Duhs v Pettett (No 2) - [2009] QSC 400

SUPREME COURT OF QUEENSLAND

CITATION:

Duhs v Pettett & Ors (No 2) [2009] QSC 400

PARTIES:

DUHS, Wilfred Henry
(plaintiff)

v

PETTETT, Trevor
(first defendant)

KEA-WATT & ASSOCIATES PTY LTD ACN 100 005 137
(second defendant)

RATHDOWNEY DEVELOPMENTS PTY LTD
ACN 115 908 137
(third defendant)

FILE NO/S:

BS 12147 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

7 December 2009

JUDGE:

McMurdo J

ORDER:

It is proved that Mr Pettett:

(a) was and remains in contempt of para 8.2 of the order of 16 July 2009, in that he has not sworn and served on the plaintiff’s solicitors an affidavit disclosing full details of the facts and matters within his knowledge and/or information concerning the disbursement, location and whereabouts of the plaintiff’s monies in the sum of $2,700,000 as deposited to Suncorp-Metway Limited account number 330021210;

(b) was in contempt of para 8.1 of that order in that he failed to inform the plaintiff’s solicitors of an asset constituted by the credit balance in Heritage Building Society account number 10041877 on or before 28 July 2009.

CATCHWORDS:

PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – WHAT CONSTITUTES – DISOBEDIENCE OF ORDERS OF COURT – ORDERS RELATING TO DOCUMENTS – where the Court had ordered that the first defendant inform the plaintiff of “all of the assets of the Defendant in Australia and elsewhere” – where the Court had ordered that the first defendant swear an affidavit disclosing all information on the “disbursement, location and whereabouts of the Plaintiff’s monies” – where the first defendant swore such an affidavit but it was untrue – whether the first defendant is in contempt

Duhs v Pettett [2009] QSC 100, cited
Kennon v Spry (2008) 238 CLR 366, applied

COUNSEL:

D R Cooper SC, with L J Nevison, for the plaintiff
D C Gration for the first defendant

SOLICITORS:

Ferguson Cannon for the plaintiff
Lillas & Loel for the first defendant

The plaintiff, Mr Duhs, applies to have the first defendant, Mr Pettett, punished for contempt. The case is that Mr Pettett failed to comply with orders made by White J in these proceedings on 16 July 2009. Before going to those orders, and Mr Pettett’s response to them, it is necessary to summarise the preceding events.

Mr Duhs paid two amounts totalling $2,700,000 to Mr Pettett. He paid $2,000,000 on 2 September 2004 by a cheque payable to “Kea-Watt & Associates Trust Account” and the balance by a cheque on 14 January 2005. The terms upon which these payments were made have not been established within these proceedings or otherwise. Yet as I will discuss, a final judgment has been entered in favour of Mr Duhs against Mr Pettett in that sum of $2,700,000.

On any view however, the payments were made so that Mr Pettett could make some investment on behalf of Mr Duhs. When his money was not returned as he believed…

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 Duhs v Pettett (No 2)

Details

AGLC: Duhs v Pettett (No 2) [2009] QSC 400
Case: [2009] QSC 400
Decision Date: 11 December 2009

CaseChat Overview and Summary

In the matter of Duhs v Pettett (No 2), the court was presented with an issue concerning the contempt of court by the first defendant, Mr Pettett. The plaintiff, Mr Duhs, sought to enforce orders made by the Court regarding the disclosure of assets and the location of certain funds. The dispute centred around the first defendant's failure to comply with specific court orders, which mandated the disclosure of all assets and the whereabouts of the plaintiff’s funds. The case was heard in a court that had jurisdiction over the matter, given the orders that were made and needed enforcement.

The legal issues the court needed to address were whether the first defendant's actions constituted contempt of court and if the orders made by the court were properly complied with. Specifically, the court had to determine if the first defendant's failure to provide an accurate affidavit and to disclose an asset constituted contempt. The first defendant had sworn an affidavit but it was found to be untruthful, raising questions about the reliability and truthfulness of his statements under oath. Additionally, the failure to disclose an asset as ordered further complicated the matter.

The court found that the first defendant was indeed in contempt of the orders made by the court. The first defendant did not fulfil his obligations under paragraph 8.2 by not providing a truthful affidavit concerning the disbursement, location, and whereabouts of the plaintiff's funds. Furthermore, the failure to inform the plaintiff of an asset as ordered in paragraph 8.1 constituted additional contempt. The court held that these actions were a clear disobedience of the court's orders, warranting a finding of contempt.

The court concluded that it was proved that Mr Pettett was in contempt of the specified orders. The orders included the requirement for him to swear an affidavit disclosing all information on the disbursement, location, and whereabouts of the plaintiff's funds, and to inform the plaintiff of all assets. Given that he failed to comply with these obligations, the court found him in contempt of both paragraphs of the order. The court's decision highlighted the importance of adhering to court orders and the consequences of failing to do so.

Orders

Orders of the court

It is proved that Mr Pettett:

(a) was and remains in contempt of para 8.2 of the order of 16 July 2009, in that he has not sworn and served on the plaintiff’s solicitors an affidavit disclosing full details of the facts and matters within his knowledge and/or information concerning the disbursement, location and whereabouts of the plaintiff’s monies in the sum of $2,700,000 as deposited to Suncorp-Metway Limited account number 330021210;

(b) was in contempt of para 8.1 of that order in that he failed to inform the plaintiff’s solicitors of an asset constituted by the credit balance in Heritage Building Society account number 10041877 on or before 28 July 2009.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Duhs v Pettett & Ors (No 2) [2009] QSC 400
PARTIES:	DUHS, Wilfred Henry (plaintiff) v PETTETT, Trevor (first defendant) KEA-WATT & ASSOCIATES PTY LTD ACN 100 005 137 (second defendant) RATHDOWNEY DEVELOPMENTS PTY LTD ACN 115 908 137 (third defendant)
FILE NO/S:	BS 12147 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	7 December 2009
JUDGE:	McMurdo J
ORDER:	It is proved that Mr Pettett: (a) was and remains in contempt of para 8.2 of the order of 16 July 2009, in that he has not sworn and served on the plaintiff’s solicitors an affidavit disclosing full details of the facts and matters within his knowledge and/or information concerning the disbursement, location and whereabouts of the plaintiff’s monies in the sum of $2,700,000 as deposited to Suncorp-Metway Limited account number 330021210; (b) was in contempt of para 8.1 of that order in that he failed to inform the plaintiff’s solicitors of an asset constituted by the credit balance in Heritage Building Society account number 10041877 on or before 28 July 2009.
CATCHWORDS:	PROCEDURE – CONTEMPT, ATTACHMENT AND SEQUESTRATION – CONTEMPT – WHAT CONSTITUTES – DISOBEDIENCE OF ORDERS OF COURT – ORDERS RELATING TO DOCUMENTS – where the Court had ordered that the first defendant inform the plaintiff of “all of the assets of the Defendant in Australia and elsewhere” – where the Court had ordered that the first defendant swear an affidavit disclosing all information on the “disbursement, location and whereabouts of the Plaintiff’s monies” – where the first defendant swore such an affidavit but it was untrue – whether the first defendant is in contempt Duhs v Pettett [2009] QSC 100, cited Kennon v Spry (2008) 238 CLR 366, applied
COUNSEL:	D R Cooper SC, with L J Nevison, for the plaintiff D C Gration for the first defendant
SOLICITORS:	Ferguson Cannon for the plaintiff Lillas & Loel for the first defendant