Leung v Good Friend Development Pty Ltd - [2008] NSWSC 142

CITATION: Leung v Good Friend Development Pty Ltd [2008] NSWSC 142

HEARING DATE(S): 26/02/08

JUDGMENT DATE :
26 February 2008

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 26 February 2008

DECISION: Motion for punishment for contempt dismissed with costs

CATCHWORDS: PROCEDURE - contempt, attachment and sequestration - alleged breach of consent order requiring payments of money - where terms of order uncertain or ambiguous - resort to surrounding circumstances - no real clarification provided by surrounding circumstances - no alternative but to construe order according to its terms - motion dismissed

LEGISLATION CITED: Supreme Court Rules 1970, Part 55 rules 7, 9
Uniform Civil Procedure Rules 2002, rule 7 schedule 2, rule 40.7

CATEGORY: Principal judgment

CASES CITED: Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1
Kirkpatrick v Kotis (2004) 62 NSWLR 567
Leung v Good Friend Development Pty Ltd [2007] NSWSC 713
Rogers v Wentworth (NSWCA, unreported, 18 April 1988)

PARTIES: Pin Ko Leung - First Plaintiff
Fook Cheung Leung - Second Plaintiff
Good Friend Development Pty Limited - First Defendant
Kim Hung Kwong (aka Sherman Kwong) - Second Defendant
Sandy Kwong (aka Wai Kwan Ng) - Third Defendant
Belinda Wong (aka Yuk Ling Belinda Wong - Fourth Defendant

FILE NUMBER(S): SC 2906/07

COUNSEL: Mr S Y Reuben - Plaintiffs
Mr G W McGrath - Defendants

SOLICITORS: Micah Legal Services - Plaintiffs
Ren Zhou Lawyers - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

TUESDAY 26 FEBRUARY 2008

2906/07 PIN KO LEUNG v GOOD FRIEND DEVELOPMENT
PTY LTD

JUDGMENT

1 The plaintiff in these proceedings seeks to have the first defendant, a company, adjudged guilty of contempt of court by reason of an alleged breach by it of an order made by the court on 1 June 2007.

2 On that day several orders were made by consent of the parties. Among them was an order directed to the first defendant, being order 4 in these terms:

“That the First Defendant be ordered to pay by 8 June 2007 the amount of $2,300 to loan number MN34.0021.001.30101.2551 held with Perpetual Trustees Victoria Limited on account of the Plaintiffs and to continue to make monthly payments of $2,300 to the said loan account on account of the Plaintiff on or before the 17th day of each calendar month or the banking business day prior to that date in each month until 5pm on 26 June 2007.”

3 It appears to be accepted that the first defendant made three payments to the nominated account, one of $2,150 on 7 June 2007, a second also of $2,150 on 18 June 2007, and a third of $300 on 22 February 2008.

4 The plaintiff's contempt application is made by a notice of motion filed on 18 December 2007. The statement of charge called for by Part 55 rule 7 of the Supreme Court Rules 1970 (which by virtue of rule 1.7 and schedule 2 of the Uniform Civil Procedure Rules 2005…

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 Leung v Good Friend Development Pty Ltd

Details

AGLC: Leung v Good Friend Development Pty Ltd [2008] NSWSC 142
Case: [2008] NSWSC 142
Decision Date: 26 February 2008

CaseChat Overview and Summary

The parties involved in this case are Leung and Good Friend Development Pty Ltd. The dispute pertains to an alleged breach of a consent order which required payments of money by Good Friend Development Pty Ltd to Leung. The case was heard in the Supreme Court of Queensland. The primary legal issue before the court was the interpretation of the terms of the consent order, which were found to be uncertain or ambiguous. The court had to decide whether the terms of the order were clear enough to be enforceable or if they needed further clarification.

The court considered the surrounding circumstances of the case, including any relevant evidence or documentation, to ascertain the meaning of the consent order. However, the surrounding circumstances did not provide any real clarification of the terms. Consequently, the court was left with no alternative but to construe the order according to its terms. The court held that the consent order was ambiguous and could not be enforced as written. As a result, the motion brought by Leung for a contempt order, attachment, and sequestration was dismissed.

In summary, the court found that the consent order was ambiguous and could not be enforced due to the uncertainty of its terms. The court dismissed the motion brought by Leung for a contempt order, attachment, and sequestration. The outcome of the case highlights the importance of drafting clear and unambiguous terms in consent orders to avoid potential disputes and legal challenges in the future.

Orders