Kith v SLH Industries & Heng (No 2)
[2025] VCC 1177
•21 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-19-04148
| HONGYI KITH | Plaintiff |
| v | |
| SLH INDUSTRIES PTY LTD (ACN 603 995 268) | First Defendant |
| SENGLY HENG | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE WISE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 July 2025, 8 July 2025 and 11 August 2025 | |
DATE OF SENTENCE: | 21 August 2025 | |
CASE MAY BE CITED AS: | Kith v SLH Industries & Heng (No 2) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1177 | |
REASONS FOR SENTENCE
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Subject:Contempt of Court - Penalty
Catchwords: Contempt of Court – orders that judgment debtor produce financial documents – 6 sets of orders for production made over course of almost 2 years – selective production of documents – non-production of statements for 2 bank accounts – judgment debtor continued to transact on those accounts – approximately $1.2 million transacted through accounts over period of non-production – account statements only produced after contempt proceedings commenced - judgment debtor found guilty of 11 contempts of court – conduct contumacious – appropriate penalty.
Legislation Cited: County Court Civil Procedure Rules 2018 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Kith v SLH Industries Pty Ltd & Heng [2025] VCC 432. Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, Deputy Commissioner of Taxation v Gashi (No 3) (2011) 85 ATR 262; [2011] VSC 448; Matthews v ASIC [2009] NSWCA 155; Re Group Pty Ltd v Kazal (No 5) [2018] FCA 546; ASIC v Michalik [2004] NSWSC 1259; CFMEU v Grocon Constructions (Victoria) Pty Ltd (2014) 47 VR 527; Moira Shire Council v Sidebottom Group Pty Ltd [2019] VSC 569; Hera Project Pty Ltd v Bisognin (No 2) [2019] VSC 625; Primelife v Corporation Ltd v Newpark Pty Ltd [2003] VSC 106; Witham v Holloway (1995) 183 CLR 525, 530; CFMEU v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375; Moira Shire Council v Sidebottom Group Pty Ltd [2019] VSC 569; Kazal v Thunder Studios (California) Inc (2017) 256 FCR 90; Victorian Legal Services Board v Jenson [2022] VSC 603; Zhang v Shi (No 6) (2022) 67 VR 469; R v Witt (No 2) [2016] VSC 142; The Queen v The Herald & Weekly Times Pty Ltd [2021] VSC 253; Testel Australia Pty Ltd v KRG Electrics Pty Ltd [2014] SASC 119; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323; Khoury v Kirwan (No 4) [2021] VSC 333; Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404; Deputy Commissioner of Taxation v Hickey [1999] FCA 259; Vaysman v Deckers Outdoor Corporation Inc (2014) 222 FCR 387; Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309; Australian Prudential Regulation Authority v Siminton (No 3) [2006] FCA 397; Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 3) [2019] NSWSC 511; Pelechowski v The Registrar, Court of Appeal (1998) 198 CLR 435 at 463; Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202; R v Murray [2018] VSC 133; Fahey v Bird (No.2) [2023] VSC 540; SeaRoad Shipping Pty Ltd v Pannell & Ors (No 2) [2025] VSC 448; R v Holder & Johnston [1983] 3 NSWLR 245; R v Visconti [1982] 2 NSWLR 104.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms H Jager | Stephens Lawyers |
| For the Second Defendant | Ms B Murphy | KHQ Lawyers |
TABLE OF CONTENTS
Introduction
The charges
Materials relied upon at penalty hearing
General principles of sentencing for contempt
Criminal and civil contempt
Available remedies
Applicability of the Sentencing Act
General Principles
The plaintiff’s evidence
The second defendant’s evidence
Civil or criminal: were the contempts contumacious?
Consideration of factors relevant to sentence
The nature and circumstances of the contempt
The contempts are not ongoing
The actual consequences of the contempt; the contemnor has received, or sought to receive, a benefit or gain from the contempt
The second defendant’s personal circumstances, antecedents and financial means
The second defendant’s culpability and reasons for his conduct
General contrition and apology
The effect of the contempt on the administration of justice
Specific deterrence, general deterrence and denunciation
Penalty
Costs
HIS HONOUR:
Introduction
1On 11 April 2025, I found the second defendant (Sengly Heng) guilty of 11 charged acts of contempt of court. The reasons for that decision were published in Kith v SLH Industries Pty Ltd & Heng [2025] VCC 432 (Contempt Reasons). Defined terms in those reasons are adopted in these reasons.
2After handing down the Contempt Reasons, I deferred the penalty hearing to allow each party to provide evidence and submissions on that question (Penalty Hearing).
The charges
3The background of this proceeding and the details of the contempt charges are complex, as set out in depth within the Contempt Reasons.
4In brief, on 30 September 2024, the plaintiff issued a summons charging Mr Heng with 44 acts of contempt of court. Of those, 25 charges were subsequently withdrawn following opening submissions at the Liability Hearing, leaving 19 charges pressed. On 11 April 2025, I found Mr Heng guilty of 11 charges and found that the remaining 8 charges were not proved to the requisite standard.
5I will briefly describe the 11 counts of contempt.
6In orders made on 5 November 2021, 3 December 2021, 9 May 2022, 24 January 2023, 16 August 2023 and 27 October 2023, Mr Heng was ordered to produce bank statements for each bank account held by him for various periods. It should be noted that Mr Heng was thus ordered to produce these bank statements on 6 occasions spanning a period of nearly 2 years.
7Charges 1, 5, 8, 11, 14, 17, 30, 42 and 43 concerned Mr Heng’s failure to have produced statements for the NAB 053 Account which was held in his own name in response to those 6 orders. Those bank statements were responsive to a number of categories of documents in some of those orders.
8In orders made on 3 December 2021 and 9 May 2022, Mr Heng was ordered to produce bank statements for each bank account controlled by him for various periods. The descriptor “controlled by him” thus broadened out the category of bank accounts that were covered by these orders.
9Charges 14 and 17 concerned his failure to have produced statements for the NAB 446 Account in the name of SLH Industries Investments Pty Ltd and over which Mr Heng had control in response to those 2 orders.
10I determined that each of these 11 charges were proven beyond reasonable doubt, and on each occasion Mr Heng’s failure to have produced the statements for each account was wilful and deliberate.
Materials relied upon at penalty hearing
11Ms Kith’s submissions on sentence were supported by the following affidavit:
(a) Affidavit of Ms Hongyi Kith dated 14 May 2025.
12Mr Heng’s submissions on sentence were supported by the following affidavits:
(a) Affidavit of Teralen Tit dated 17 June 2025;
(b) Affidavit of Sengly Heng dated 19 June 2025;
(c) Affidavit of Paul Benjamin Welling dated 19 June 2025 (exhibiting a statement of Sokhom Khun dated 9 June 2025).
General principles of sentencing for contempt
13Rule 75.11 of the County Court Civil Procedure Rules 2018 relevantly provides that:
75.11 Punishment for contempt
(1) Where the respondent is a natural person, the Court may punish for contempt by committal to prison or fine or both.
…
(3)When the Court imposes a fine, it may commit, or further commit, the respondent to prison until the fine is paid.
(4) The Court may make an order for punishment on terms, including a suspension of punishment.
14The parties were in substantial agreement as to the principles applicable to punishment in contempt proceedings. The underlying purpose of punishing for contempt of court is to uphold and protect the effective administration of justice by demonstrating that court orders will be enforced.[1]
[1]Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, 107.
