Pisano v Dandris (No 2) - [2015] NSWSC 1220

Supreme Court

New South Wales

Medium Neutral Citation: Pisano v Dandris (No 2) [2015] NSWSC 1220
Hearing dates: 21 August 2015
Decision date: 21 August 2015
Jurisdiction: Equity - Technology and Construction List
Before: McDougall J
Decision:
Find respondent guilty of contempt of court in respect of one payment.

Catchwords: CONTEMPT – defendant charged with failing to comply with freezing orders – two transfers – one to repay a credit card debt – whether that payment for ‘ordinary living expenses’ – other transfer – where half of the sum was a repayment of a sum advanced from defendant’s husband’s account in error – result that beneficial ownership of that money never passed to defendant – further result that transfer back to husband cannot constitute a diminution in the defendant’s beneficial assets – remaining half of the sum – explanation that sum transferred to allow for future payment of legal expenses – where the freezing order did not authorise payment out of a lump sum on account of anticipated expenses, but rather, expenses as they arose from time to time – whether alternative defence available that payment out not a contempt as defendant’s total assets remained above the required threshold level – where evidence shows that, on the contrary, the assets were always below the threshold – result that contempt is proved
Category: Principal judgment
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: In reasons I gave earlier today, I explained why, in my view, some 20 of 22 extant particulars of contempt of court, alleging the payment out of moneys supposedly in breach of a freezing order, could not be sustained. In the course of those reasons I explained the relevant background. I will not repeat what I said. I will assume that the reader of these reasons has read also those earlier reasons.
The two remaining dispositions of property, in respect of which Ms Dandris gave evidence, were a transfer of some $250,000 to her husband, Patrick Williams, on 14 November 2013 and a transfer of $3,895 on 31 July 2014.

The second transfer

It is convenient to start with the second transfer. Ms Dandris said that it had been paid to her bank in discharge of her obligation on a credit card. She could not produce the credit card slip. However, her bank account in respect of the relevant payment showed that it was indeed made to “ANZ Cards” in respect of what I can recognise is a credit card number.
I am not persuaded that a payment of a credit card debt falls outside payment of ordinary living expenses – at least, in the 21st century. It may well be, as Mr Weinberger submitted, that some of the underlying payments were not in respect…

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 (No 2)

Details

AGLC: Pisano v Dandris (No 2) [2015] NSWSC 1220
Case: [2015] NSWSC 1220
Decision Date: 21 August 2015

CaseChat Overview and Summary

In Pisano v Dandris (No 2), the defendant was charged with contempt for failing to comply with freezing orders. The dispute arose from two separate transfers made by the defendant. The first involved a payment to repay a credit card debt, which the defendant claimed was for ordinary living expenses. The second transfer involved half a sum which was a repayment of an amount that had been erroneously transferred from the defendant's husband's account, and the other half of the sum was transferred to allow for future payment of legal expenses. The court was required to decide whether the defendant's actions constituted a breach of the freezing orders and, if so, whether any defences were available.

The court considered the nature of the transfers and their compliance with the terms of the freezing orders. Regarding the credit card repayment, the court found that the payment did not constitute a contempt as it was for ordinary living expenses. However, the court found that the transfer to repay the erroneous payment did not diminish the defendant's beneficial assets, as the beneficial ownership of the money never passed to the defendant. The court also considered the transfer to allow for future payment of legal expenses, which the defendant claimed was not a contempt as their total assets remained above the required threshold. However, the court found that the defendant's assets were always below the threshold, and therefore, the payment did constitute a contempt.

The court found that the defendant was in contempt of the freezing orders as the second transfer did not comply with the terms of the orders. The court rejected the defendant's defence that the payment did not constitute a contempt as their total assets remained above the required threshold, as evidence showed that their assets were always below the threshold. The court held that the defendant's actions constituted a breach of the freezing orders and therefore, contempt was proved.

Orders