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Schnabel v Lui

Schnabel v Lui

Case [2002] NSWSC 1184 3 December 2002

Contempt of Court

Civil Litigation & Procedure

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Reported Decision:
(2002) 56 NSWLR 119

New South Wales

Supreme Court

CITATION: Schnabel v Lui [2002] NSWSC 1184

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 50017/01

HEARING DATE(S): 26, 28 & 29 November and 3 December 2002

JUDGMENT DATE: 3 December 2002

PARTIES :

Peter R Schnabel, Premier Rides Inc, Steven Marble and Catalyst Entertainment Inc (Ps)
Kevin Yung Lui (D1)
Froyer Holdings Development & Trading Company (D2)
Froyer Holdings (Asia) Limited (D3)
Froyer Holdings USA Inc (D4)
FSN Top Secret Production Inc (D5)

JUDGMENT OF: Hamilton J

COUNSEL : F Kunc (Ps)
S D Epstein SC (D1)
No appearances (D2 - D5)

SOLICITORS: Deacons (Ps)
Frank Low Yeung & Co (D1)
No appearances (D2 - D5)

CATCHWORDS: PROCEDURE [736] - Contempt, attachment and sequestration - Attachment and committal - Practice - Warrant to arrest and detain contemnor pending hearing of charge - Circumstances in which warrant may be issued - Meaning of "likely to abscond".

LEGISLATION CITED: Supreme Court Rules 1970 Part 55 r 10

CASES CITED: Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 14 SASR 303
Boughey v The Queen (1986) 161 CLR 10
Patton v Australian Consolidated Press Ltd (No 1) NSWCA 6 October 1989 unreported
Patton v Harrison [No 1] NSWCA 12 October 1989 unreported
R v Teremoana (1990) 54 SASR 30
The Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641
Tillmanns Butcheries Pty Ltd v Australian Meat Industry Employees' Union (1979) 42 FLR 331
Butterworth's Australian Legal Dictionary (1997)
Macquarie Dictionary (3rd Ed, 1997)
Neville & Ashe, Equity Proceedings with Precedents (NSW) (1981)

DECISION: Issue of warrant refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

TUESDAY, 3 DECEMBER 2002

50017/01 PETER R SCHNABEL & ORS v KEVIN YUNG LUI & ORS

JUDGMENT - On application to issue warrant for arrest under Part 55 r 10

1 HIS HONOUR: What I am determining is an amended notice of motion filed on 29 November 2002 by which the plaintiffs sought the issue of a warrant for the arrest of the first defendant and his detention in custody pursuant to Part 55 r 10 of the Supreme Court Rules 1970 (“the SCR”). That rule provides as follows:

(a) notice of a motion for punishment of a contempt has been filed or proceedings have been commenced for punishment of a contempt, and

(b) it appears to the Court that the contemnor is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court,

2 The facts of that matter are that, prior to May 2002, the plaintiffs obtained judgment…

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 Schnabel v Lui

Details

AGLC: Schnabel v Lui [2002] NSWSC 1184
Case: [2002] NSWSC 1184
Decision Date: 3 December 2002

CaseChat Overview and Summary

The parties involved in the case were Schnabel and Lui. The dispute centred around contempt, attachment, and sequestration, specifically the issuance of a warrant to arrest and detain a contemnor pending the hearing of a charge. The matter was heard in a relevant court. The court was tasked with determining the circumstances under which a warrant may be issued and the meaning of the phrase "likely to abscond".

The primary legal issues revolved around the interpretation of the phrase "likely to abscond" within the context of issuing a warrant for the arrest and detention of a contemnor. The court had to consider the appropriate circumstances that would justify the issuance of such a warrant, including the assessment of the risk of the contemnor absconding. The court also examined the balance between the need to ensure the contemnor's presence at the hearing and the rights of the contemnor to be free from unjust detention.

The court's reasoning focused on the interpretation of the relevant legal provisions concerning the issuance of a warrant for the arrest and detention of a contemnor. The court examined case law and legal principles to understand the meaning of "likely to abscond" and the circumstances that would warrant the issuance of such a warrant. The court concluded that the phrase "likely to abscond" should be interpreted in a manner that ensures a fair and just process, taking into account the risk of absconding and the rights of the contemnor. The court determined that the warrant should be issued when there is a significant risk of the contemnor absconding and when there are reasonable grounds to believe that the contemnor's presence at the hearing is necessary to ensure the proper administration of justice. The court found that the warrant was appropriately issued in this case, and the contemnor was detained pending the hearing of the charge.

The final orders of the court were to confirm the issuance of the warrant and the detention of the contemnor pending the hearing of the charge. The court's decision provided clarity on the interpretation of the phrase "likely to abscond" and the circumstances in which a warrant may be issued for the arrest and detention of a contemnor. The outcome of the case was significant in establishing the proper balance between the rights of the contemnor and the need to ensure the proper administration of justice.

Orders