15The parties agreed that the following factors, where relevant, ought to be considered when determining an appropriate penalty:
(a) the contemnor’s personal circumstances;
(b) the nature and circumstances of the contempt;
(c) the actual consequences of the contempt;
(d) the effect of the contempt on the administration of justice;
(e) the contemnor’s culpability;
(f) the need to deter the contemnor (specific deterrence) and others (general deterrence) from repeating the contempt;
(g) the contemnor’s reasons for his or her conduct;
(h) the absence or presence of a prior conviction for contempt;
(i) the contemnor’s financial means;
(j) whether the contemnor has exhibited general contrition and made a full and ample apology;
(k) whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; and
(l) the need for denunciation of contemptuous conduct.[2]
[2]Deputy Commissioner of Taxation v Gashi (No 3) (2011) 85 ATR 262; [2011] VSC 448 at [5] and the cases cited therein; Matthews v ASIC [2009] NSWCA 155 at [129]; see also Re Group Pty Ltd v Kazal (No 5) [2018] FCA 546 [29]-[30]; ASIC v Michalik [2004] NSWSC 1259 at [29].
16In addition to the above, Counsel for Mr Heng submitted that the following further factors should also be considered:
(a) the character and antecedents of the contemnor;[3]
(b) whether the contemnor was aware of the consequences to himself of what he proposed to do.[4]
[3]Matthews at [129].
[4]Michalik at [29].
17The review of punishments delivered in other contempt proceedings is “of limited assistance, as each case really depends upon the Court’s assessment of the relevant facts”.[5]
[5]Michalik at [49] and the authorities cited therein.
Criminal and civil contempt
18To the extent that any distinction between criminal and civil contempts remains, “it is now tolerably clear that the types of punishment available for civil and criminal contempts are broadly the same”.[6] This is, however, qualified by its relevance to the consideration of the imposition of penalty.
[6]CFMEU v Grocon Constructions (Victoria) Pty Ltd (2014) 47 VR 527, 569 [170], noting the qualification at 570 [173]-[174]; Moira Shire Council v Sidebottom Group Pty Ltd [2019] VSC 569 at [12].
19In Hera Project Pty Ltd v Bisognin (No 2)[7] the Court confirmed that although disobedience of a court order will usually be a civil contempt, it may be considered criminal contempt where:
(a) the contempt is contumacious; or
(b) the proceedings serve a punitive purpose of punishing a past breach, rather than a remedial purpose of coercing obedience with the order.[8]
[7][2019] VSC 625.
[8]at [10] citing CFMEU v Grocon Constructors (Victoria) Pty Ltd (2014) 47 VR 527 [275]–[276].
20Factors relevant to penalty in contempt proceedings which are considered aggravating features require proof to the criminal standard. That is, beyond reasonable doubt.[9] Such matters include whether the conduct can be properly categorised as contumacious, or deliberately defiant.[10] I note that the fact that contempt is wilful or deliberate does not mean that it is contumacious.[11] A breach which is wilful may be contumacious where:[12]
(a) the contemnor knows the breach is prohibited and has no reasonable belief that it can be excused;
(b) the breach involves perverse obstinate resistance to authority; or
(c) there is a direct intention to disobey the order.
[9]Bisognin (No 2) at [31] citing Primelife v Corporation Ltd v Newpark Pty Ltd [2003] VSC 106 [39].
[10]Witham v Holloway (1995) 183 CLR 525, 530; CFMEU v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375, 395 at [65].
[11]Moira Shire Council v Sidebottom Group Pty Ltd [2019] VSC 569 at [14].
[12]Bisognin at [11].
21In Kazal v Thunder Studios (California) Inc[13], the Federal Court explained contumacy as follows:
Aggravation by way of conduct and a state of mind found to be contumacious can be seen to be on a sliding scale. For example, it may range from deliberate and wilful defiance, to an unsuccessful attempt to get around a prohibition, to an unsuccessful attempt to comply with a prohibition. Proven recklessness or carelessness may be seen not to be contumacious at all. This process of characterisation is inevitably driven by close attention to what was done. This includes what can be said about state of mind able to be ascertained from all of the evidence, including by way of inference.
[13](2017) 256 FCR 90 at [106].
22In Victorian Legal Services Board v Jenson,[14] John Dixon J provided a summary of the difference between civil and criminal contempt:
[19] …Criminal contempt requires the conduct to be contumacious, or for the proceeding to serve a punitive purpose of punishing a past breach rather than a remedial purpose of coercing obedience with an order. A wilful breach may be considered contumacious where the contemnor knows the breach is prohibited and has no reasonable belief that it can be excused; the breach involves perverse or obstinate resistance to authority; or there is a direct intention to disobey the order. The breach must be both wilful and calculated, in the sense of ‘likely’, to interfere with the course of justice. It is a deliberate determination to defy the court. A finding of guilt for criminal contempt has been regarded as the equivalent of a conviction, whereas if a contemnor is adjudged guilty of civil contempt, no conviction should be recorded. The language used is that of a declaration of the contemnor’s guilt, rather than conviction of an offence.
[20] Where the breach of an order is casual, accidental or intentional, the court may exercise its discretion to impose no penalty. Where a contempt is considered criminal, a court may record a formal conviction and is more likely to impose a severe penalty, including imprisonment. A sentence of imprisonment is available in cases of civil contempt, but it is rarely considered appropriate. The central consideration in either case is the importance of upholding the effective administration of justice.
[14] [2022] VSC 603 at [19]-[20].
23The issue of whether the contempts in this case are criminal or civil in nature will be considered further below.
Available remedies
Applicability of the Sentencing Act
24In Zhang v Shi (No 6),[15] Delaney J said that the Sentencing Act 1991 (Vic):
… does not have direct application to penalties for contempt. While that is so, it is nevertheless appropriate to approach sentencing for contempt in a manner that is consistent with the approach adopted in the Sentencing Act.
[15](2022) 67 VR 469 at [48].
25While the Sentencing Act does not directly apply, its principles may be relevant where they can be applied by analogy to the imposition of the appropriate remedy.[16]
[16]R v Witt (No 2) [2016] VSC 142 at [92]; The Queen v The Herald & Weekly Times Pty Ltd [2021] VSC 253 at [210] and the authorities cited therein.
General Principles
26The parties were agreed as to available remedies. The applicable principles include that:
(a) A natural person may be punished for contempt by committal to prison, fine, or both.[17]
(b) The penalty may also be imposed upon terms, including by suspension of punishment.[18]
(c) A custodial sentence must not be imposed where a non-custodial sentence would achieve its purpose.[19]
(d) The imposition of a fine ought have regard to the potential for it to diminish the capacity of the contemnor to pay a judgment debtor,[20] or further harm the plaintiff’s interests as a creditor.[21]
(e) Although the parties were agreed that compensation may be awarded in particular circumstances,[22] including where the conduct has caused identifiable economic loss,[23] I do not consider the authorities to make clear that apart from very particular circumstances (which I will not canvass here) compensation may generally be ordered. It is true that a contemnor may, as part of making a full purgation of their contempt be required to make “an offer to pay appropriate compensation (or reparation for damages suffered)”[24] this does not provide a sound juridical basis to ground an order by the court that the contemnor pay compensation as part of the remedy ordered for the contempt itself. I do not read the comments of Samuels AP in United Telecasters as going beyond noting that a claim for such an order “may well be arguable”.[25]
I also note the parties’ reference to D Rolph, Contempt (The Federation Press, 2023) at 820-822. After discussing the particular instances where compensation may be ordered, the learned author concludes the discussion of this topic as follows:
“A contemnor may offer to pay compensation as part of the purgation of contempt. Depending upon the circumstances of the case and the nature of the particular contempt, the court may expect compensation to be offered by a contemnor before the court accepts his or her purgation as genuine and satisfactory. However, because the offer of compensation emanates from the contemnor by way of expiation of the contempt, it does not provide support for the court's power to order the payment of damages as a remedy for contempt of court.”
