Westpac v Leith Gordon Bagshaw [1999] NSWSC 479 (19 May 1999)

Last Updated: 21 May 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Westpac v Leith Gordon Bagshaw [1999] NSWSC 479

CURRENT JURISDICTION:

FILE NUMBER(S): 11751/94

HEARING DATE{S): 12/5/99-19/5/99

JUDGMENT DATE: 19/05/1999

PARTIES:

Westpac Banking Corporation

Leith Gordon Bagshaw

JUDGMENT OF:

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Plaintiff: Mr Lo Surdo

Defendant: Mr Young

SOLICITORS:

Plaintiff: Henry Davis York

Defendant: -

CATCHWORDS:

costs

ACTS CITED:

DECISION:

Plaintiff pay costs of proceedings

JUDGMENT:

- 6 -

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DOWD J

WEDNESDAY, 19 MAY 1999

011751/94

WESTPAC v LEITH GORDON BAGSHAW AND ANOR

REASONS FOR JUDGMENT

1 In these contempt proceedings I made a finding on 17 May 1999 that the contemnor, Leith Gordon Bagshaw was guilty of contempt. On Monday I had had submissions from the parties as to the manner in which the court should deal with the contemnor.

2 The court is in the difficulty that the contemnor is an undischarged bankrupt who, although having initiated proceedings to set aside that discharge and having threatened those proceedings for sometime, still remains an undischarged bankrupt. He has given evidence before me that he is in a position to obtain some funds for the purpose of complying with any financial order which the court may make.

3 This is a matter where I have found the contempt to be wilful but have taken into account that the contemnor did not understand the serious consequences of failing to comply with this court's orders, notwithstanding that he was quite well aware of what he was doing.

4 This would in the normal course be a matter for the imposition of a fine of some considerable magnitude, but the court ought not make orders which are not likely to be complied with and are effectively impractical.

5 I have indicated to the parties that it is appropriate that a costs order be made and the size of that order will of itself in the nature of the circumstances of the contemnor be a very substantial penalty.

6 I have indicated that notwithstanding that I do not think the imposition of a fine in the circumstances is appropriate.

7 I have been addressed on this matter by both counsel. I nonetheless think that the contempt needs to be purged. I therefore propose in making an order as to costs of the proceedings to make an order restricting the contemnor from further proceeding with the defences upon which he relies and the cross action in the proceedings until the costs order is paid and the contempt is thereby purged. This of course does not preclude the other defendant from continuing with the defences which she has relied on.

8 I turn then to the difficult question of quantum in terms of an order for costs. It seems to me that the court with some reluctance taking on the role of a taxing officer should assess an amount of the costs. There is no question in my mind that a costs order should be made. Costs incurred for legal expenses may well be recoverable in any event as a debt due under the mortgage.

9 The premises the subject of the mortgage are still occupied by the contemnor and his wife and the value of that property is considerably less than the amount owing under the mortgage, that debt now being calculated in excess of a million dollars.

10 I have had admitted in evidence accounts from not only the solicitors but counsel appearing in the proceedings. The court is placed in an awkward position in dealing with these matters, particularly where the court is faced with hourly charging rates which of themselves are indeed quite proper and indeed modest, but where the court is unable to assess the reasonableness of the amount of time spent.

11 Exhibit F sets out an indication by calculation of certain times spent. The problem arises that litigants waiting around outside the court have fees being incurred at an hourly rate which very quickly builds up to a very substantial sum.

12 In terms of counsel's fees there is no question that this is a very difficult matter and the extent and quality of the submissions written and otherwise on the part of the counsel for the plaintiff have been well and ably prepared and that there is obviously a large amount of time being spent. However, to look at one item on 17 September 1998, reviewing affidavits filed by the defendants to determine whether any further subpoenas should be served, four and a half hours and advice as to further evidence, which is another two and a half hours, seven hours on a matter such as this is clearly inappropriate and, one would have thought, a matter that could have been dealt with in an hour at the maximum.

13 I do not in making this order intend to reflect on the worth of counsel or solicitors for the time spent, and certainly not on the quality of the work, but I am merely reflecting the inability of the court in making an order to make a proper assessment of the time taken.

14 I order that the contemnor pay the costs of this motion and in that I confirm and include the order made by me on Wednesday, the 12th last as to costs awarded on 12 May 1999.

15 I assess costs including disbursements at $20,000.

16 In relation to the contempt itself I do not propose, as I have indicated, to fine or imprison the contemnor. However, I consider it appropriate that an order be made that the contemnor purge his contempt by an order that he be precluded from relying on the defence or any pleading filed on his behalf, including the cross action, until his contempt shall have been purged by the payment of costs.

17 I therefore order that the contempt herein of Leith Gordon Bagshaw, for that contempt, the contemnor is admonished by the court for the very serious action which he took for contacting witnesses knowing very well that the effect therein would be to inhibit those witnesses in carrying out their duties as officers of a bank or as witnesses in the proceedings. That contempt will be purged by the payment in full of the order for costs that has been made. The contemnor having indicated that he is able to obtain some funds to make that payment I take that into account, but in any event order that the costs be paid within three months from today.

18 I do not propose to restrain the plaintiff herein from proceeding by way of formal order, but I indicate in the circumstances that the court would consider it inappropriate for the plaintiff to take further proceedings in the court during that period of three months, except of course as may be necessary in respect of any action to protect the security of the mortgage or in respect of any action which may be initiated by the contemnor.

19 I note that the order which I have made precluding the contemnor from taking any further part in relation to the pleadings filed does not of course preclude him from making application to this court in respect of any issue that may arise incidental to and in relation to these proceedings for contempt.

20 The formal orders that I make are as follows:

1. The contemnor is found guilty of contempt of this court for failing to comply with order 3 made by the Hnourable Simpson J on 1 April 1997, as extended by the honourable Bruce J on 7 April 1997, and the operation of which was continued by order of the honourable James J on 30 June 1997, in that the contemnor did communicate in writing with two of the persons identified in the schedule to the order, namely Charles James Fletcher Perry and Judith Anne Hermanson, and did in fact physically approach another person so named, Stephen Neil Gurney.

2. I order that the contemnor be admonished.

3. I further order that the contemnor pay the plaintiff's costs of and incidental to these proceedings in the sum of $20,000, such costs to be paid three months from today.

4. I further order that in payment of those costs the contemnor shall be deemed to have purged himself of his contempt.

5. I further order that in the meantime until that contempt is purged the contemnor may not take any further action in relation to his defence of the proceedings commenced by the bank by statement of claim issued 21 July 1994 and that the cross-claim filed by him in the proceedings be stayed.

6. Those orders do not preclude any action being taken in relation to the proceedings for contempt or of course any appeal that may be taken in relation there to on the part of the contemnor.

7. I grant liberty to apply to me in relation to the matter on three day's notice, or in the event of my unavailability liberty to apply to the duty judge on seven day's notice.

oOo

LAST UPDATED: 21/05/1999