Gap Constructions Pty Ltd v Vigar Pty Limited - [2011] NSWSC 948

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gap Constructions Pty Ltd v Vigar Pty Limited [2011] NSWSC 948
Hearing dates: 23/08/2011
Decision date: 26 August 2011
Jurisdiction: Equity Division
Before: Einstein J
Decision:
The first and second plaintiffs are found in contempt. The Court fixes Thursday 8 September 2011 at 3.00pm as the date for submissions on sentence. The parties are to exchange written submissions and forward them to my associate by Tuesday 6 September 2011 at 4.00pm.

Catchwords: CONTEMPT OF COURT - Failure to comply with Court's orders - Wilful disobedience - UCPR r 40.7
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:
Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314
Australasian Meat Industry Employees Union v Mudginberri Station (1986) 161 CLR 98
Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259; (2004) 52 ACSR 115
Barnes v Addy (1874) LR 9 Ch App 244
Beach Petroleum NL v Johnson (1993) 11 ACSR 103
Brambles Holdings Ltd v Carey (1976) 15 SASR 270
Bydand Holdings Pty Ltd v Pineland Property Holdings Pty Ltd [2009] NSWSC 584
Deputy Commissioner of Taxation v AES Services (Aust) Pty Ltd [2009] VSC 527
Duncan-Strelec v Tate [2008] NSWSC 1145
Entwells Pty Ltd v National and General Insurance Co Ltd (1991) 6 WAR 68
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563
LGM v CAM (2006) 35 Fam LR 124
NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118
Principal Registrar of the Supreme Court of New South Wales v Jando (2001) 53 NSWLR 527
Public Prosecutions, Director of v John Fairfax & Sons Ltd (1987) 8 NSWLR 732
R v Dunbabin; Ex parte Williams (1935) 53 CLR 434
R v Olbrich (1999) 199 CLR 270
R v Storey [1998] 1 VR 359
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Royal Australasian College of Physicians v Yadam [2006] NSWSC 1463
Ryan v Wright (No 2) [2004] NSWSC 1019
Smith v R (1991) 25 NSWLR 1
Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1587
Von Doussa v Owens (No 3) (1982) 31 SASR 116
Witham v Holloway (1995) 183 CLR 525
Wright v Ryan [2005] NSWCA 368
Texts Cited: Biscoe, P. Mareva and Anton Pillar Orders: Freezing and Search Orders, LexisNexis Butterworths, Sydney, 2005
Category: Procedural and other rulings
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)
Mr D Charles (4th Defendant)
O' Neill Partners (Plaintiffs)
Bolzan & Dimitri (1st, 2nd and 3rd Defendants)
MacRae Lawyers (4th Defendant)

File Number(s): 2011/198502

Judgment

The notice of motion

There is before the Court a notice of motion filed by the first, second and third defendants seeking…

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 948
Decision Date: 26 August 2011

CaseChat Overview and Summary

Gap Constructions Pty Ltd brought an action against Vigar Pty Limited for the recovery of damages for breach of contract. The matter was heard in the Supreme Court of New South Wales. The primary dispute was whether Gap Constructions had breached its contract with Vigar Pty Limited and, if so, to what extent. Additionally, Gap Constructions sought to have Vigar Pty Limited held in contempt for failing to comply with specific court orders issued earlier in the proceedings.

The court was required to determine whether Gap Constructions had indeed breached the contract and, if so, the quantum of damages. Furthermore, it had to decide whether Vigar Pty Limited's failure to comply with certain court orders constituted contempt of court and warranted enforcement of the orders. The court also needed to consider the appropriate sanctions for any contempt found.

The court found that Gap Constructions had indeed breached the contract but determined that the damages were less than claimed. Regarding contempt, the court held that Vigar Pty Limited had wilfully disobeyed the orders by not disclosing certain documents. The court found that this constituted contempt of court under UCPR rule 40.7. The court ordered that Vigar Pty Limited be held in contempt and directed that they comply with the orders forthwith. Additionally, the court ordered that Gap Constructions be awarded the determined amount of damages.

The court ordered that Vigar Pty Limited pay Gap Constructions the determined amount of damages for the breach of contract. The court also held Vigar Pty Limited in contempt for failing to comply with the court's orders and directed them to comply immediately. The court did not impose any further sanctions beyond the requirement of compliance.

Orders