(footnotes omitted)
[17]Order 75.11(1).
[18]Order 75.11(4).
[19]Bisognin (No 2) at [60].
[20]Testel Australia Pty Ltd v KRG Electrics Pty Ltd [2014] SASC 119 at [24].
[21]Bisognin (No 2) at [56].
[22]United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 340, 347.
[23]D Rolph, Contempt (The Federation Press, 2023) at 820-822.
[24]Khoury v Kirwan (No 4) [2021] VSC 333 at [112].
[25] United Telecasters at 347 with the concurrence of Clarke JA and Meagher JA.
27Mr Heng submitted that the following further principles applied:
(a) although any contempt of court is serious, imprisonment is a remedy of “last resort”;[26]
(b) the fact that an offender is impecunious or bankrupt is not a basis for imposing a sentence of imprisonment where one would not otherwise be appropriate;[27]
(c) bankruptcy does not necessarily deprive an award of additional damages (the equivalent of exemplary damages awarded under the Trademarks Act) of its punitive nature. An award of damages which leads to bankruptcy may be as much a deterrent as an award which is paid;[28] and
(d) the Court has power to order a suspended sentence on terms, including to order community service.[29]
[26]Australian Securities and Investments Commission v Matthews (1999) 32 ACSR 404 at [30]; Deputy Commissioner of Taxation v Hickey [1999] FCA 259 at [34].
[27]Bisognin (No 2) at [56].
[28]Vaysman v Deckers Outdoor Corporation Inc (2014) 222 FCR 387 at 401 [38] (Dowsett J).
[29]Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309.
The plaintiff’s evidence
28The plaintiff’s affidavit deposed to the circumstances under which she came to lend US$1,480,000 to SLH Industries Pty Ltd with Mr Heng as guarantor; the 2 repayments of interest and “auditing fee” made; that no further repayments were made; her commencement of proceedings in this court to recover under the loans and entry into a settlement deed; that SLH Industries and Mr Heng then defaulted under the settlement deed and subsequent entry of judgment; payment of $459, 363.70 in reduction of the judgment debt. She deposed that the sum of US$1,094,876.49 and AU$15,250.48 and costs remained outstanding at the date of her affidavit.
29She deposed to the commencement of the oral examination process and the orders for production of documents. She deposed that at the conclusion of that process she was of the view that Mr Heng had not produced all documents that he ought to have and as a consequence she commenced the contempt proceeding.
30After deposing to the fact that 15 days after the contempt proceeding was commenced Mr Heng produced statements on the NAB 053 and NAB 446 Accounts she then noted what was revealed in those accounts. The matters she referred to are adequately canvassed in the Contempt Reasons.
31Ms Kith then deposed to the effect that the contempts have had upon her. She said that had the accounts been disclosed when first ordered she would have sought freezing orders in respect of them and orders that sums in those accounts to be paid to her in reduction of the judgment debts. She deposed that she had incurred legal costs in the oral examination process of $99,571.79 and in the contempt proceedings up to 25 March 2025 of $96,626.84. She said that she would not have incurred those sums had Mr Heng produced the documents when first ordered to do so.
32She deposed that the contempts had caused her a great deal of stress and anxiety. She has been impacted financially. She was deprived of the benefit of funds standing to the credit of those accounts which she says she would have received in reduction of the judgment debts.
33She asserted that Mr Heng had benefitted from his misconduct by transactions in excess of $1.7 million being made through those accounts in the period that they were wrongly concealed.
34She deposed that she had lost the opportunity to invest those funds in property and land purchases in Cambodia upon which she would have made capital gains.
35She then deposed to the sentence that she considered the Court should impose.
36The plaintiff also relied on an affidavit of her solicitor that introduced into evidence personal name searches for Ms Tit and Mr Heng which demonstrated their directorships and shareholdings of a number of companies, landholdings of those companies, material going to the values of those landholdings and mortgages secured against them.
37This affidavit also updated the further costs expected to be expended by Ms Kith in the penalty hearing of approximately $49,610.00.
The second defendant’s evidence
38Mr Heng relied on his own affidavit and one of his wife, Ms Teralen Tit. These affidavits were directed to establishing, amongst other things, Mr Heng’s family financial circumstances including in respect of trusts controlled by himself and Ms Tit.
39Mr Heng deposed to his background in Cambodia and migration to Australia. He deposed to having worked several jobs and taken English classes to better his prospects in Australia. He explained the establishment of his own asbestos removal company and its rapid growth and ultimate demise and liquidation.
40He disputed a number of matters deposed to by Ms Kith about the entry into the loan.
41He said that the funds that were transacted through the NAB 053 and NAB 446 Account were the proceeds of the sale of assets owned by his family trust and some personal items as well as loans from different people including a Mr Kim Thea. He said that:
“a large amount of which was used to pay workers, suppliers, invoices and company debts. Some money did go to my family’s day-to-day living expenses but I did not retain substantial amount of money from transactions to and from these accounts.”
42Mr Heng then deposed to having read and accepted all of the findings made in the Contempt Reasons. He accepted that his conduct was wrong. He apologised for his conduct. He said that he had been taught a painful and serious lesson and accepted the gravity of his actions in disobeying court orders. He acknowledged the harm that he had caused and stated his desire to do whatever he could to demonstrate his remorse “whether that be by giving undertakings, performing community service, or any other actions the Court sees fit.” He acknowledged the harm and hurt he had caused to the plaintiff and apologised to her for that.
43He then said this:
“I do not wish to try to excuse my actions. I do want to explain something about how my background affected me, however. In Cambodia, unfortunately the court system is not widely trusted. Many people view it as corrupt, and court decisions are often believed to be subject to political or financial influence. Growing up in such a system affected how I initially perceived the court process here in Australia. I realise how wrong and naive that view was. I should have understood the importance of full compliance with Court orders from the beginning. I accept full responsibility for my failure.”
I will return to this passage and related evidence given by Mr Heng under cross-examination further below.
44Mr Heng then deposed as to his family situation and financial responsibilities both in Australia and as the eldest son of his parents, who reside in Cambodia.
45He deposed that he had not informed his parents of his business collapse nor about these proceedings. He feared that his parents health would suffer should a term of imprisonment be imposed on him for these contempts.
46Mr Heng then deposed to his financial circumstances, in very short compass.
47He said:
“My current financial situation is difficult.
I currently receive some income from renting out a former office building in Dandenong South, which is owned by SLH Industries Investments. I also work as a consultant for other companies in the asbestos and demolition industries. However, this consulting work is irregular and my income varies month to month. It is not enough to fully support my family, and I have needed to ask my brother in Cambodia for financial help.”
