Fajloun v Khoury

Case [2016] NSWCA 101


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Fajloun v Khoury [2016] NSWCA 101
Hearing dates:23 October 2015
Decision date: 10 May 2016
Before: Meagher JA at [1]; Simpson JA at [17]; Emmett AJA at [124]
Decision:

Appeal dismissed with costs.

Catchwords: PROCEDURE – contempt of court – where court ordered parties to take reasonable steps to cause all cash takings for businesses to be deposited into bank accounts subject to payments to creditors and employees in cash if required – whether appellant was guilty of contempt – whether appellant was an employee – whether payment in cash was “required”
Legislation Cited: Fair Work Act 2009 (Cth), s 323
Supreme Court Act 1970 (NSW), s 101(5)
Cases Cited: Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201
Anderson v Hassett [2007] NSWSC 1310
ASIC v Sigalla (No 3) [2010] NSWSC 1076
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; 161 CLR 98
Fitzgerald v Masters [1956] HCA 53; 95 CLR 420
Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21
Humberstone v Northern Timber Mills [1949] HCA 49; 79 CLR 389
In the matter of Mycorp Pty Ltd [2014] NSWSC 1180
In the matter of Mycorp Pty Ltd [2014] NSWSC 899
Mareva Building Consultants v Zevon [2013] ACTCA 28
National Australia Bank v Juric [2001] VSC 375
Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149
Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; 160 CLR 16
Witham v Holloway [1995] HCA 3; 183 CLR 525
Wyszenko v Wyszenko [2012] NSWSC 732
Category:Principal judgment
Parties: Fred Fajloun (Applicant)
George Khoury (Respondent)
Representation:

Counsel:
M Condon SC (Applicant)
J Kelly SC (Respondent)

  Solicitors:
Sage Solicitors (Applicant)
Bamford Lawyers (Respondent)
File Number(s):2014/226722
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity Division
Citation:
In the matter of Mycorp Pty Ltd [2014] NSWSC 899
Date of Decision:
04 July 2014
Before:
Black J
File Number(s):
2012/350220

Judgment

  1. MEAGHER JA: I have had the benefit of reading in draft the judgments of Simpson JA and Emmett AJA. The reasons which follow assume a familiarity with those judgments.

  2. As Simpson JA observes at [21] there were two fundamental issues in the contempt proceedings. The primary judge decided each of them in favour of the respondent.

  3. The first was whether the appellant, either as an employee or otherwise, was a creditor of Mycorp and Moonstone at the time the relevant payments were made. I agree with Emmett AJA that it is by no means clear that after July 2011 the appellant remained entitled to weekly wage payments, or other remuneration, for services provided to those companies.

  4. There are two matters which in my view raise significant doubt as to the continued existence of such an entitlement. Those matters arise out of the conversation which the appellant had with the respondent in the second half of 2011.…

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AGLC
Fajloun v Khoury [2016] NSWCA 101
Case
[2016] NSWCA 101
Decision Date

CaseChat Overview and Summary

The appeal concerned allegations of contempt of court brought by the respondent against the appellant. The dispute arose from an earlier court order directing the parties to take reasonable steps to ensure all cash takings from their businesses were deposited into designated bank accounts. This was to facilitate payments to creditors and employees, with the proviso that cash payments could be made if required. The appellant was accused of breaching this order.

The central legal issues before the Court of Appeal were whether the appellant was guilty of contempt of court, whether the appellant could be considered an employee for the purposes of the order, and what constituted a "required" cash payment under the terms of the court's directive.

The Court of Appeal considered the evidence presented and the terms of the original order. It was held that the appellant had failed to take reasonable steps to comply with the order regarding the deposit of cash takings. Furthermore, the Court determined that the appellant's role and actions meant they were not acting solely as an employee in a manner that would exempt them from the primary obligation to deposit takings. The interpretation of "required" was also addressed, with the Court finding that the circumstances did not justify the appellant's actions in circumventing the deposit requirement.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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