Mead v Mead
[2004] NSWSC 691
•18 August 2004
CITATION: Mead v Mead & Anor [2004] NSWSC 691 revised - 18/08/2004 HEARING DATE(S): 8/9/03, 3/10/03, 23/10/03 JUDGMENT DATE:
18 August 2004JUDGMENT OF: Dowd J at 1 DECISION: Leave to file further amended summons and further amended statement of charge; timetable set; matter listed for directions; liberty to apply; plaintiff to have costs in the cause. CATCHWORDS: Contempt - application to vary - procedure CASES CITED: Spindler v Balog (1959) 76 WN (NSW) 391
Witham v Holloway (1995) 183 CLR 525PARTIES :
Colin Anthony Mead
Lucy Guitar Mead
Grace YangFILE NUMBER(S): SC 12311/03 COUNSEL: Plaintiff: Mr V Bedrossian
1st Defendant: -
2nd Defendant: -SOLICITORS: Plaintiff: Etheringtons Solicitors
1st Defendant: Ms D Riggio
2nd Defendant: Mr Ma
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DOWD J
Wednesday, 18 August 2004
JUDGMENT12311/03 Colin Anthony Mead v Lucy Guitar Mead and Grace Yang
1 DOWD J: The Plaintiff instituted proceedings by way of Notice of Motion filed on 4 September 2003, returnable after abridgment of service. Orders were made returnable on Monday, 8 September 2003.
2 The Notice of Motion sought orders for sequestration of the assets of both Defendants, and the filing of a verified list of assets and liabilities, and a verified account of the movement of assets transferred subsequent to the order of Mathews AJ of 19 March 2002, made by way of Mareva injunction in related proceedings #12674 of 1997, BL & GY International v Hypec Electronics Pty Ltd (in liq) & Ors. The Notice of Motion also sought that the First and Second Defendants pay into Court an amount of money equal to the value of assets dealt with since the orders of Mathews AJ, and an order that the First and Second Defendants be committed to a correctional facility.
3 At the time of filing of the Motion on 4 September 2003, the Plaintiff was also granted leave to file a Summons which was made returnable on Monday 8 September 2003 and which sought declarations that the First and Second Defendants were guilty of contempt of this Court arising from a deliberate and contumelious disregard of the orders made in the injunction proceedings on 19 March 2002 by Mathews AJ, on 28 March 2002 by Adams J and on 12 June 2002 by Dunford J dealing with the following: a) the property known as 71 Ryedale Road, West Ryde in the state of New South Wales; b) the property known as 68 First Avenue, Katoomba in the state of New South Wales; and c) the property known as Quoin Island in the state of Queensland (the “Quoin Island Property”).
4 Those orders restrained the First and Second Defendants from dealings with the West Ryde Property, the Katoomba Property and the Quoin Island Property and set requirements for the giving of notice to the Plaintiff of any intended dealings. Thereafter, further orders were made by Mathews AJ in the injunction proceedings on 28 June 2002 that the Second Defendant pay the Plaintiff’s costs on an indemnity basis.
5 The Summons also sought sequestration orders as to the assets of the First and Second Defendants, an order that the First and Second Defendants be committed to a correctional facility, an order that the First and Second Defendants be fined, and an order for costs.
6 In support of the Summons, the Plaintiff also filed a Statement of Charge for Contempt of Court which set out various factual matters alleged in support of the orders sought in the Summons. The Plaintiff relied on the affidavit of Victor Dominello of 4 September 2003.
7 In accordance with the orders made on 4 September 2004 by Hidden J, the Plaintiff served a representative of the Second Defendant with the Summons, the Motion, the affidavit of Victor Dominello and the Statement of Charge for Contempt. When the matter came before me at the first return date of the Summons and Motion on 8 September 2003, the First Defendant was represented and orders were made as to further conduct of the proceedings, as follows:
1. Orders made in accordance with paras 4 and 5 of the Motion (as to the provision of a verified list of assets and liabilities and a verified account of the movement of assets) insofar as they relate to the Second Defendant;
2. Leave granted to the First Defendant to file a Notice of Motion and thereafter an Amended Notice of Motion;
3. The Second Defendant to serve a list of documents and affidavits on which she was to rely by 12 September 2003 in relation to the First Defendant’s Amended Notice of Motion;
4. The Plaintiff to file and serve any material on which he was to rely by 19 September 2003 in relation to the First Defendant’s Amended Notice of Motion;
5. The parties to file written submissions by 23 September 2003 on the First Defendant’s Amended Notice of Motion;
6. Leave granted to the Plaintiff to file an amended Summons and an amended Statement of Charge for Contempt by 19 September 2003;
8. Matter adjourned to 30 October 2003.7. The Second Defendant to file and serve any material or affidavits on which she was to rely by 19 September 2003; and
8 The Plaintiff filed an amended Summons on 15 September 2003 and an amended Statement of Charge for Contempt on the same date, which set out additional matters allegedly undertaken by the First and Second Defendants, including the transfer of a mortgage over the Quoin Island Property and the disposal of the Katoomba Property.
