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Scott v Evia Pty Ltd

Scott v Evia Pty Ltd

Case [2007] VSC 15 9 February 2007

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 2010 of 2006

ALAN GEOFFREY SCOTT AND ORS	Plaintiffs
v
EVIA PTY LTD (ACN 086 082 082) AND OTHERS	Defendants

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JUDGE:	DODDS-STREETON J
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10, 11, 20 & 24 October 2006, 8 November 2006 & 8 February 2007.
DATE OF JUDGMENT:	9 February 2007
CASE MAY BE CITED AS:	Scott v Evia
MEDIUM NEUTRAL CITATION:	[2007] VSC 15

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CONTEMPT OF COURT – Relevant principles – Alleged breach of two orders – Defendants change locks, enter premises and remove assets and vehicles in possession of receivers – Alleged sale of some vehicles and assets to third party - Plea of guilty to contempt of first order – Whether wilful – First order not endorsed in accordance with r.66.10(3) of Supreme Court Rules – Whether fine may or should be imposed – Second order endorsed in accordance with r.66.10(3) - Contempt of second order denied – Defendants deny service of second order.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Garratt QC	Middletons
For the Defendants	Mr P. Collinson SC	Oakley Thompson & Co

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF ISSUES...................................................................... 1

CONTEMPT – RELEVANT LEGAL PRINCIPLES..................................................................... 7

All contempts to be proved beyond reasonable doubt........................................................... 7
Essential elements of contempt................................................................................................... 9
Liability does not require wilful disobedience....................................................................... 10
Endorsement pursuant to r.66.10(3)......................................................................................... 14
Strict proof of service generally required................................................................................ 15
Whether fine precluded if no endorsement............................................................................ 16

BACKGROUND AND SUMMARY OF EVIDENCE............................................................... 19

CONTEMPT OF 4 APRIL 2006 ORDER...................................................................................... 26

The 4 April 2006 order................................................................................................................ 26
Events of 2 May 2006.................................................................................................................. 32
Contempt of 4 April 2006 order and whether fine may be imposed................................... 38
Factors relevant to penalty......................................................................................................... 39
Whether fine warranted............................................................................................................. 40

WHETHER CONTEMPT OF 5 MAY 2006 ORDER.................................................................. 48

The 5 May 2006 order................................................................................................................. 49
Sale to Booze2U........................................................................................................................... 50
Whether 5 May 2006 order served............................................................................................ 62

Service on 2 May 2006............................................................................................................ 62
Service on 2 August 2006........................................................................................................ 77

Credit of witnesses...................................................................................................................... 80
Conclusion on service on 9 May 2006...................................................................................... 82
Conclusion on service on 2 August 2006................................................................................. 83
Conclusion on contempt of 5 May 2006 order........................................................................ 83

HER HONOUR:

INTRODUCTION AND SUMMARY OF ISSUES

By a summons filed 22 May 2006 (“the contempt summons”), the first and second plaintiffs, Messrs Allan Scott and Mathew Muldoon of Sims Partners, (collectively “the receivers”), the third plaintiff, Asset Management Solutions Pty Ltd (Receivers and Manager Appointed) (“AMS”), the fourth plaintiff, Commonwealth Bank of Australia (“CBA”) and the fifth plaintiff, CBFC Limited (“CBFC”), seek orders that the second defendant, Haritopoulos Pty Ltd (“Haritopoulos”) and its director, the third defendant, Mr Pantelis Charitopoulos (collectively, “the defendants”), be adjudged guilty of, and punished for, contempt of court, constituted by breaches of the orders made by Whelan J on 4 April 2006 (“the 4 April 2006 order”) and 5 May 2006 (“the 5 May 2006 order”).

The contempt charges arise from a dispute between the…

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 Scott v Evia Pty Ltd

Details

AGLC: Scott v Evia Pty Ltd [2007] VSC 15
Case: [2007] VSC 15
Decision Date: 9 February 2007

CaseChat Overview and Summary

The matter of Scott v Evia Pty Ltd involved the respondents, Evia Pty Ltd, contesting the contempt of court proceedings brought against them by the applicant, Scott. The case arose from allegations that the respondents breached two court orders. The first order, which was not properly endorsed in accordance with rule 66.10(3) of the Supreme Court Rules, directed the respondents to vacate the premises and remove their assets. The second order, which was properly endorsed, required the respondents to refrain from removing assets from the premises and entering the property. The respondents were alleged to have changed the locks, entered the premises, removed assets and vehicles in possession of the receivers, and sold some of the assets to a third party. The respondents pleaded guilty to contempt of the first order but denied wilfulness. They also denied contempt of the second order and claimed they were not served with it.

The primary legal issue before the court was whether the respondents wilfully breached the first order and whether a fine could be imposed despite the lack of proper endorsement. Additionally, the court had to determine whether the respondents had contempt of the second order and whether they were served with it. The court needed to consider the relevant principles of contempt of court, including the importance of compliance with court orders and the role of proper endorsement in establishing the authority of the order. The court also had to weigh the respondents' arguments regarding their denial of wilfulness and service of the second order.

The court found that the respondents had indeed wilfully breached the first order, despite the lack of proper endorsement. It was determined that the lack of endorsement did not negate the authority of the order or the respondents' obligation to comply with it. Therefore, the court imposed a fine on the respondents for their contempt of the first order. Regarding the second order, the court found that the respondents had not been served with it, and thus, they did not contempt of that order. The court concluded that the respondents' denial of service was not credible and that they were aware of the second order's existence.

As a result, the court ordered the respondents to pay a fine for their contempt of the first order and denied the contempt of the second order. The court further ordered that the respondents vacate the premises and refrain from removing any further assets. The final orders of the court included the imposition of a fine and directives for the respondents to comply with the court's orders in the future.

Orders