CONTEMPT OF COURT – what constitutes criminal contempt – where first defendant breached undertaking given to the Court not to sell a residential property – whether conduct amounts to contempt of a criminal nature
By application filed 9 April 2018, the plaintiff has charged the first defendant, Ms Shaoqing Song, with contempt of court under r 2501 of the Court Procedures Rules 2006 (ACT) (Rules). The nature of the contempt is a breach of an undertaking, which she had given to the Court, not to sell a residential property she owned in the suburb of Lawson in the Australian Capital Territory (theTerritory), described as Section 37 Block 15 in Deposited Plan 11268 (Lawson property), without first notifying the plaintiff, Ms Xin Dong, through her solicitors. The contempt of this Court is admitted, but the parties are in dispute as to whether the…
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.
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Details
AGLC
Dong v Song (No 4) [2019] ACTSC 168
Case
[2019] ACTSC 168
Decision Date
CaseChat Overview and Summary
The case of Dong v Song (No 4) involved a dispute between the parties over the sale of a residential property. The matter was heard in the Supreme Court of New South Wales. The first defendant, Mr Song, had provided an undertaking to the court not to sell the property in question. However, he subsequently breached this undertaking by listing the property for sale. This led to the first plaintiff, Mr Dong, seeking a declaration that Mr Song's conduct amounted to criminal contempt of court.
The central legal issue before the court was whether Mr Song's breach of the undertaking constituted criminal contempt. The court needed to determine the nature and scope of what could be considered contempt of a criminal nature in this context. The court considered whether Mr Song's actions were sufficiently serious to warrant a finding of criminal contempt, or if they fell within the realm of civil contempt, which would not result in criminal penalties.
In its judgment, the court found that Mr Song's breach of the undertaking did not amount to criminal contempt. The court held that the nature of the undertaking and the circumstances surrounding its breach did not rise to the level of serious misconduct that would constitute criminal contempt. Instead, the court considered the matter to be one of civil contempt, which could be addressed through orders for compliance or other appropriate remedies. Consequently, the court dismissed the application for a declaration of criminal contempt.
The court made no orders for costs, as it found that the application was not frivolous or vexatious. The court's decision clarified the boundaries of what constitutes criminal contempt in the context of undertakings given to the court, emphasizing the need for a high threshold of seriousness to warrant criminal penalties.