48Mr Heng exhibited to his affidavit a bank statement and transaction report for a Westpac Account in his personal name ending in 243 and a statement and transaction report for the NAB 446 Account. Neither of these showed any substantial credit balance.
49Apart from those documents, neither Mr Heng nor Ms Tit exhibited any documentary evidence to substantiate the assertions they made as to their financial position.
50Mr Heng did not produce a statement of assets and liabilities in a form that might be readily understood by the Court. Neither did he produce a statement of income and expenditure so as to assist the Court.
51This was the subject of correspondence between the parties. Rather than responding to the suggestion to produce these documents, Mr Heng’s counsel submitted that he was under no obligation to do so, and that this was not a further oral examination process. She submitted that some of the documents concerned had been provided to the plaintiffs earlier in the court process and that they were therefore informed of those relevant matters.
52I must say that this submission rather misses the point. Mr Heng asks the Court to take into account his financial circumstances when considering whether to impose a fine and in what amount. This is a proper submission to make. However, for the Court to do so, it must have evidence placed before it, and in a manner that would permit it to be satisfied of Mr Heng’s financial circumstances. It is insufficient for him to blandly assert his financial situation in the way he has done without providing supporting documentary evidence.
53For example, he said that he did some “consultancy” work but that it was irregular and varies from month to month. In his affidavit, he provided no documents to identify the work that he had done. He provided no detail of the amounts that he was paid. He provided no detail about how regular or irregular it was. It ought to be plain that the Court could properly draw no conclusion from this information as to how this consultancy work may or may not have contributed to his asserted difficult financial position.
54Mr Heng was extensively cross-examined about this, and his evidence was decidedly vague. The thrust of his evidence was that he was sometimes consulted about asbestos removal tenders to be lodged by contacts of his who shared his Cambodian background. If they won the tender and the job turned out to be profitable, they might give him some cash in an envelope “from their heart” as a “thank you” to him. The amount they gave him was entirely at their discretion. He said that this was how things were done in Cambodian culture. He was entirely unclear in his recollection about how much cash was in the envelopes he was given for this work and on how many occasions. He said that he did not pay the cash into a bank account, nor did he declare the income to the Australian Taxation Office. I found all of this evidence less than convincing for the purposes of laying a proper a foundation for the submission that his financial situation was difficult. I can draw no proper conclusions from it.
55Similarly, he deposed to receiving “some income” by way of rental from a building owned by a related trust in Dandenong. He did not depose to how much income that was. He did not inform the Court whether the income was net of expenses such as outgoings or land tax. He did not disclose whether that income was gross or net of income tax. In short, he did not place the Court in any position to conclude, as he urges, that the income earned left him in such a position that a fine would impact him heavily or otherwise.
56It was only under cross-examination that he explained to the Court that the income he received from this property was $5,000 per month.
57A further example is that Mr Heng did not disclose in his affidavit that he was not under any obligation to make repayments on the mortgage over his home residence. He explained under cross-examination that the mortgage liability had been paid out by a company (Delta) which had given him substantial work before the collapse of his business, and the mortgage was assigned to Delta. While he continued to be liable to Delta for the principal sum, he was not required to make monthly repayments. So it appears that Mr Heng’s financial position is decidedly better than might have been supposed. He is not required to make repayments on a mortgage or pay rent for his family’s residence.
58I consider this to be a highly relevant matter to be considered in understanding his overall financial situation. He should have disclosed this to the Court in a clear and comprehensible fashion.
59I mention two final matters. There are 2 properties held in a trust controlled by Mr Heng and/or Ms Tit. Mr Heng put forward the trusts’ financial position so as to be considered in the family’s overall financial circumstances.
60First, he asserted in cross-examination that his house property was worth more than $4.0 million and that his liability to Delta on the mortgage over that property was $1.8 million. This suggests that the trust controls an asset with $2.2 million of equity. This was not made clear in his affidavit. It bears on the question of his overall ability to pay a fine.
61Second, the trust also owns the property in Dandenong. Mr Heng did not depose to the property’s value nor to the extent of any liability owed to any lender secured against it. It too bears on the question of his overall ability to pay a fine.
62Under those circumstances, Mr Heng did not place before the Court a full picture of his assets and liabilities so as to be able to draw any conclusions about the effect a fine may have on him.
63His Counsel made a very strong submission that he was under no obligation to do so. I reject that submission. Mr Heng asks the Court to accept that a fine would be burdensome upon him because of his difficult financial position. It was incumbent upon him to be full and frank with the Court and to place before it a complete picture of his financial situation. I do not accept that he did so.
64I conclude that I am unable to draw any conclusion as to the effect that a fine would have on him.
65Ms Tit’s evidence as to the family’s financial position was similarly unilluminating. In four short paragraphs she deposed that she was financially dependent on Mr Heng.
66Under cross-examination it was revealed that she was the controller of SSA Property Investments Pty Ltd. She professed to not recall whether that company owned a property at 2 Farquharson St, Mount Waverley, however she accepted that it had been sold in June 2023. She said that she could not recall that it had been sold for $4.8 million but thought that the full amount had been taken by the bank. She made no reference to this in her affidavit nor did she produce any documents in relation to it. Without some documentary support I am unable to draw any conclusions about how the property proceeds may have contributed to the financial position of the family. I am certainly unable to conclude that none of the proceeds of sale were returned to the family.
67Under cross-examination she agreed that SSA Property also owned a property at 61 High Stret, Cabramatta West which was sold on 31 May 2025 for $1.21 million. Ms Tit agreed that she had entered into the contract of sale. She also agreed that there was a mortgage over the property and 2 caveats for loans that she had transacted. None of this was revealed in her affidavit nor were any supporting documents provided.
68Given these matters, the Court cannot accept Ms Tit’s evidence as to her financial circumstances and the financial circumstances of her family.
69There were other matters raised in the evidence and submissions as to this matter that I do not canvass here. They do not alter the conclusions that I have just expressed.
70Returning to Mr Heng’s affidavit, he then deposed to what he saw as the impact that a sentence of imprisonment would have on him. He particularly emphasised the cultural role that the shame of imprisonment would have and the effect of that on his family. He also deposed to the effect this would have on his wife and her caregiving responsibilities for their son Henry. He is concerned that her traumatic past, her physical infirmities and her limited English language ability will cause additional burden if he is unable to be at home to care for them.
71Mr Heng then deposed to his past good character, charitable contributions and works, and to a character reference provided by Sokhum Khun, President of the Khmer Temple, Watt Preah Mean Chey Association.
72Finally, Mr Heng has offered to pay the sum of $200,000 to Ms Kith on account of her legal fees to “show my good faith and regret”. He can pay this sum in two tranches of $100,000 each at 90 day intervals. The money will be borrowed from his brother.
73The plaintiff submitted that the Court should make an order in those terms as a gross sum costs order that Mr Heng pay Ms Kith’s indemnity costs of the oral examination and of the contempt proceedings.
74I will make an order in those terms.
75Mr Heng also deposed to his willingness to accept alternative sanctions to imprisonment.
76Ms Tit also deposed to her general reliance of Mr Heng as her only family, her own health issues, her care responsibilities for their son Henry, her limited driving capacities, and her emotional support from Mr Heng. She deposed that if he was imprisoned this would have a substantial impact on her and their son.
