CBA v Salvato [2013] NSWSC 321

The lender asked the Court to find the borrower guilty of contempt of court for breaching an undertaking vacate the security premises.

The borrower argued he did vacate the premises, however he left his wife and children in the house (and occasionally visited them). He argued he was not in contempt because the undertaking was ambiguous; alternatively that he had in fact complied with it because he no longer lived at the premises; alternatively, that if he had not complied with it, it was unintentional because he thought that he had.

The judge found the borrower guilty of contempt, holding that “vacating a property means something which is a permanent state of affairs”, and that despite sleeping elsewhere, the borrower remained in possession of the property because his wife and children lived there with his permission, their furniture and household effects remained there and some of his own personal effects remained there.

The judge found that the borrower’s acts and omissions were deliberate and intentional, and the issue of whether he believed he had complied with the undertaking was not relevant, as intention to commit a contempt is not required to be proven according to the authorities.

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