Pisano v Dandris - [2015] NSWSC 1219

Supreme Court

New South Wales

Medium Neutral Citation: Pisano v Dandris [2015] NSWSC 1219
Hearing dates: 21 August 2015
Decision date: 21 August 2015
Jurisdiction: Equity - Technology and Construction List
Before: McDougall J
Decision:
Respondent has no case to answer in respect of 20 of 22 particulars of alleged contempt.

Catchwords: CONTEMPT – defendant charged with failing to comply with freezing orders – application under r 29.10 of the Uniform Civil Procedure Rules 2005 (NSW) – whether, on the evidence given, a judgment could be supported – whether the contempt properly classified as criminal or civil – whether standard of proof is criminal or civil – two grounds advanced by defendant for entering judgment in its favour – first ground – evidence of transactions does not demonstrate that they did not fall within exception for authorised spending – where that is a matter for the defendant, not the plaintiff, to demonstrate – second ground – all but two transactions occurred at a time that the orders were not in force – orders subsequently amended retrospectively ‘nunc pro tunc’ – defendant cannot be deemed to be in breach of orders that were not in force at time of alleged infringing acts – result that second ground is made out, in respect of the transactions to which it relates – consequence that defendant has no case to answer except in relation to two transactions
Legislation Cited: Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: ASIC v Sigalla (No 3) [2010] NSWSC 1076
Briginshaw v Briginshaw (1938) 60 CLR 336
Hearne v Street (2008) 235 CLR 125
Pang v Bydand Holdings Pty Limited [2011] NSWCA 69
Street v Hearne (2007) 70 NSWLR 231
Witham v Holloway (1995) 183 CLR 525
Category: Procedural and other rulings
Parties: Bruno Pisano (First Plaintiff)
Sia Pisano (Second Plaintiff)
Georgia Dandris (First Defendant)
Patrick Francis Williams (Second Defendant)
Representation:
Counsel:
DS Weinberger / AF Knox (Plaintiffs)
J Jobson (First Defendant)
Solicitors:
Gadens Lawyers (Plaintiffs)
Zelden Solicitors (First Defendant)

File Number(s): 2012/283119

Judgment (ex tempore – revised 21 august 2015)

HIS HONOUR: The plaintiff (Mr Pisano) charges the first defendant (Ms Dandris) with contempt of court. The statement of charge says that:

“The first defendant is charged with contempt by failing to comply with the freezing order of the court dated 14 November 2013.”

Some 28 particulars are given, each relating to a separate payment of a sum of money. The first of those occurred on 14 November 2013. The second occurred on 28 November 2013. The last occurred on 31 July 2014. Six of the particularised transactions have been withdrawn as particulars of breach of the Court's order.
The charge is based on a freezing order made ex parte on 14 November 2013. Order 4 restrained Ms Dandris from, up to and including 18 November 2013, removing, disposing, dealing with or diminishing the value of any of her assets in Australia below the unencumbered value of $1 million. There were the usual exceptions…

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.

Continue reading Pisano v Dandris

Details

AGLC: Pisano v Dandris [2015] NSWSC 1219
Case: [2015] NSWSC 1219
Decision Date: 21 August 2015

CaseChat Overview and Summary

In the matter of Pisano v Dandris, the defendant, Dandris, was charged with contempt for failing to comply with freezing orders. The dispute centred around the interpretation and enforcement of these orders under rule 29.10 of the Uniform Civil Procedure Rules 2005 (NSW). The court had to determine whether, based on the evidence presented, a finding of contempt could be supported and whether this contempt should be classified as criminal or civil. Furthermore, the court had to decide the appropriate standard of proof applicable to the case, as well as the validity of the two grounds advanced by the defendant for entering judgment in its favour.

The first ground advanced by Dandris was that the evidence did not demonstrate that the transactions in question did not fall within the exception for authorised spending. The court held that this matter was primarily for the defendant to demonstrate, and that the evidence presented was insufficient to establish that the transactions were outside the scope of the exception. The second ground was that all but two of the transactions occurred at a time when the orders were not in force, and that the orders were subsequently amended retrospectively to apply 'nunc pro tunc'. The court found that since the orders were not in force at the time of the alleged infringing acts, Dandris could not be deemed to be in breach of those orders. Consequently, the second ground was made out in respect of the transactions to which it related.

The court ruled that Dandris had no case to answer except in relation to the two transactions that occurred after the orders were in force. The court determined that the contempt should be classified as civil, and that the standard of proof applicable was that of the civil standard. The court ultimately dismissed the application, finding that there was no evidence to support a finding of contempt against Dandris for the majority of the transactions.

Orders