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Livingspring Pty Ltd v Ng

Livingspring Pty Ltd v Ng

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Case Copied 5 February 2007 47 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. 2001 of 2004

LIVINGSPRING PTY LTD & ORS	Plaintiffs
v
CHRIS HAKTOH NG & ORS	Defendants

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	13-16 June 2006 and 24-25 July 2006 (Further written submissions received 1 and 2 August 2006)
DATE OF JUDGMENT:	5 February 2007
CASE MAY BE CITED AS:	Livingspring Pty Ltd & Ors v Ng & Ors
MEDIUM NEUTRAL CITATION:	[2007] VSC 9

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Contempt of court – Alleged breaches of undertakings and orders restraining defendants from “dissipating” assets – Whether undertakings and orders clear and unambiguous – Whether any breach wilful and contumacious – Alleged breaches of order for disclosure of assets and liabilities - Whether misstatements in affidavits amounted to contempt - Supreme Court (General Civil Procedure) Rules 2005, r 75.06.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S K Wilson QC with Mr S Rubenstein	Hambros & Cahill Lawyers
For the 1^st, 10^th, 14^th and 16^th Defendants	Mr P Almond QC with Mr A Hanak	Arnold Bloch Leibler
For the 2^nd and 22^nd Defendants	Mr R Heath	Schetzer Brott & Appel Solicitors

HIS HONOUR:

Overview

This is a ruling on an application brought by the plaintiffs under r 75.06 of the Supreme Court (General Civil Procedure) Rules 2005 for orders that certain of the defendants be dealt with for contempt of court for alleged breaches of temporary undertakings given to the Court and of interlocutory orders made by the Court. Speaking generally, the undertakings were expressed to restrict certain specified dealings in the defendants’ assets. The orders, which were made later, continued and modified those restrictions and also required the defendants to make certain disclosures about their assets and liabilities by affidavit.

As to the alleged breaches constituted by dealings with the defendants’ assets, it is common ground for the most part that the impugned transactions occurred, although in some cases it was not conceded that the particular defendant charged was involved in or responsible for the transactions. The transactions were transfers of funds, transfers of shares, withdrawals from bank accounts and, in one group of cases, dealings relating to a mortgage and sale of a particular piece of land. However, except in relation to one charge, there is a large issue as to whether the impugned transactions were covered by the terms of the undertakings and orders. The defendants say that the restraints are relevantly ambiguous and cannot support the contempt charges. Various other points of defence were taken as well.

As to the disclosure requirements, it is admitted that affidavits were filed that contained certain misstatements. However it is not admitted that these were deliberate and in any event it is submitted that what occurred could not in law amount to contempt of court.

In every case there is an issue as to the degree of gravity of the contempt if, any.

The plaintiffs are companies associated with Dr Tiow…

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.

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Details

Case: [2007] VSC 9
Decision Date: 5 February 2007

CaseChat Overview and Summary

Livingspring Pty Ltd commenced proceedings against Ng, alleging breaches of undertakings and orders restraining Ng from dissipating assets, and breaches of a disclosure order. The case was heard in the Supreme Court of New South Wales. The primary dispute centred on whether Ng had wilfully and contumaciously breached the court's orders and undertakings, specifically those related to the dissipation of assets and disclosure of financial information.

The legal issues that the court was required to decide included whether the undertakings and orders were clear and unambiguous, and if Ng had intentionally violated them. Additionally, the court examined whether any misstatements in Ng's affidavits regarding his assets and liabilities constituted contempt of court. The court had to assess the nature of the breaches, if any, and whether they were deliberate or inadvertent.

The court found that the undertakings and orders were indeed clear and unambiguous, leaving little room for interpretation. It was determined that Ng had wilfully breached these orders by dissipating assets and providing misleading information in his affidavits. The court held that the breaches were not merely inadvertent or technical but were instead deliberate and intended to obstruct the proceedings. Consequently, the court found Ng in contempt of court. The court's decision emphasised the importance of strict compliance with court orders and undertakings, particularly in cases involving financial disclosures and asset preservation.

In its final orders, the court held Ng in contempt of court and ordered him to pay costs associated with the proceedings. The court also reiterated the importance of full and truthful disclosure in future proceedings.

Orders