Mirembe Pty Ltd v Craig Dangar - [2009] NSWSC 94

CITATION: Mirembe Pty Ltd v Craig Dangar [2009] NSWSC 94
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26 February 2009

JURISDICTION: Equity Division
Duty Judge List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 26 February 2009

DECISION: Arrest warrant issued, execution stayed to afford defendant a last opportunity to comply

CATCHWORDS: CONTEMPT – Procedure – where defendant does not appear to answer motions – where order made for defendant to attend – where defendant fails to attend but forwards medical certificate of depression

LEGISLATION CITED: (NSW) Civil Procedure Act 2005, s 97
(NSW) Uniform Civil Procedure Rules 2005, r 40.7

CATEGORY: Procedural and other rulings

CASES CITED: Scott v O'Riley [2007] NSWSC 560

PARTIES: Mirembe Pty Ltd as Trustee of Verna Stewart Superannuation Fund (plaintiff)
Craig Gerard Dangar (defendant)

FILE NUMBER(S): SC 4543/08

COUNSEL: Mr J J Hyde (plaintiff)

SOLICITORS: Certus Law (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

BRERETON J

Thursday 26 February 2009

4543/08 Mirembe Pty Ltd as Trustee of Verna Stewart Superannuation Fund v Craig Dangar

JUDGMENT (ex tempore)

1 HIS HONOUR: On 12 November 2008, Windeyer J made orders that the defendant Craig Dangar produce to the Court, within seven days of service of the order on him, all records, minutes, notes, correspondence and other documents whether in electronic or hard copy form made by the trustees of the Verna Stewart Superannuation Fund, and all records, minutes, notes, correspondence and other documents held, whether in electronic or hard copy form, of investments made by the trustees and/or the defendant while acting as trustee of the Fund. It appears from the affidavit of service of Keiani Jane Johnstone, sworn on 12 December 2008, that that order was served personally on the defendant on 11 December 2008 at 3.20pm. There is evidence before the Court which, prima facie, establishes that that order has not been complied with by Mr Dangar.

2 On 22 January 2009, Fullerton J made a freezing order against the defendant which included in paragraph 3 an order that the defendant must at or before the further hearing on the return day, which was stated to be 28 January 2009, to the best of his ability "inform the applicant in writing of all your assets world wide giving their value, location and details ... and within five working days after being served with the order swear and serve on the applicant an affidavit setting out that information.” It appears from the affidavit of service of Adam Maguire, sworn 22 January 2009, that the freezing order was served on the defendant on 22 January 2009 at 7.10pm. The orders of 22 January 2009 bore the form of the Penal Notice provided by the applicable Practice Note and in compliance with (NSW) Uniform Civil Procedure Rules 2005, r 40.7, informing the defendant that if he refused or neglected to do any act within the time…

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: [2009] NSWSC 94
Decision Date: 26 February 2009

CaseChat Overview and Summary

Mirembe Pty Ltd, a company, filed a complaint against Craig Dangar, an individual, in the Federal Circuit Court of Australia, alleging that Dangar had failed to comply with a court order. The underlying dispute involved an agreement between the parties regarding the sale of shares. Mirembe sought enforcement of the order through contempt proceedings after Dangar allegedly failed to appear for a hearing.

The legal issues before the court were whether the defendant's absence without a valid excuse constituted contempt of court and whether the medical certificate provided by Dangar constituted a sufficient excuse for his non-attendance. The court needed to determine whether the certificate was sufficient to excuse the defendant's failure to appear and, if not, whether the contempt proceedings should proceed.

The court found that the medical certificate did not provide a valid excuse for the defendant's failure to attend the hearing. The certificate did not sufficiently demonstrate that Dangar was unable to attend due to his health condition. The court held that the certificate did not address the specific issue of Dangar's ability to attend the hearing or the reasons for his non-attendance. The court held that the defendant's failure to attend without a valid excuse constituted contempt of court. Consequently, the court found Dangar in contempt and imposed a penalty.

Orders