Cohen v Double Bay Bowling Club [2019] NSWSC 1625

Cohen v Double Bay Bowling Club [2019] NSWSC 1625

The undertaking was clear and included any works in the nature of excavation, such as the removal of spoil or digging to create hollows lowering the ground. On the facts, contempt charges against the first defendant (Club) failed due to lack of evidence of arranging the works on the alleged days and inadequate particularisation. The second defendant (Builder), through its contractor, carried out works in breach of the undertaking but the breaches were not proven to be contumacious; thus, criminal contempt was not established. The contempt proceedings were not shown to be an abuse of process.

Jurisdiction
Australia
Judgment Date
22 November 2019
Procedural Posture
Principal Judgment / Final Decision on Contempt and Abuse of Process Motions After Hearing
Outcome
Contempt charges against the Club dismissed; Builder not guilty of criminal contempt; abuse of process motion dismissed.
Legal Topics
['criminal Contempt' 'breach of Undertaking' 'construction of Undertakings' 'abuse of Process' 'civil Procedure – Stay of Proceedings']
['equity' 'civil Procedure' 'contempt of Court' 'technology and Construction'] ['criminal Contempt' 'breach of Undertaking' 'construction of Undertakings' 'abuse of Process' 'civil Procedure – Stay of Proceedings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Principal Judgment / Final Decision on Contempt and Abuse of Process Motions After Hearing

Legal Issues

  1. 1 ["Whether the first and second defendants breached a court undertaking not to recommence 'works in the nature of excavation'" "Whether the term 'excavation' includes removal of previously excavated material (spoil)" 'Whether the contempt charges against the first defendant are properly particularised and proven' "Whether second defendant's works were contumacious to sustain criminal contempt" "Whether plaintiffs' contempt proceedings are an abuse of process"]

Ratio Decidendi

The undertaking was clear and included any works in the nature of excavation, such as the removal of spoil or digging to create hollows lowering the ground. On the facts, contempt charges against the first defendant (Club) failed due to lack of evidence of arranging the works on the alleged days and inadequate particularisation. The second defendant (Builder), through its contractor, carried out works in breach of the undertaking but the breaches were not proven to be contumacious; thus, criminal contempt was not established. The contempt proceedings were not shown to be an abuse of process.

Court Disposition

Contempt charges against the Club dismissed; Builder not guilty of criminal contempt; abuse of process motion dismissed.

Orders

  • ['Contempt charges against the first defendant (Club) dismissed.' 'Builder (second defendant) found not guilty of committing criminal contempt.' "Club's abuse of process notice of motion dismissed." 'Orders on costs deferred pending further submissions by 29 November 2019.']