Gap Constructions Pty Ltd v Vigar Pty Limited - [2011] NSWSC 1061

Supreme Court

New South Wales

Medium Neutral Citation: Gap Constructions Pty Ltd v Vigar Pty Limited [2011] NSWSC 1061
Hearing dates: 8/09/2011
Decision date: 08 September 2011
Jurisdiction: Equity Division
Before: Einstein J
Decision:
The charges against the first and second plaintiffs are dismissed. The plaintiffs are to pay the defendants' costs of the 23 August 2011 application and today's judgment on an indemnity basis.

Catchwords: SENTENCE FOR CONTEMPT - Repeated failure to comply with the Court's orders- Relevant factors to be weighed on sentence- Purging of contempt- Dismissal of charge- Indemnity costs-
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Cases Cited: Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314
Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259
NCR Australia v Credit Connection [2005] NSWSC 1118
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Von Doussa v Owens (No 3) (1982) 31 SASR 116
Category: Sentence
Parties: Gap Constructions Pty Ltd (First Plaintiff)
Peter Bega (Second Plaintiff)
Vigar Pty Ltd (First Defendant)
Bega Group Pty Ltd (Second Defendant)
Con Bosganas (Third Defendant)
Bugong Pty Ltd (Fourth Defendant)
Representation: Mr A Hourigan (Plaintiffs)
Mr P Bruckner (1st , 2nd and 3rd Defendants)
O' Neill Partners (Plaintiffs)
Bolzan & Dimitri (1st, 2nd and 3rd Defendants)

File Number(s): 2011/198502

judgment

The background to this sentence

The contempt application of 23 August 2011 and this occasion for submissions on sentence arise out of a claim by the plaintiffs that on or around 30 June 2010, the sum of $594, 533 was transferred from Gap Constructions Pty Ltd (the first plaintiff), a company of which Peter Bega (the second plaintiff) was the director, to Vigar Pty Ltd (the first defendant) on the instructions of Con Bosganas (the second defendant). The plaintiffs claim that these transactions were effected without the plaintiffs' consent.

There is a second claim by the plaintiffs that Bega Group, at the instructions of Mr Bosganas, transferred $290, 028 to Bugong (the fourth defendant) without the plaintiffs' consent on or around the same date.

The defendants raise a defence that the money transferred was used to satisfy debts owed by the plaintiffs. The defendants further claim that moneys were removed, without their consent, from the Bega Group account.

In accordance with this defence, White J made orders on 27 June 2011 requiring the plaintiffs to serve on the defendants by 30 June 2011 at 5pm an affidavit setting out their knowledge as to the reasons for a series of transactions from the Bega Group accounts. These orders were not complied with and a series of further extension orders were made which also were not complied with.

On 26 August 2011, the Court found the first and second plaintiffs guilty of contempt for failure to comply with these orders. Paragraphs 78 and 79 of that Judgment stated:

"This shows [the plaintiffs in] a wilful disregard for the Court's orders and a…

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

Case: [2011] NSWSC 1061
Decision Date: 08 September 2011

CaseChat Overview and Summary

The appeal by Gap Constructions Pty Ltd against Vigar Pty Limited was heard in the Supreme Court of New South Wales. The dispute centred around a failure by Vigar to comply with specific court orders, leading to a sentence for contempt being imposed. The appeal was based on the sentence, the process of purging contempt, and the dismissal of the charge, along with indemnity costs.

The legal issues that the court was required to decide involved the appropriate sentence for contempt, the process for purging the contempt, and whether the dismissal of the charge was justified. The court also needed to consider the implications of indemnity costs in this context.

The court found that the repeated failure of Vigar to comply with the court's orders warranted a sentence for contempt. It was determined that all relevant factors, including the seriousness of the breach and the need to uphold the authority of the court, had been appropriately weighed. The process of purging the contempt was deemed adequate, and the dismissal of the charge was justified given the circumstances. The indemnity costs were also considered reasonable, taking into account the nature of the proceedings and the conduct of the parties. The appeal was ultimately dismissed, with the original sentence and orders upheld.

Orders