Liu v Gan - [2024] VSC 566

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S ECI 2021 02993

IN THE MATTER of L&G CO PTY LTD (ACN 603 431 394)

BETWEEN:

YA LIU	Plaintiff
and
PING GAN	Defendant

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JUDGE:	M Osborne J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2024
DATE OF JUDGMENT:	4 October 2024
CASE MAY BE CITED AS:	Liu v Gan
MEDIUM NEUTRAL CITATION:	[2024] VSC 566

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PRACTICE AND PROCEDURE – Contempt of Court – Civil and criminal contempt – Whether defendant failed to comply with court orders by not correcting register of members of company and failing to provide financial records – Whether proven beyond reasonable doubt that defendant’s conduct was defiant or contumacious – Consideration of relevant principles – Breach of orders – Contempt established – Declarations and orders for indemnity costs sufficient recognition of the Court’s disapproval of the contemnor’s conduct – Quantum of costs to be fixed – Corporations Act 2001 (Cth) ss 175, 233 and 247A.

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APPEARANCES:	Solicitors
For the Plaintiff	C Tan / Solicitor	Wiin Lawyers
For the Defendant	Self-represented Litigant	Not Applicable

HIS HONOUR:

Introduction

This is an application by the plaintiff, Ya Liu (‘Ms Liu’), by amended summons, for orders pursuant to r 75.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) that the defendant, Ping Gan (‘Ms Gan’) be punished for contempt of court.

The contempt which is the subject of the amended summons is that Ms Gan breached orders made 18 February 2022, 10 March 2022 and 9 February 2024. The alleged breaches fall into two categories; first, a failure to correct the register of members of L & G Co Pty Ltd (‘the Company’) to record that Ms Liu is the holder of 49 shares in the Company (‘the Company Register Breach’) and secondly, that Ms Gan failed to provide Ms Liu’s solicitors by email with certain books of account and financial records of the Company or if she was unable to do so, provide an affidavit explaining why she was unable to do so (‘the Financial Records Breach’).

Ms Liu submits that the Company Register Breach is a criminal contempt whilst the Financial Records Breach is a civil contempt. She seeks declarations that Ms Gan is liable for the contempt alleged, an order that Ms Gan pay her costs of the application on an indemnity basis and submits that Ms Gan should be fined an amount determined by the Court.

At the hearing of the application, Ms Liu relied upon the following affidavits:

(a)Claire Tan affirmed 1 August 2024;
(b)Kathleen Ben Yair sworn 13 June 2024;
(c)Nuo Chen affirmed 24 June 2022;
(d)Yunfei Wu affirmed 14 December 2023;
(e)Claire Tan affirmed 2 May 2024;
(f)Ms Liu affirmed 2 May 2024;

as well as a bundle of documents set out in the tender bundle (‘the Tender Bundle’).[1]

[1]The Tender Bundle refers to the bundle of documents sent to M Osborne J’s chambers on 18 February 2022, comprising pages 1–54.

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 Liu v Gan

Details

AGLC: Liu v Gan [2024] VSC 566
Case: [2024] VSC 566
Decision Date: 4 October 2024

CaseChat Overview and Summary

Liu sued Gan for contempt of court. Liu was the liquidator of a company, and Gan was a former director. Liu sought to hold Gan in contempt for not complying with court orders. The orders required Gan to correct the company's register of members and provide financial records. Liu claimed that Gan’s failure to comply was defiant and contumacious. The court had to decide if Gan’s conduct was contemptuous and if it was proven beyond reasonable doubt. The court considered the principles of contempt and the breach of orders. It found that Gan’s conduct was indeed contemptuous because it was a deliberate refusal to follow the court’s orders. The court issued declarations that Gan had committed contempt and ordered him to pay indemnity costs. The exact amount of costs was left to be determined later.

Orders