9 The First Defendant’s Amended Notice of Motion, which was made returnable before me on 3 October 2003, sought orders in the injunction proceedings that the previous orders of Dunford J made on 12 June 2002 insofar as they related to the First Defendant (named as the Third Defendant in those proceedings) be discharged nunc pro tunc and the Plaintiff pay the costs of that application.
10 The First Defendant’s Amended Notice of Motion came before me for hearing on 3 October 2003 on which occasion I made orders as sought by the First Defendant and in the injunction proceedings, discharging nunc pro tunc the orders made by Dunford J as they related to the First Defendant, and other ancillary orders for the further conduct of the matter. I also reserved the question of the costs of that Amended Notice of Motion.
11 As a result of the orders made for the Amended Notice of Motion, certain of the allegations made in the Amended Statement of Charge for Contempt were rendered inappropriate and by a judgment I delivered on 3 October 2003, I allowed the Plaintiff an adjournment to consider what amendment, if any, might be sought to the Amended Statement of Charge. This was particularly so given the serious nature of the allegations made, including declarations sought regarding alleged contempt of the previous orders of the Court in the injunction proceedings. I also then reserved the question of costs in these proceedings.
12 Thereafter, the Plaintiff filed a further Notice of Motion (the “Amendment Motion”), supported by the affidavit of Victor Dominello sworn on 10 October 2003. The Plaintiff made application in the Amendment Motion for orders that he be granted leave to file and serve a Further Amended Summons and a Further Amended Statement of Charge.
13 The Amendment Motion came before me for hearing on 23 October 2003, on which occasion the second affidavit of Victor Dominello was read, without objection, and certain directions were made as to a Notice to Produce served by the Plaintiff for documents sought from the Second Defendant. On the hearing of the Amendment Motion certain documents were tendered by the First Defendant and admitted without objection, being the following which formed Exhibit D1-1: a letter dated 13 October 2003 from Lee Gan Solicitors to Etheringtons Solicitors; and a letter dated 20 October 2003 from Etheringtons Solicitors to Lee Gan Solicitors.
14 Further documents were tendered by the Second Defendant and also admitted without objection, being the following which formed Exhibit D2-1: a letter dated 17 October 2003 from Ma & Company Solicitors to Etheringtons Solicitors; and a letter dated 20 October 2003 from Etheringtons Solicitors to Ma & Company Solicitors.
15 I then reserved my decision in relation to that Motion.
16 The relief sought by the Plaintiff in the proposed further Amended Summons and further Amended Statement of Charge for Contempt repeat certain of the matters previously raised before the Court, with the orders sought, as follows:
1. declaratory relief that the First Defendant is guilty of contempt of court insofar as she has “…deliberately and contumaciously acted in breach or defiance of the orders of her Honour Acting Justice Mathews of 19 March 2002, as well as of those same orders as extended and varied by his Honour Justice Adams on 28 March 2002, as well as of those same orders as extended and varied by his Honour Justice Dunford on 12 June 2002, by knowingly participating in, facilitating, assisting with, aiding, and/or abetting a breach by the Second Defendant of the aforementioned orders of the Court”;
2. declaratory relief that the Second Defendant is guilty of contempt of court insofar as she has “…deliberately and contumaciously acted in breach or defiance of the orders of her Honour Acting Justice Mathews of 19 March 2002, as well as of those same orders as extended and varied by his Honour Justice Adams on 28 March 2002, as well as of those same orders as extended and varied by his Honour Justice Dunford on 12 June 2002, by dealing with the [West Ryde Property] by increasing the extent of a mortgage against that property …and by dealing with her personal property consisting of her shareholding in a company in the name of Lamron Pty Ltd, by transferring the beneficial interest in those shares to a third party; and
3. an order that the assets of the First and Second Defendants be sequestrated, that the First and Second Defendants be committed to a correctional facility, that they be fined and an order for costs.
