Fajloun v Khoury

[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.…