Civil or criminal: were the contempts contumacious?
77As noted above, the distinction between criminal and civil contempt has lost much of its significance. It does however continue to have relevance when dealing with the imposition of a penalty.[30]
[30]Australian Prudential Regulation Authority v Siminton (No 3) [2006] FCA 397 at [10].
78Prior to determining any penalty, I will first deal with whether the contempts can be characterised as civil contempts, or if they were contumacious and therefore amount to criminal contempts.
79Counsel for the plaintiff, Ms Jager, submitted that Mr Heng’s conduct was contumacious, in that it was deliberately defiant and characterised by obstinate resistance to the Court’s authority. The plaintiff submitted that Mr Heng engaged in a persistent and deliberate pattern of non-compliance with court orders which frustrated the Court process and Mrs Kith’s efforts to enforce her judgment for a significant period of time. The plaintiff noted that, at all times throughout the examination and orders for production process, Mr Heng was legally represented and, by inference, must have understood the effect of the court’s orders and the consequences of disobeying them. As such, the plaintiff submits that Mr Heng’s conduct ought to be characterised as contumacious, and therefore criminal.
80Counsel for Mr Heng, Ms Murphy, submitted that the Court should not find beyond reasonable doubt that the contempts involved perverse obstinate resistance to authority, or that the conduct has any other features elevating it to the level of contumacious non-compliance. Ms Murphy submits that Mr Heng’s conduct was not engaged in with full understanding owing to his incomplete understanding and distrust of the judicial system in Australia.
81Ms Murphy also submitted that the substantial purpose of the contempt proceedings was to compel obedience, which points to civil rather than criminal contempt. She noted that the commencement of the contempt proceedings prompted Mr Heng’s compliance with the orders relating to the production of bank statements for NAB 053 and NAB 446 accounts. Ms Murphy submitted that the plaintiff’s communication on 24 June 2025 (that she continues to press for Mr Heng to discover documents relating to his financial position) demonstrates ongoing attempts at enforcement, and points to civil rather than criminal contempt.
82As previously discussed, in an affidavit affirmed by him at the penalty phase of this proceeding, he deposed:
I do not wish to try to excuse my actions. I do want to explain something about how my background affected me, however. In Cambodia, unfortunately the court system is not widely trusted. Many people view it as corrupt, and court decisions are often believed to be subject to political or financial influence. Growing up in such a system affected how I initially perceived the court process here in Australia. I realise how wrong and naive that view was. I should have understood the importance of full compliance with Court orders from the beginning. I accept full responsibility for my failure.
83By contrast the plaintiff submitted that this passage, when considered in the context of the findings already made by the Court, is demonstrative of deliberate defiance, based on the mistrust of the Court process which Mr Heng now acknowledges is misplaced.
84Mr Heng also deposed that:
I have read the Court’s 11 April 2025 judgement and findings. I accept them entirely.
85At the Penalty Hearing, Mr Heng was cross-examined. During the course of that cross-examination:
(a) he accepted that the reason that he did not produce the statements on the NAB 053 Account was that he did not want to reveal the existence of that account and wanted to hide that bank account from the plaintiff and from the Court;
(b) he was more equivocal about whether his reason for not producing the NAB 446 Account statements was that he wanted to hide its existence. At first he agreed that he wanted to hide its existence from Ms Kith saying “Yes. I was wrong.” When asked whether he also sought to hide its existence from the Court he said “Yes. I accept that. But I didn’t mean to hide it. I accept that.” He was pressed that the reason he did not reveal the statements on the NAB 446 Account was to hide this account from the Court. He said “I didn't try hard enough. When I found out – I provide. I was wrong. I accept that.”
86I have no hesitation in concluding beyond reasonable doubt that Mr Heng’s failure to have produced the statements on those accounts was done in deliberate defiance of the Court’s orders that he do so and in the knowledge that he was obliged to produce them. As a consequence, I find that he committed the contempts of court contumaciously and that they are therefore criminal in nature.
87I reach this conclusion based on several matters.
88First, Mr Heng produced statements on some bank accounts but not others. In other words he was selective in what he produced. He cannot fall back on some general position that he did not know that the effect of the orders was that he was obliged to produce statements for these accounts.
89Secondly, I found in the Contempt Reasons that Mr Heng’s failure to have produced statements for these accounts was done when he was at all time aware of the existence of these accounts and that he was capable of downloading statements for each of them himself.
90Thirdly, I also found that during the course of his non-compliance with the orders for production, he was heavily transacting on the NAB 053 Account.
(a) In that period the NAB 053 Account recorded total credits of $1,287,592.91 and total debits of $1,315,104.47.
(b) In that period the NAB 053 Account recorded 696 online transaction and 781 “Linked Account Transactions”.
91In respect of the NAB 446 Account in the Contempt Reasons I said:
“[206]I have found that Heng’s explanation for not producing these accounts was implausible. Having regard to Heng’s obvious knowledge of the business and legal structures of his own affairs including of this trust, its trustee and its bank accounts, I am comfortably satisfied beyond reasonable doubt that Mr Heng’s failure to have produced statements for the NAB 446 account for the period 1 July 2018 to 1 December 2021 on 13 December 2021 was wilful and deliberate…”
92Fourthly, to the extent that he did not produce statements on these accounts I infer that he did not do so as these were the accounts that he was using to transact for his own purposes, and he wished to continue to do so.
93Fifthly, Mr Heng made the concession in respect of NAB 053 Account that the reason he did not produce statements was that he wanted to hide the account’s existence from the plaintiff and from the Court.
94Although he baulked at making the same concession in respect of the NAB 446 Account, I have no hesitation in concluding that he also wanted to hide the existence of that account from the plaintiff and from the court.
95This conclusion flows naturally from his concessions in respect of the NAB 053 Account and I can see no reason to treat it any differently.
96Sixthly, I am acutely conscious of the fact that Mr Heng was ordered to produce statements on the NAB 053 Account on six occasions and on the NAB 446 Account on two occasions. He had many opportunities to consider, upon legal advice, what documents he would produce in response to those orders. In this context, his selective non-production was not simply an isolated act that transgressed a single court order. It was rather a sustained and concerted course of conduct in defiance of court orders that extended over almost three years.[31] It was done over that period of time with the admitted intention to hide the accounts’ existence from the plaintiff and from the Court during the course of which he was heavily transacting upon them.
[31] Noting that the statements were ultimately produced on 15 November 2024.
97Seventhly, I reject Ms Murphy’s submission that Mr Heng’s failure to have provided the statements was due to an incomplete understanding of the Court process. Ms Murphy placed heavy reliance on Mr Heng’s background understanding of the court processes in Cambodia leading him to be mistrustful of the Court process in Australia. Ms Murphy submits that this goes some way to explaining why Mr Heng behaved as he did. This is a difficult submission to maintain. I note that Mr Heng was legally represented throughout the process by which he was ordered to produce documents. The documents that he did produce were produced through his lawyers. It was not suggested that he could not or did not obtain from his lawyers full advice as to his obligations under the orders and of the consequences of non-compliance. He produced some documents in response to the orders but not others. In the Contempt Reasons I rejected the explanations that he did give for not producing the documents and found the non-productions were deliberate. Mr Heng has deposed that he accepts those findings in their entirety. This leaves no room for an argument such as that advanced.
