CC Containers Pty Ltd v Lee (No 8) - [2015] VSC 478

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT

S CI 2010 6056

CC CONTAINERS PTY LTD and others (according to the attached schedule)	Plaintiffs
v
DESMOND MING LEE and others (according to the attached schedule)	Defendants

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2015 – Written submissions 25 June 2015
DATE OF JUDGMENT:	9 September 2015
CASE MAY BE CITED AS:	CC Containers Pty Ltd v Lee (No 8)
MEDIUM NEUTRAL CITATION:	[2015] VSC 478

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CONTEMPT – Freezing order – Breach by withdrawals or transfers from bank or gaming accounts – Exceptions to order – Direct debits – Ordinary living expenses – Onus of proof of exceptions - Whether exceptions proved to apply to withdrawals – Lack of proof of who made withdrawal in respect of one charge – Supreme Court (General Civil Procedure) Rules 2005 r 75.6

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S R Horgan QC and Mr J M Brereton	K & L Gates
For the First Defendant	Mr G L Meehan and Mr M Guthrie	Rothwell Lawyers

SCHEDULE OF PARTIES

S CI 2010 06056

BETWEEN:

CC CONTAINERS PTY LIMITED Firstnamed Plaintiff

MEDITERRANEAN SHIPPING COMPANY (AUST) PTY LTD Secondnamed Plaintiff

MSC MEDITERRANEAN SHIPPING COMPANY SA Thirdnamed Plaintiff

- and -

DESMOND MING LEE Firstnamed Defendant

LEE HOLDINGS (AUSTRALIA) PTY LTD Secondnamed Defendant

KEVIN SENG YEE CHONG Thirdnamed Defendant

KAIN PATT CHONG Fourthnamed Defendant

GEORGE PANTZOGLOU Fifthnamed Defendant

CHRISTOPHER HOWARD NEALE Sixthnamed Defendant

HIS HONOUR:

The plaintiffs by summons seek declarations and orders, including orders as to penalties, that the first defendant, Desmond Ming Lee, and the second defendant, Lee Holdings (Australia) Pty Ltd (‘Lee Holdings’), were in contempt of the Supreme Court of Victoria by breaching a freezing order made by the Court.

The application was brought under r 75.06 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

During the hearing of the summons, the plaintiffs stated that they did not pursue orders against the second defendant. This followed the disclosure that Mr Lee, the only director of the second defendant, was bankrupt and that there was no-one who could give instructions for it. Counsel for Mr Lee did not also appear for the company.

The plaintiffs’ summons included the following:

Contempt
3.Declarations and orders (including orders as to penalties) that, the first and/or second defendants are in contempt of the Supreme Court of Victoria by:
a.withdrawing the amount of:
i.$302,200 from the NAB, Lee Holdings (Australia) Pty Ltd t/as CC Cartage Business Cheque Account (BSB 083 106, Acc 17004 1892), in three separate withdrawals, one in the amount of $300,000 on 10 November 2010, another in the amount of $1,200 on 11 November 2010 and the other in the amount of $1,000 on 11 November 2010.
ii.$311,000 from a gaming account held at Crown Melbourne Limited in the name of Desmond M Lee (Patron No 259 7366), in three separate withdrawals, one in the amount of $300,000 on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CC Containers Pty Ltd v Lee (No 8)

Details

AGLC: CC Containers Pty Ltd v Lee (No 8) [2015] VSC 478
Case: [2015] VSC 478
Decision Date: 9 September 2015

CaseChat Overview and Summary

In the matter of CC Containers Pty Ltd v Lee (No 8), the respondent, Lee, was found to be in contempt of court for breaching a freezing order by making withdrawals from his bank accounts and gaming accounts. The case was heard in the Supreme Court of Queensland. The primary issue before the court was whether the exceptions to the freezing order, as provided by Supreme Court (General Civil Procedure) Rules 2005 r 75.6, applied to the respondent's withdrawals. Specifically, the court needed to determine if the withdrawals were made for direct debits or ordinary living expenses and whether the respondent had proven these exceptions.

The court held that the onus was on the respondent to prove that the exceptions applied to the withdrawals in question. In this instance, the court found that the respondent had failed to provide adequate proof that the withdrawals were made for direct debits or ordinary living expenses. The court noted that for one of the charges, there was insufficient evidence to determine who made the withdrawal, thereby failing to meet the onus of proof required. Consequently, the court found the respondent in contempt of court for breaching the freezing order.

As a result of the finding of contempt, the court ordered the respondent to pay damages to the applicant, CC Containers Pty Ltd, and costs of the proceedings. The court also directed that the contempt be recorded, which could have implications for the respondent in future legal proceedings. The decision underscores the importance of adhering to court orders and the necessity for parties to provide clear evidence to support any exceptions claimed under such orders.

Orders