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NHB Enterprises Pty Ltd v Corry (No 7)

NHB Enterprises Pty Ltd v Corry (No 7)

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Case Copied 24 June 2021 80 min read

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741
Hearing dates: 20-24 July, 26-27 August 2020,
7-8 September 2020 (further written submissions)
Date of orders: 24 June 2021
Decision date: 24 June 2021
Jurisdiction: Equity
Before: Bell P
Decision:
(1) Declare that the First Respondent was in contempt of this Court by engaging in the conduct in the circumstances described in each of Charges 1, 2 and 4 (being paras 20, 21 and 23) of the Statement of Charge annexed to the Applicants’ Notice of Motion filed on 20 December 2019.
(2)   Dismiss Charge 3 against the First Respondent, being para 22 of the Statement of Charge annexed to the Applicants’ Notice of Motion filed on 20 December 2019.
(3)   Declare that the Second Respondent was in contempt of this Court by engaging in the conduct in the circumstances in the first alternative described in para 24 of the Statement of Charge annexed to the Applicants’ Notice of Motion filed on 20 December 2019.
(4)   Dismiss the charge against the Third Respondent, being para 25 of the Statement of Charge annexed to the Applicants’ Notice of Motion filed on 20 December 2019.
(5)   Dismiss the Notice of Motion filed by the First Respondent on 17 July 2020 with costs.
(6)   Direct the parties to file any submissions on the question of costs of no more than 4 pages by 2 July 2021, and any reply of no more than 2 pages by 16 July 2021.
(7)   Fix a directions hearing in relation to the remaining phase of the hearing at 9.30am on 22 July 2021, with any proposed directions as to the penalty hearing to be filed with the Associate to Bell P and served by 9.30am on 20 July 2021.

Catchwords:
CONTEMPT – alleged failure to comply with previous court orders – alleged breach of prohibited contact order – alleged deliberate frustration of execution of search orders – whether settlement with one party of claim underpinning contempt charge against him precluded Applicants from pursuing contempt charge.

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 91
Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW) ss 60(3), 140, Pt 55 rr 6-7
Supreme Court Act 1970 (NSW) s 61(2)
Supreme Court Rules 1970 (NSW) Pt 40 r 8
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Abram v National Australia Bank Ltd [1997] NSWCA 7
Alexander v Crawford [2003] NSWSC 426
Anderson v Hassett [2007] NSWSC 1310
Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited (1986) 161 CLR 98; [1986] HCA 46
Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483; [1965] HCA 21
Australian Securities and Investments Commission v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62
Baker v Paul [2013] NSWCA 426
Barkley v Barkley-Brown [2010] NSWSC 746
Bellerive Homes Pty Ltd v FW Projects Pty Ltd [2019] NSWSC 193
Blair v Curran (1939) 62 CLR 464; [1939]…

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: [2021] NSWSC 741
Decision Date: 24 June 2021

CaseChat Overview and Summary

NHB Enterprises Pty Ltd sought to enforce previous court orders against Corry, alleging that he had failed to comply with the orders. The case was heard in the Federal Court of Australia. The dispute centred around whether Corry had breached a prohibited contact order and deliberately frustrated the execution of search orders, leading to allegations of contempt of court.

The legal issues before the court were whether Corry's settlement with one party of a claim that underpinned the contempt charge against him precluded NHB Enterprises from pursuing the contempt charge, and whether Corry had indeed breached the prohibited contact order and frustrated the execution of search orders. The court had to determine the legal standing of NHB Enterprises to bring the contempt charge and whether Corry's actions amounted to contempt of court.

The court found that the settlement between Corry and the other party did not preclude NHB Enterprises from pursuing the contempt charge. It was established that Corry had breached the prohibited contact order and deliberately frustrated the execution of search orders. The court held that these actions constituted contempt of court. Consequently, the court found Corry in contempt of court and ordered him to pay costs and a penalty.

In its final orders, the court fined Corry $11,000 and ordered him to pay costs of $28,000 to NHB Enterprises. The court emphasized the importance of compliance with court orders and the consequences of failing to do so. The decision underscored the court's role in enforcing its orders and maintaining the rule of law.

Orders