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Kenneth James Baker v Anthony Christopher Paul

Kenneth James Baker v Anthony Christopher Paul

Case [2012] NSWSC 392 23 March 2012

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kenneth James Baker & Ors v Anthony Christopher Paul & Ors [2012] NSWSC 392
Hearing dates: 22 March 2012
Decision date: 23 March 2012
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Proceeding for contempt not rendered incompetent by Bankruptcy Act, s 58(3). Directions made for filing and serving submissions as to costs.

Catchwords: PROCEDURE - contempt, attachment and sequestration - motion for contempt brought for breach of the Court's orders - after filing the motion for contempt a sequestration order is made against the estate of one of the alleged contemnors - prosecutor disclaims any attempt to recover money from the estate of the bankrupt. BANKRUPTCY - scope and policy of legislation - whether Bankruptcy Act, s 58(3) renders the contempt motion incompetent.
Legislation Cited: Bankruptcy Act 1966 (Cth)
Cases Cited: ANZ Group Limited v Computer Plus (1992) IVR 607
Attorney-General v Times Newspapers Ltd [1992] 1 AC 191
Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Barewa Oil and Mining NL (in liquidation) v ISIM Mineral Development Pty Limited (1981) 38 ALR 288
Coventry v Charter Pacific Corp Ltd (2005) 227 CLR 234
Emma Silver Mining Co v Grant (1880) 17 Ch D 122
Fraser v Commissioner of Taxation & Anr (1969) 69 FCR 99
Green v Schneller [2001] NSWSC 897
Pang v Bydand Holdings Pty Limited [2011] NSWCA 69
Re Lattouf (1994) 52 FLR 147
Re Sutherland-Cropper (1985) 11 FCR 156
Sigalla v TZ Limited [2011] NSWCA 334
State Government Insurance Office (Queensland) v Rees (1979) 144 CLR 549
Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 45
Wentworth v Rogers [2009] NSWSC 1038
Witham v Holloway (1995) 183 CLR 525
Category: Principal judgment
Parties: First Plaintiff:- Kenneth James Baker
Second Plaintiff:- KJB Media Pty Ltd
First Defendant:- Anthony Christopher Paul
Second Defendant:- ACN 129 258 546 Pty Ltd (formerly known as Association Media Pty Ltd)
Third Defendant:- Tony Paul Media Pty Limited
Representation: Plaintiffs:- M.W. Sneddon
Defendants:- E. Peden
Plaintiffs:- Andrew Cameron, McLaughlin & Riordan
Defendants:- Karen McLean, McLean & Associates

File Number(s): 2010/285602
Publication restriction: No

EX TEMPORE Judgment

From about late 2007 Mr Ken Baker, the first plaintiff, and Mr Anthony Paul, the first defendant, were in a partnership conducting the business of selling advertising space in certain Australian magazine publications. The partnership existed until December 2009 when an agreement for its unwinding was made. Mr Baker and a company he controls have now commenced proceedings to recover what are said to be partnership moneys that Mr Paul has allegedly misapplied.

This Court made orders in late August and early September 2010 restraining Mr Paul's dealings with partnership moneys. By a motion filed in September 2011, Mr Baker, and a company he controls, now allege that Mr Paul, and a company he controls, are in contempt of the Court's 2010 orders. But Mr Paul filed a debtor's petition in October 2011 and is…

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 Kenneth James Baker v Anthony Christopher Paul

Details

AGLC: Kenneth James Baker v Anthony Christopher Paul [2012] NSWSC 392
Case: [2012] NSWSC 392
Decision Date: 23 March 2012

CaseChat Overview and Summary

Kenneth James Baker filed a motion for contempt against Anthony Christopher Paul, alleging that Paul had breached several orders made by the Court. Baker claimed that Paul had failed to comply with various directives and sought a declaration of contempt against him. The dispute came before the Court, which had to determine the appropriate course of action in light of a subsequent sequestration order made against Paul's estate.

The central legal issue the Court had to decide was whether the motion for contempt was incompetent given the sequestration order made against Paul's estate. Specifically, the Court had to consider whether section 58(3) of the Bankruptcy Act rendered the motion incompetent. This section provides that once a sequestration order has been made, no proceedings can be continued against a bankrupt's estate without the leave of the Court. The Court also had to consider whether the prosecutor's disclaimer of any attempt to recover money from Paul's bankrupt estate affected the motion's competency.

The Court determined that the motion for contempt was not rendered incompetent by the sequestration order made against Paul's estate. It found that the motion for contempt was a separate proceeding from the bankruptcy proceedings and did not require leave under section 58(3) of the Bankruptcy Act. The Court further held that the prosecutor's disclaimer did not impact the competency of the motion. The Court concluded that the motion for contempt could proceed, and the contempt could be determined without interference from the sequestration order or the disclaimer.

The Court made an order that the motion for contempt could proceed, and the contempt could be determined. The Court also noted that any costs associated with the motion for contempt would be addressed in a separate order.

Orders