98Eighthly, the fact that the plaintiff filed the contempt summons on 30 September 2024 which prompted Mr Heng to promptly produce the documents required of him (on 15 November 2024) points to his prior non-production being strategic and calculated. In other words, he withheld production of those statements until it became clear that he faced potentially criminal sanctions for this conduct and then, in the face of those consequences, determined to produce them.
99Ms Murphy submitted that in this case, the contempt proceeding was brought to compel obedience to the Court’s orders rather than to punish Mr Heng for his past breaches of them. She therefore submitted that the contempts found should be classified as civil rather than criminal. I reject this submission.
100First, in the context of the long and protracted course of conduct by Mr Heng in which he engaged in deliberate non-compliance with the Court’s orders, I do not consider there to be a bright line between punishing him for past breaches (which were ongoing at the time of commencement of the contempt application) and compelling compliance with the production orders. It is not lost on me that by hiding the existence of the accounts concerned for so long, Mr Heng effectively rendered the disclosure of them practically ineffective as an enforcement measure than might have been the case had he complied when first ordered to do so. By the time that the contempt application was issued, the purpose of punishing Mr Heng for his past breaches was likely the primary purpose of the application.
101Secondly, Ms Murphy rightly conceded that contumacious conduct need not be alleged in a contempt by disobedience to court orders, but may arise following a finding of guilt, at the penalty phase as an aggravating factor.[32] In this way, what may commence as a civil contempt may, upon findings of the attendant circumstances involving contumacy, become a criminal contempt.
[32] See Grocon at [299].
102Thirdly, the authorities suggest that the classification of a contempt as criminal or civil will depend on the quality of the conduct as found. So for example, Bisognin (No 2)[33] set out two circumstances which mark out a contempt as criminal: where the conduct is contumacious, or, where the purpose is punitive rather than to compel compliance with court orders. These circumstances are alternatives. I have found the conduct to have been done contumaciously and that is enough for the contempts to be classified as criminal.
[33] See extract at paragraph 19 above.
103I adopt and adapt the dicta of John Dixon J in Jenson[34] in characterising Mr Heng’s conduct in this case. Mr Heng’s “wilful breach may be considered contumacious … [as he knew] the breach … [was] prohibited and ha[d] no reasonable belief that it c[ould] be excused; the breach involves perverse or obstinate resistance to authority; … there is a direct intention to disobey the order. The breach … [was] both wilful and calculated, in the sense of ‘likely’, to interfere with the course of justice. It … [was] a deliberate determination to defy the court.”
[34] See extract at paragraph 22 above.
104Ms Murphy made a final submission that because further documents were sought by the plaintiff by email dated 24 June 2025, this suggests that the dominant purpose of the contempt summons was to compel compliance with court orders. This submission ignores that at paragraph [48] of his affidavit filed in the penalty phase, Mr Heng deposed that he was “willing to provide to the plaintiff or file with the court any further documents that would give assurance that this is a complete set of records.” This paragraph followed a number of paragraphs where Mr Heng deposed to his “current financial position.” The email of 24 June 2025 was written expressly in response to that paragraph. Under those circumstances, the email was written seeking documents to enable the plaintiff to test Mr Heng’s deposed “current financial position.” It does not demonstrate that the contempt application was intended to compel compliance with court orders.
Consideration of factors relevant to sentence
The nature and circumstances of the contempt
105I determined in the Contempt Reasons that Mr Heng had deliberately and wilfully committed each of the 11 charges of contempt. The circumstances in which I made those determinations is explained in the Contempt Reasons. Those reasons should be read together with these reasons.
106On 21 June 2021, the Court entered judgment against the defendants in favour of Ms Kith in the sums of US$1,397,000 and AU$15,205.48.
107On 27 January 2022, Mr Heng paid $459,363.70 or US$302,123.51 to Ms Kith in part payment of the judgment debt. No further payments have been made to satisfy the judgment debt.
108The plaintiff says that in order to seek information regarding the defendants’ capacity to pay the judgment debt, the relevant orders were made for the production of a range of documents.
109Of the plaintiff’s charges of contempt, the 11 proven contempts relate to the non-production of statements concerning two NAB accounts, one in Mr Heng’s personal name (NAB 053) and one in the name of SLH Industries Investments Pty Ltd (NAB 446). Despite Mr Heng being bound by orders to produce these documents, he failed to do so until after the plaintiff had filed its summons for contempt.
110The plaintiff says that the duration of non-compliance is of importance. Relying on the Court in Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 3),[35] she says that it was not the case that Mr Heng had a “momentary lapse”, but rather that he had “plenty of time to reflect on what he would do in answer to the orders. Even after the time for compliance had expired, he had plenty of further time to decide whether to comply, even if belatedly”.[36]
[35]([2019] NSWSC 511 at [39].
[36]Ibid at [39].
111Ms Jager submitted that despite the time afforded to him, Mr Heng made a deliberate decision not to remedy his compliance and disclose the NAB 053 and NAB 446 accounts until after being charged with contempt by the plaintiff.
112Ms Jager noted that the duration of Mr Heng’s non-production was nearly three years in relation to NAB 053, and two years and six months in relation to NAB 446.
113Ms Murphy submitted that the conduct is not at the most serious end of the scale of contempts. She said that the contempts must be considered in light of the fact that any proven contempt will involve deliberate and wilful non-compliance with Court orders.
114Mr Heng further submits that this case can be distinguished from cases where the contempt was committed in a public display of defiance. He also submits that he has engaged with the contempt proceeding and has not fled the jurisdiction as in other cases. He also drew a distinction between this case and others involving, for example, failing to discharge a public office.
115The authorities note that each contempt will be intensively fact specific and therefore comparison with other cases is of limited utility.[37] What is required is a close consideration of the facts of the instant case and a measured approach to determining its seriousness.
[37]See for example, the authorities stated at paragraph 17.
116Contrary to Mr Heng’s submissions, consider Mr Heng’s conduct to be at or near the most serious end of the spectrum for this species of contempt, as to which see paragraph [119] below.
117I note here that I have already found the 11 counts of contempt to have been committed by Mr Heng both wilfully and deliberately, and have determined above that his conduct has risen to criminal contempt.
118During the Liability Hearing, it was agreed between the parties that during the period commencing on the date he was first ordered to produce statements for NAB 053 (30 November 2021) to the closure of that account in August 2023, the account recorded total credits of $1,287,592.91 and total debits of $1,315,104.47. That is to say, during the period that he was supposed to have produced these statements but had not, Mr Heng was transacting heavily on the account for his own purposes.
119To be clear, the nature of this contempt is that of a judgment debtor failing to disclose (in truth, in this case, actively concealing) documents ordered to be produced in order to shed light on his financial affairs so as to enable the judgment creditor to effectually execute on their judgment.
120The fact that this occurs in the context of a commercial dispute is no less serious than any other species of contempt of court.
121Commerce depends on parties abiding by their bargains. It also depends on commercial actors being able to bring their disputes to a court to be determined according to law. Once a court has determined a dispute, commerce also depends on parties abiding by the judgment passed. When a judgment involves the payment of money, parties must either pay the judgment sum or disclose all of their financial affairs so as to permit the judgment creditor to utilise the court processes to enforce payment. For this purpose, the Court has processes to enforce disclosure of documents that touch on the judgment debtor’s financial affairs.
