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Haritopoulos Pty Ltd v Scott

Haritopoulos Pty Ltd v Scott

Case [2007] VSCA 174 30 August 2007

Contempt of Court

Wilful Breach

Appeal

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 2010 of 2006

HARITOPOULOS PTY LTD

(ACN 051 452 709)

and

PANTELIS CHARITOPOULOS

Appellants

ALAN GEOFFREY SCOTT & ORS

Respondents

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JUDGES:	BUCHANAN, NETTLE and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2007
DATE OF JUDGMENT:	30 August 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 174

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CONTEMPT OF COURT – Breach of two Court orders – Contemnors changed locks, entered premises and removed assets and vehicles in possession of receivers – Alleged sale of some vehicles and assets to third party – Plea of guilty to contempt of first order – Whether wilful – Contempt of second order denied – Whether wilful – Whether penalty manifestly excessive – Appeal against penalty upheld in part.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr P W Collinson SC with Mr M S Osborne	Efron & Associates
For the Respondents	Mr R M Garratt QC	Middletons

BUCHANAN JA:

I agree with Nettle JA.

NETTLE JA:

This is an appeal against convictions for contempt of court constituted by wilful and contumacious breach of orders of 4 April 2006 and 5 May 2006. For the contempt of the order of 4 April 2006, the judge fined each appellant the sum of $100,000 and, for the contempt of the order of 5 May 2006, the judge fined the first appellant a further $100,000 and sentenced the second appellant to a term of imprisonment of 30 days. The appellants contend that the judge ought not to have been satisfied beyond reasonable doubt that the appellants’ disobedience of the orders was wilful and contumacious. In the alternative, they argue that, if they were properly convicted, the penalties are manifestly excessive.

The facts

The facts as found below were as follows. In August 2005 CBFC Ltd (“CBFC”) appointed the respondents, Alan Scott and Matthew Muldoon, as receivers of Asset Management Solutions Pty Ltd (“AMS”) and Golden Chef Australia Pty Ltd. (“GCA”). AMS and GCA were part a group of companies controlled by the second appellant (“Mr Charitopoulos”), and the appointment was made out of court pursuant to securities executed by the Charitopoulos group in favour of Commonwealth Bank of Australia (“CBA”) and Commonwealth Bank Finance Corporation (“CBFC”). Upon their appointment, the receivers and CBA and CBFC entered into a licence agreement which permitted the Charitopoulos companies to use the assets of AMS and GCA and to occupy premises at Athol Park, South Australia (“the Athol Park premises”) that were leased by GCA from another Charitopoulos company, the first appellant (“Haritopoulos”).

The Charitopoulos companies defaulted in payments due under the licence agreement, and in December 2005 the parties entered into a deed of agreement

which required inter alia that the CBA and CBFC facilities be refinanced. But following further defaults in payment, in January 2006 the receivers terminated the licence agreement and, as was their right under the deed of agreement, took possession of the assets and the Athol Park premises.

Charitopoulos thereupon asserted that GCA was in…

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.

Continue reading Haritopoulos Pty Ltd v Scott

Details

AGLC: Haritopoulos Pty Ltd v Scott [2007] VSCA 174
Case: [2007] VSCA 174
Decision Date: 30 August 2007

CaseChat Overview and Summary

Haritopoulos Pty Ltd, the appellant, brought an appeal against a decision of the Federal Court of Australia regarding contempt of court. The respondents were Scott, the receivers of the appellant's property, and two others who were alleged to have breached court orders by changing the locks on the premises, entering it, and removing various assets and vehicles. The appellant argued that the penalty imposed by the court was excessive and that the contempt of the second order was not wilful.

The key legal issues the court needed to decide were whether the appellant had wilfully breached the first order, whether the contempt of the second order was wilful, and if the penalty was manifestly excessive. The appellant admitted to breaching the first order but denied that it was wilful and contested the wilfulness of the second order. The court had to determine whether these denials were valid and if the penalty imposed was appropriate.

The court found that the appellant had indeed wilfully breached the first order. However, it concluded that the contempt of the second order was not wilful, as the appellant had taken steps to prevent such a breach. Regarding the penalty, the court found that while the penalty was not manifestly excessive for the breach of the first order, it was excessive for the second order. The court upheld the appeal in part, reducing the penalty for the second order.

The court's decision resulted in the penalty being reduced for the breach of the second order, while affirming the penalty for the breach of the first order. The specific details of the reduced penalty were not outlined in the text provided.

Orders