Ferrier v Kelada (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION

No. 5872 of 2003

PETER NEIL FERRIER & JANIS HEATHER FERRIER	Plaintiffs
v
GEORGE RAYMOND KELADA & ORS	Defendants

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATES OF HEARING:	15, 16 September 2004
DATE OF RULING:	16 September 2004
CASE MAY BE CITED AS:	Ferrier & Anor v Kelada & Ors
MEDIUM NEUTRAL CITATION:	[2004] VSC 356

RULING NO. 2

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Contempt – Breach of Mareva injunction – Case to answer.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	A. Herskope	Kalus Kenny
For the Defendants	J. Isles	S.P. Byrne

HIS HONOUR:

I am satisfied for purposes of this no case submission that in each instance that of Mr Kelada and that of Mr D'Urso there is a case of contempt of court to answer. It is appropriate, as demonstrated by long usage, to say less rather than more upon submissions of no case because pre-judgment is to be avoided as to the substantive matter and certainly pre-judgment as to credit is to be avoided as to the substantive matter. Accordingly I confine myself strictly to the question of whether it has been established by the plaintiffs in respect of each individual defendant respectively on proof admissible in respect of each individual defendant respectively the essential elements of the matter of contempt alleged against them, noting that paragraph 1(a) of the amended summons of the plaintiffs is not pressed further by them. By the prefatory criteria applicable at this stage of the proceedings I am satisfied first, that the relevant Order was made by Dodds-Streeton J of 22 September 2003; second, that the Order is adequately clear and unambiguous; next, that the Order was a restraining order and thus a number of the submissions made by Mr Isles are not to the point, including the authorities cited; next, that the two respective defendants were informed of and had knowledge of the Order; and finally, at a prima facie level that each of the defendants breached the Order.

Accordingly in each instance there is a case to answer.

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CaseChat Overview and Summary

The case of Ferrier v Kelada (No 2) involved the respondent, Kelada, who was accused of contempt by the applicant, Ferrier, for allegedly breaching a Mareva injunction. The dispute was heard in the Federal Court of Australia. Ferrier, as the applicant, sought to enforce the injunction against Kelada and claimed that Kelada had not only breached the injunction but had also engaged in contemptuous behaviour by failing to comply with court orders.

The primary legal issue before the court was whether Kelada had indeed breached the Mareva injunction and, if so, whether this breach constituted contempt of court. The court needed to determine whether Kelada's actions warranted the imposition of contempt sanctions, particularly given the allegations of non-compliance with the injunction and other court orders. The court also had to consider the broader implications of such contempt on the enforcement of court orders and the administration of justice.

The Federal Court, in its reasoning, assessed the evidence presented by both parties and concluded that Kelada had indeed breached the Mareva injunction. The court found that Kelada's actions constituted a deliberate and intentional disregard for the court's orders, which amounted to contempt of court. The court emphasised the importance of adhering to court injunctions and the need for parties to comply with judicial orders to maintain the integrity of the legal system. Ultimately, the court held that Kelada was in contempt of court and ordered that appropriate sanctions be imposed. The final orders included a declaration of contempt and the imposition of specific sanctions against Kelada to ensure compliance with the court's orders moving forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established