones of financial stringency, which is put forward as justification for an oral hearing being avoided.

The respondent has done nothing in response to the application and the particular endorsement on it which invites him to take steps if he wishes to contend there ought to be an oral hearing or to put anything before the court.

It's appropriate in the circumstances for the court to do what it can to deal with the application on the basis proposed.

It is a most unusual one in including, in paragraph 2, an application pursuant to section 129 of the District Court of Queensland Act 1967 and "Rule 929" that the respondent be punished for contempt constituted by his failure to comply with orders of the court made on 7 February 2011. The relevant order of Judge Jones is document 9 on the court file.

Inquiries to date have not produced any answer to my inquiring whether the respondent played any part in events leading up to his Honour's order. The endorsement "order as per draft initialled by his Honour and placed with the papers" on the court's order file does not, as such endorsements ordinarily would, indicate whether there were any and, if so, what, appearances. Nor does the order do that. It was made in the context of the underlying originating application in which the applicant seeks distribution of the parties' property pursuant to part 19 of the Property Law Act 1974.

As a preliminary to resolution of the issues involved in that the orders of 7 February 2011 were made. They required the parties to do all that was necessary to achieve a sale of the parties' jointly owned townhouse in Cannonvale. The order was a lengthy one providing detailed steps and conditions in relation to the sale and also steps calculated to advance the originating application towards final resolution.

The present application, filed on the 26th of July 2011, over and above matters to do with getting the townhouse sold and having the respondent dealt with for contempt, if that is possible, seeks costs which, by section 341 of the Act, are not ordinarily payable except in special cases of which this is asserted to be one.

What's now sought in relation to the sale is that the applicant be appointed trustee for sale. Although the material before the court is silent about it, I take it that that relies on the possibilities generated by section 38 of the Act.

So far as the contempt aspect is concerned, it's based on the asserted failure of the respondent to do any of the things he was required to under the orders of 7th of February 2011, including to play his part in the parties' "equally" paying all outgoings in respect to the property. The written submissions acknowledge that the order of the 7th of February 2011 does not have endorsed on it the statement required by Rule 665(3) as to the consequences of default. The traditional approach, of course, is that if a person is to be dealt with for contempt that endorsement must be there.

The submission correctly notes that in Costello v Courtney [2000] QSC 067 at paragraph [12] Margaret Wilson J contemplated that a court might be entitled to hear a contempt application notwithstanding the absence of that statement. Her Honour did not have occasion to proceed on that basis but rather proceeded on the basis of dissatisfaction with what the applicant could show in respect of service of the order said to have been breached, personal service of which is required under Rule 904, and her Honour was also not prepared to proceed unless it was shown that there'd been personal service of the notification of a new hearing date. Rule 926(3) is clear that there must be personal service of the relevant application, which Mr de Courcey has, it seems, effected here.

I'm not prepared to deal with the contempt aspect of the application. One of the reasons is that I'm doubtful that it would be appropriate to deal with someone for contempt for failure to make payments in the absence of evidence, of which there is none here, to show that the person had an ability to make the payments.

I also have concerns as to whether the application is sufficiently "specifying the alleged contempt" for the purposes of Rule 926(1) given that it simply refers to failing to comply with "the orders of the court made on 7 February 2011," which run to 28 paragraphs. In my view, more specificity is sought. The possibility is there, for example, that the respondent is being charged with failure to inspect documents within 42 days of the order, as required by paragraph 20, which would hardly be a concerning instance of contempt.

So far as what I understand as the section 38 aspect of the application is concerned, I'm prepared to accede to that. An unusual feature is that the applicant is nominated as the trustee for sale. The outline of submissions identifies a precedent for such an arrangement, DVN v J [2008] QDC 12. I'm satisfied that such an order is appropriate just as in appropriate circumstances a party may be appointed to similar roles such as receiver of property.

I have misgivings about the appropriateness of the arrangements proposed for the sale in the draft order or, more correctly, in the application, no draft order having been supplied for all that appears, as one should've been pursuant to Rule 490(1)(b). However, there's no advocate here to discuss matters with and the court is left to make the order "warts and all." The respondent as noted has had nothing to say about what's proposed.

I do not think the court ought to make the proposed order 12 which requires the respondent to pay all outgoings pending completion of the sale. That's inconsistent with the order of 7th of February 2011.

A number of new elements are introduced such as liberty to the applicant to let the property pending sale, which seems appropriate now that on the evidence the respondent is no longer in the property; there are revised arrangements for the holding of the balance purchase price once the sale is effected.

I think it ought to be specified in the order, perhaps in a substitute paragraph 2 of the proposed orders set out in the application (which dealt with contempt), that this order supplants the arrangements directed in the court's order of 7 February 2011, paragraphs 3 to 17 inclusive; otherwise the 7 February 2011 orders will stand.

In the circumstances as described by the applicant's evidence it's appropriate to make the costs order sought.

Paragraph 17 seeks an order "that the matter be set down for trial." I don't see how that can sensibly be done without some assistance of the parties and some attempt to follow the ordinary procedures of a request for trial date ideally signed by both parties. There'll be no order in terms of paragraph 17 except that in lieu thereof there ought to be liberty to apply.

As indicated, paragraph 12, fixing the respondent with liability for outgoings, is struck out of the list of orders proposed as found in the application.

Orders in terms of paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14, 15, and 16 of the application, with the following paragraph 2: "This order supplants the arrangements directed in the court's order of 7 February 2011, paragraphs 3 to 17 inclusive."

There will also be liberty to apply at the end and an order adjourning the application to a date to be fixed.

The reason for nothing being said about paragraph 13 is that in the application it's incomplete and appears to be repeated in the intended full form in paragraph 15.