17 The orders sought thereby differ from those set out in the Amended Summons principally in that relief is sought solely against the Second Defendant in relation to her alleged actions regarding the West Ryde Property and the dealings with regard to her shareholding in Lamron Pty Ltd, with the allegation made against the First Defendant that she aided and abetted the alleged breaches of the Second Defendant. Where previously allegations hade been made similarly against the First and Second Defendants, it appears as a result of further enquiry and more information coming to light that the separate claims against each of the said Defendants has been more appropriately set out. As was set out in the affidavit of Victor Dominello of 10 October 2003, the Plaintiff’s solicitor was not aware until about 3 October 2003 that “…there was a change in shareholding and officeholding of …” the company Lamron Pty Ltd.
18 Submissions were made on behalf of the First Defendant by Mr Grieve QC that the Amendment Motion and the proceedings in their entirety ought be dismissed, with costs to be paid by the Plaintiff on an indemnity basis.
19 Submissions were similarly made by Mr Ma on behalf of the Second Defendant that the Amendment Motion should be dismissed and the Mareva Injunction against the Second Defendant set aside.
20 The allegations by the Plaintiff that the Defendants have acted in a manner which is in defiance of the orders of this Court so as to warrant findings that the First and Second Defendant are in contempt of the Court are serious matters, and are allegations which require the Plaintiff to prove its case to the criminal standard of beyond reasonable doubt.
21 Further, the relief sought by the Plaintiff includes matters of punishment of the Defendants, in terms of both suggested incarceration and the imposition of a fine; again serious matters to be considered by the Court.
22 The only evidence presently available, however, is that set out in the two affidavits of Victor Dominello, augmented by the information contained in Exhibits D1-1 and D2-1 tendered to the Court.
23 Application has been made by counsel for the First Defendant for the whole of the proceedings to be dismissed as against the First Defendant, and with costs on an indemnity basis. Mr Ma, solicitor, also opposed the Motion. Not only did Mr Ma seek to have the Motion dismissed, but sought to have the Mareva injunction against his client, the Second Defendant, set aside.
24 The Plaintiff in a Summons proposing that person be dealt with for contempt carries the onus proof on a criminal standard of all elements of the charge (see Witham v Holloway (1995) 183 CLR 525 at 550, and Spindler v Balog (1959) 76 WN (NSW) 391 as authorities for the proposition that the procedural rules should be strictly observed and that every relevant fact must be strictly proven). At this stage, in relation to the matters to be proved, only certain matters have been proven in affidavits before the Court. In the event that proceedings commence, it may well be that particulars may be sought.
25 Notwithstanding the degree of lack of specificity, however, the matter that is before the Court is an application to file an Amended Summons and Particulars of Charge against both parties in different terms to that in the original Summons. Serious though such an application may be, the determination of the issue is a matter for the Court ultimately hearing a Summons. It is no part of the Court’s process at this stage to deal with the substance of the claim; that is a matter for a court hearing the Summons. Nothing has been shown to disentitle the Plaintiff to obtain the leave to file the Summons and Particulars of Charges.
26 I do not propose, therefore, to deal with matters of costs of this application, which should be determined by the Court hearing the Summons.
27 Accordingly, therefore, I make the following orders:
- i. The Plaintiff granted leave to file and serve a Further Amended Summons and a Further Amended Statement of Charge by 4pm on Friday, 20 August 2004;
- ii. The Plaintiff is to file and serve such further evidence, upon which is intends to rely, by 4pm on Friday, 27 August 2004;
- iii. The Defendants are to file and serve such evidence, upon which they intend to rely, by 4pm on 10 September 2004;
- iv. The Plaintiff is to file and serve such evidence in reply, upon which it intends to rely, by 4pm on 24 September 2004;
- v. The matter is to be listed for directions before the Duty Judge on Monday, 11 October 2004;
- vi. Liberty granted to all parties to apply on 3 days’ notice in writing;
- vii. The plaintiff is to have the costs of this application as the Plaintiff’s costs in the cause.
Last Modified: 08/19/2004
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