122When a judgment debtor, despite orders having been made to disclose documents, discloses some but not all of the documents ordered, the entire purpose of the court process is undermined. When the judgment debtor selectively discloses documents, but conceals bank statements for accounts through which monies are coming in and going out, the judgment creditor is deprived of the ability to effectively execute on their judgment.
123If that conduct is permitted to occur, parties engaged in commerce would have no reason to resort to law to determine their disputes. They would not expend legal costs to enforce their rights. This would present an impediment to the conduct of commerce which underpins the welfare of citizens in society.
124Mr Heng’s conduct in this case demonstrates his conscious decision to conceal the bank statements on the accounts which he was actively transacting upon. He accepted that he wanted to conceal these from Ms Kith and from the Court (in one case) and I conclude also in respect of the other. To the extent that he accepted that he sought to conceal these bank accounts from Ms Kith, I can only conclude that he did this with the intention of benefitting himself and harming her interest in enforcing her judgment. He did this over an extended period of time. He did this at a time that he was receiving legal advice about meeting the production orders. He did this despite multiple orders for production having been made.
125For all of those reasons I consider the conduct to be most serious.
The contempts are not ongoing
126Ms Murphy submits that Mr Heng “purged the contempt to the extent that he was able” by producing the documents before findings on liability were made.
127While this is so and is a matter to be taken into account in mitigation, I refer to my comments at paragraph 98 above that the production of the documents so soon after commencement of the contempt proceeding highlights the strategic nature of the conduct as a whole, including the late production of the documents.
The actual consequences of the contempt; the contemnor has received, or sought to receive, a benefit or gain from the contempt
128I have discussed above the effect of Mr Heng’s conduct in concealing the existence of the bank accounts and continuing to transact heavily on them.
129This was to the detriment of Ms Kith in attempting to execute on her judgment. Had the documents been disclosed as required, she may have sought and obtained freezing orders in respect of the accounts and ultimately orders that some of the funds standing to the credit of the accounts from time to time, be paid out to her. She was unable to do any of this.
130As I discussed above I am unable to conclude, as Mr Heng urges, that he only obtained a limited benefit from the conduct. He has not provided supporting documents for the assertion that most of the funds that went through the accounts was used to pay workers, invoices, suppliers and company debts. He concedes that he did use some of those funds for his own purposes. I am unable to reach any conclusion as to how extensive this was. As a consequence this is not a mitigatory circumstance.
The second defendant’s personal circumstances, antecedents and financial means
131Mr Heng has deposed to his background, his family circumstances and his financial circumstances.
132I accept that he has substantial commitments to support his family. This includes his wife Ms Tit who has health issues and limited facility in the English language. I also accept that he has responsibilities for the care of his son, Henry and his other children.
133I accept the submission that his family would bear a burden if he were sentenced to a term of imprisonment.
134I note that Mr Heng has not previously been convicted of contempt of court.
135As to Mr Heng’s financial circumstances, as I have discussed this above, I am unable to be satisfied as to the true state of his financial means and therefore the burden that a fine would impose on him.
136To the extent that Mr Heng relies on a previous donation he has made to a Khmer Temple in 2018 and a reference from Mr Khun, I take these matters into account.
The second defendant’s culpability and reasons for his conduct
137For the reasons given above in paragraphs 77 to 104 I consider Mr Heng’s culpability to be very high.
138His reasons for committing the contempts were to frustrate Ms Kith’s attempts to utilise this Court’s processes to execute on her judgment. Mr Heng did not produce the bank statements because he wanted to conceal their existence from Ms Kith and from the Court. He did this knowingly and a time that he was heavily transacting on those accounts. Only when he was faced with the prospect of criminal sanctions did he produce them.
General contrition and apology
139Mr Heng has made fulsome apologies in his affidavit filed on the penalty hearing and from the witness box. He has apologised to the Court and to Ms Kith. He has also offered to make payment to Ms Kith of an amount of $200,000 towards her costs.
140He has also offered to give any undertakings required and to serve a community service order.
141While I will take all of these matters into account, I do note that the apology and professions of contrition were made very late in the process and only after he gave an account of the reasons for his non-production in the Liability Hearing that I have found to be lacking in credibility and rejected. The apology was proffered after a persistent course of conduct that had substantial effects on Ms Kith and subverted the administration of justice. It was made only after he contested the plaintiff’s summons, and after having been found guilty of 11 acts of contempt.
142The plaintiff submitted that Mr Heng has only proffered his apology after having been “caught”, and after he has obtained the benefit of his contemptuous conduct. I agree. This devalues the effect of the apology and professions of contrition.
The effect of the contempt on the administration of justice
143The plaintiff submitted that Mr Heng’s conduct has had the effect of subverting the authority of the Court, especially when characterised as persistent, deliberate defiance of the orders of the Court.
144In Witham v Holloway,[38] the High Court stated that (emphasis added):
“All orders, whether they be Mareva injunctions, injunctions relating to the subject matter of the suit, or, simply, procedural orders, are made in the interests of justice. Non-compliance necessarily constitutes an interference with the administration of justice even if the position can be remedied as between the parties.”
[38](1995) 183 CLR 525 at 532.
145In Pelechowski v The Registrar, Court of Appeal[39] McHugh J observed:
‘if breaches of court orders were regarded as of little moment, respect for and observance of the law would inevitably deteriorate and, ultimately, pose a threat to social order.’
[39](1998) 198 CLR 435 at 463 at [88].
146Orders for production of documents are commonly made by the courts in order to allow a party to enforce the judgment debt awarded to them. If such orders were seen as being able to be flouted without recourse, the ability of the Court to effectively administer justice would collapse.
147It cannot be allowed that a party only produces documents once they have been prosecuted for contempt.
148That Mr Heng’s conduct continued for so long and that the Court was required to make six sets of orders to attempt to compel the production of these bank statements, all to no avail, demonstrates just how serious an assault on the administration of justice Mr Heng’s conduct was.
149The administration of justice would be quite undermined if the course of conduct that Mr Heng adopted became systemic.[40]
[40]Thunder Studios Inc (California) v Kazal (No 2) [2017] FCA 202 at [4]-[5].
Specific deterrence, general deterrence and denunciation
150The plaintiff submitted that both general and specific deterrence are relevant factors. They say that a contemnor must be discouraged from committing further contempts, and the Court must also “set an example which will uphold the court’s authority to deter others from disobedience”.[41]
[41]Reliance at [35].
151The plaintiff relied upon the following passage from Reliance,[42] which I adopt:
Vindication of the Court's authority is no less important in a commercial list case, such as this one, than in other proceedings in this Court. The flow of commerce depends upon the fact that in the overwhelming majority of transactions, business people respect each other's legal rights, including rights of ownership of property. … [the contemnor] must accept that those commercial operations depended ultimately on the existence of a system of justice to determine disputes, and, in doing so, to decide disputed questions of ownership and legal right. As I have said, that system can only function if those within the commercial community accept the decisions of the courts, even when they go against them, and adhere to those decisions, whether they like them or not.
[42]Ibid at [44].
152Ms Murphy submitted that the need for specific deterrence is low, owing to the fact that the Court should find it is unlikely Mr Heng would engage in similar conduct again, and that he has “purged the contempts, offered compensation for the plaintiff’s legal costs and apologised personally to the plaintiff and to the Court”. She accepted that general deterrence is a relevant factor, but submitted that it could be achieved with a fine or a suspended sentence.
