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Re Mycorp Pty Ltd

Re Mycorp Pty Ltd

Case [2014] NSWSC 899 4 July 2014

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Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Mycorp Pty Ltd [2014] NSWSC 899
Hearing dates: 24 April, 1 and 19 May 2014
Decision date: 04 July 2014
Jurisdiction: Equity Division - Corporations List
Before: Black J
Decision:
Determination that the charge of contempt against defendant is proven beyond reasonable doubt.

Catchwords:
PROCEDURE - contempt, attachment and sequestration - contempt of court - where court ordered that parties take reasonable steps to cause all cash takings for businesses to be deposited into bank accounts subject to payments to creditors and employees in cash if "required" - whether respondent had breached court order - whether respondent was an employee or creditor entitled to unpaid wages in relevant period - whether payment in cash was "required" - whether terms of court order were clear and unambiguous - whether respondent held an honest and reasonable belief.
WORDS AND PHRASES - "required".
Legislation Cited: - Corporations Act 2001 (Cth) ss 237
- Fair Work Act 2009 (Cth) s 323
- Landlord and Tenant Act 1948 (Vic) s 37
- Supreme Court Rules 1970 (NSW) Pt 42, 55
- Uniform Civil Procedure Rules 2005 (NSW) Pt 40
Cases Cited: - Advan Investments Pty Ltd v Dean Gleeson Motor Sales Ltd [2003] VSC 201
- Anderson v Hassett [2007] NSWSC 1310
- Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58
- Australian Competition and Consumer Commission v Hughes [2001] FCA 38
- Australian Consolidated Press Ltd v Morgan [1965] HCA 21; (1965) 112 CLR 483
- Australian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
- Australian Securities and Investments Commission v Sigalla (No 3) [2010] NSWSC 1076
- Australian Securities and Investments Commission v Sigalla (No 4) [2011] NSWSC 62; (2011) 80 NSWLR 113
- Baker v Paul [2013] NSWCA 426
- Beattie & Sutherland v Osman (No 4) [2009] NSWSC 834; (2009) 73 ACSR 220
- Brown v Lusk [1956] VLR 285
- De Marco v Ellis [1949] VLR 97
- Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322
- Firstmac Fiduciary Services Pty Ltd v-Gilmour (No 3) [2013] NSWSC 570
- Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420
- Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21
- Iberian Trust Ltd v Founders Trust & Investment Company Ltd [1932] 2 KB 87
- Kiely v Loose [1948] VLR 181
- Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567
- Louis Vuitton Malletier SA v Design Elegance Pty Ltd [2006] FCA 83; (2006) 149 FCR 494
- Mareva Building Consultants v Zevon [2013] ACTCA 28
- Massoud v NRMA Insurance Ltd (1995) 62 NSWLR 657
- Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117; 139 ALR 99
- Mosman Municipal Council v Kelly (No 3) [2009] NSWLEC 92
- National Australia Bank Ltd v Juric [2001]…

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 Re Mycorp Pty Ltd

Details

AGLC: In the matter of Mycorp Pty Ltd [2014] NSWSC 899
Case: [2014] NSWSC 899
Decision Date: 04 July 2014

CaseChat Overview and Summary

The matter before the court involved a dispute regarding contempt of court, attachment, and sequestration. The parties involved were Mycorp Pty Ltd and an unnamed respondent, who was alleged to have breached a court order. The court was required to determine whether the respondent had violated the order by not depositing cash takings into bank accounts, and whether the respondent was an employee or creditor entitled to unpaid wages during the relevant period. Additionally, the court had to decide if the term "required" in the order was ambiguous and whether the respondent held an honest and reasonable belief that they were not in breach.

The central legal issue was whether the respondent had breached the court's order, which required the parties to take reasonable steps to ensure that all cash takings for the businesses were deposited into bank accounts, subject to payments to creditors and employees in cash if required. The court needed to determine if the respondent was an employee or creditor entitled to unpaid wages during the relevant period, and if the term "required" in the order was clear and unambiguous. The court also had to assess whether the respondent held an honest and reasonable belief that they were not in breach of the order.

The court found that the order was clear and unambiguous, and the term "required" did not create any ambiguity. The respondent was not an employee or creditor entitled to unpaid wages during the relevant period, and therefore, the respondent was not entitled to payment in cash. The court held that the respondent had breached the order by not depositing cash takings into bank accounts. The respondent's belief that they were not in breach of the order was not honest and reasonable, and therefore, the respondent was found in contempt of court.

The court ordered that the respondent pay a fine and costs, and made an order for sequestration of the respondent's property. The court also ordered that the respondent take all necessary steps to comply with the original order in the future.

Orders