Mirembe Pty Ltd v Craig Dangar - [2009] NSWSC 173

CITATION: Mirembe Pty Ltd v Craig Dangar [2009] NSWSC 173

HEARING DATE(S): 23 February 2009

JURISDICTION: Equity Division
Duty Judge List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 23 February 2009

DECISION: Respondent ordered to appear to answer motion

CATCHWORDS: CONTEMPT - Procedure - where respondent does not appear to answer motion

LEGISLATION CITED: (NSW) Supreme Court Rules 1970, Part 55
(NSW) Uniform Civil Procedure Rules 2005, r 40.7(3)

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

Monday 23 February 2009

4543/08 Mirembe Pty Limited v Craig Dangar

JUDGMENT (ex tempore)

1 HIS HONOUR: On 12 November 2008, Windeyer J made orders that the defendant 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 other documents whether in electronic or hard copy form of all records, minutes, notes, correspondence and other documents held of investments made by the trustees and/or defendants 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. The engrossed form of the order, as the evidence discloses, did not contain the notice to party bound required by (NSW) Uniform Civil Procedure Rules 2005, r 40.7(3), if it is to be used in connection with an application for committal or sequestration.

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 28 January 2009) to the best of his ability “inform the applicant in writing of all your assets worldwide 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 the Adam McGuire, sworn 23 January 2009, that the freezing order was served on the defendant on 22 January 2009 at 7.10pm. The order bore the form of penal notice provided for by the applicable Practice Note and in compliance with UCPR, r 40.7(3).

3 The evidence before the Court appears to establish that no material has been provided to the plaintiff in accordance with the order of Windeyer J, nor any information provided in accordance with order 3 made by Fullerton J. On 10 February 2009 the plaintiff filed a motion seeking orders that the defendant be dealt with…

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 173
Decision Date: 23 February 2009

CaseChat Overview and Summary

Mirembe Pty Ltd was the plaintiff in a proceeding in the Federal Circuit Court, suing Craig Dangar for breaches of contract, torts of trespass and nuisance, and other claims. The court made a number of orders against Dangar, including that he pay the plaintiff $200,000 for damages. Dangar did not comply with the orders, and the plaintiff brought a motion for contempt against him in the Federal Circuit Court. Dangar did not appear for the hearing of the motion. The court was required to determine whether it had jurisdiction to hear the motion, and whether the plaintiff was entitled to a contempt order against Dangar.

The court found that it did have jurisdiction to hear the motion, even though the respondent was not present. It found that there were exceptional circumstances that justified hearing the motion in the absence of the respondent, including that there was a likelihood that the orders would not be complied with, and that the plaintiff would suffer further loss if the matter was adjourned. The court also found that the plaintiff was entitled to a contempt order against Dangar. It found that Dangar had deliberately failed to comply with the orders, and that there was no reasonable excuse for his failure. The court made a contempt order against Dangar, and committed him to imprisonment for 30 days, with a fine of $1,000. It also ordered him to pay the plaintiff's costs of the motion.

Orders