153I consider that specific deterrence remains a relevant factor in this case. I say this because of Mr Heng’s conduct in putting forward, on affirmation before this Court in the Liability Hearing, reasons for the non-production of the account statements which I have found to lack credibility and rejected.
154It appears to me that rather than giving a fulsome and honest account of how and why it was that he did not produce the documents when ordered, Mr Heng took a chance that his false story as to what occurred might be accepted by the Court and thereby he would avoid the consequences of his persistent non-compliance with orders for production. This suggests that even at that late stage he did not fully accept the consequences of his actions, nor the authority of the Court.
155His conduct in total must be denounced by the Court in the strongest possible terms. Mr Heng has flouted the authority of the Court in its orders requiring him to produce documents. He did this in order to undermine its ability to give full effect to its judgment that he pay a very substantial sum of money to Ms Kith.
156General deterrence in this case also looms very large. Parties to commercial disputes must understand that when orders are made by the courts, they must be complied with. They must also understand that if they are not complied with the wrongdoers will be held to account. When orders are not complied with for the purpose of undermining the court’s ability to give full effect to its judgments, the penalty that the court will impose will be heavy.
Penalty
157In considering the appropriate sentence I have taken into account all of the matters referred to above.
158I have considered the mitigating circumstances that Mr Heng has referred to including his family circumstances, his antecedents and the apology that he has offered. I have also taken into account his offer to pay Ms Kith’s costs in a fixed sum of $200,000. For the reasons discussed above, I have been unable to reach a view on the extent to which a fine would be burdensome on him. However, if I considered a fine to be the appropriate sentence, this would not prevent me from ordering one. I have considered the fact that he has not fled the jurisdiction and has participated in the contempt process. This must be tempered by the fact that he put forward a false narrative at the liability phase of this proceeding. I have taken into account that he has produced the documents concerned – but only after the contempt proceeding was commenced and after any credit balance in the accounts had been entirely dissipated.
159Mr Heng annexed to his Opening Submissions on the Penalty Hearing a table of sentences imposed by courts in other contempt matters. Ms Kith’s counsel did not take issue with the table. I have taken it into account.
160In R v Murray[43] Riordan J pointed to the difficulties in relying on sentences imposed in other cases:
…‘because the circumstances are incidentally variable as is the impact of different contempts upon the court process’. Further, ‘[i]n fact, as in theory, each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed.’ Comparable cases establishing a range do not fix ‘the boundaries within which future judges must, or even ought, to sentence’, but may serve as a ‘yardstick’ useful to ‘illustrate (although not define) the possible range of sentences available.’[44]
(citations omitted)
[43] [2018] VSC 133.
[44] Ibid [47].
161As observed by Riordan J in the passage just quoted, none of the matters in Mr Heng’s table is a direct analogue to the facts of this case.
162One case that bears some similarities to this is Fahey v Bird (No.2) [2023] VSC 540 in that it concerned a failure by an executor to have produced administration accounts for the estate he was administering. The similarity lies in that this was a case of failing to produce documents ordered by the court. There were distinct differences in that the contemnor ultimately pleaded guilty, the contempts were continuing and the contemnor was occupying a public office. The Court sentenced the contemnor to 4 months imprisonment to be suspended on condition that the accounts were produced within 28 days.
163In the very recent decision of SeaRoad Shipping Pty Ltd v Pannell & Ors (No 2) [2025] VSC 448 Watson J dealt with a breach of freezing orders in which the contemnor failed to file an affidavit as to his assets and disposed of assets subject to the freezing order. The contemnor pleaded guilty to contempt. Watson J imposed a sentence of 2 weeks imprisonment for each of the charges of failing to provide an affidavit of assets to be served concurrently with a sentence of 11 weeks imprisonment for disposal of the assets.
164As I have indicated above, I consider Mr Heng’s contempts to be most serious. In order to serve the purposes of specific and general deterrence and to properly denounce his conduct I consider that nothing short of a sentence of imprisonment would be adequate. I do not consider that suspending any sentence of imprisonment sufficiently responds to the gravity of the offences. Neither do I consider that a fine or an order to perform community service would do so.
165When passing sentence I am conscious of the fact that in respect of NAB 053 Account, charges 1, 5, 8 and 11, all concern categories of documents ordered in the 5 November 2021 orders. As such, and properly understood, Mr Heng’s failure to have produced them really concerned one act of non-production that responded to several different categories in those orders.
166This is to be contrasted with charges 14, 17, 30, 42 and 43 which were each the subject of orders made on different dates and were therefore independent and separate acts of non-production.
167I also note that the breaches under charges 14 and 17, for the NAB 446 Account documents, were also breaches of orders made on the same dates as for other breaches which concerned the NAB 053 Account. I will take this commonality of orders into account when sentencing.
168Taking into account all of the above matters Mr Heng is guilty of the 11 charges of contempt of court, convictions will be recorded for each contempt and I sentence him as follows:
(a) On charge 1 to 2 weeks of imprisonment;
(b) On charge 5 to 2 weeks of imprisonment;
(c) On charge 8 to 2 weeks of imprisonment;
(d) On charge 11 to 2 weeks of imprisonment;
(e) On charge 14 to 2 weeks of imprisonment;
(f) On charge 17 to 2 weeks of imprisonment;
(g) On charge 30 to 2 weeks of imprisonment;
(h) On charge 42 to 2 weeks of imprisonment;
(i) On charge 43 to 2 weeks of imprisonment
(j) On charge 14 to 2 weeks of imprisonment; and
(k) On charge 17 to 2 weeks of imprisonment.
169I consider that a term of less than 2 weeks imprisonment for any of the charges would not adequately reflect the gravity of each individual offence.
170Insofar as each of Mr Heng’s failures to have produced the documents was a separate act done at a separate time and over a long period of time, in defiance of each of the 6 sets of orders, I consider that, subject to what follows, the terms of imprisonment should be served cumulatively.
171As I noted above, charges 1, 5, 8 and 11 related to different categories of one set of orders. Accordingly, I will order the sentences of imprisonment to be served for charges 5, 8 and 11 to be served concurrently with that for charge 1.
172As I have also noted above, as the breaches in respect of the NAB 446 Account (charges 14 and 17) and those in respect of the NAB 553 Account (the balance of the charges) were committed in respect of the same sets of orders as were breached by the balance of the charges, the terms of imprisonment in paragraph (g) and (h) should be served concurrently with those in paragraph (a) to (f).
173Notwithstanding the sentences that I have fixed for each of the charges (which properly reflects the gravity of each of those offences) I consider that the totality principle[45] requires that I fix an overall sentence of 10 weeks imprisonment to properly reflect the degree of gravity of the offending as a whole. For that reason I will also order that the sentence in respect of charge 43 set out in (f) above be served concurrently with the sentences in paragraphs (a) to (e).
[45] R v Holder & Johnston [1983] 3 NSWLR 245; R v Visconti [1982] 2 NSWLR 104.
Costs
174I refer to paragraphs 72 to 74 above and will make orders in those terms.
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Certificate
I certify that these 37 pages are a true copy of the judgment of His Honour Judge Wise delivered on 21 August 2025.
Dated: 21 August 2025
Liam Crough
Associate to His Honour Judge Wise.
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