Sigalla v TZ Limited

Case [2011] NSWCA 334

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Sigalla v TZ Limited [2011] NSWCA 334
Hearing dates:23 September 2011
Decision date: 04 November 2011
Before: Macfarlan JA at [1]; Young JA at [2]; Handley AJA at [42]
Decision:

(1) Appeal allowed.

(2) Orders 1, 2 and 3 made by Austin J on 23 December 2009 are set aside.

(3) The Court does not disturb the order for costs made below.

(4) There is to be no order for costs of the appeal.

(5) Liberty to apply to a judge of the Equity Division if there is difficulty in repayment of the fines.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

INTERPRETATION- "freezing order" not allowing the "selling" of property- contract for sale entered into- what constitutes "selling"- an injunction against selling something is clearly breached by entering into a contract for sale in respect of the property.

PROCEDURE- contempt of court- interlocutory "freezing order" against second appellant corporation breached through actions of first appellant agent- first appellant was not a party to the original order but was found guilty of contempt by primary judge- non-party to an order cannot be in breach of order but may otherwise be guilty of contempt of court- primary judge erred in not distinguishing between the first and second appellants- standard of proof for civil and criminal contempt is beyond reasonable doubt- primary judge did not refer to the need for proof beyond reasonable doubt- primary judge drew inferences as if hearing a civil matter- appeal allowed.
Cases Cited: Attorney General v Newspaper Publishing plc [1988] Ch 333
Attorney General v Times Newspapers Ltd [1992] 1 AC 191
CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524
Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521
Hamilton v Whitehead [1988] HCA 65; 166 CLR 121
Marengo v Daily Sketch and Sunday Graphic Ltd [1948] 1 All ER 406
Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16
Reid v Howard (1993) 31 NSWLR 298
Wellesley (Lord) v Mornington (Earl) (1848) 11 Beav 180; 50 ER 785
Witham v Holloway [1995] HCA 3; 183 CLR 525
Zhu v Treasurer of NSW [2004] HCA 56; 218 CLR 530
Category:Principal judgment
Parties: Andrew John Sigalla (First Appellant)
ZMS Investments Pty Ltd (Second Appellant)
TZ Limited (Respondent)
Representation: Counsel:
G O'L Reynolds SC, J C Hewitt and G R Rubagotti (Appellants)
L Pozniak (Solicitor) (Respondent - excused from further attendance)
Solicitors:
Banki Haddock Fiora (Appellants)
Landerer & Company (Respondent)
File Number(s):CA 2009/290315
 Decision under appeal 

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AGLC
Sigalla v TZ Limited [2011] NSWCA 334
Case
[2011] NSWCA 334
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute arising from an interlocutory freezing order granted by Austin J on 23 December 2009, which prohibited the selling of property. The second appellant, a corporation, was the subject of this order. The first appellant, an agent acting for the second appellant, was found guilty of contempt of court by the primary judge for breaching the freezing order through entering into a contract for sale of the property.

The central legal issues before the Court of Appeal were whether the first appellant, not being a party to the original freezing order, could be found in breach of that order, and whether the primary judge had applied the correct standard of proof when finding the first appellant guilty of contempt. The court also considered what constituted a "selling" of property in the context of the freezing order.

The Court of Appeal held that a non-party to an order cannot be in breach of that order, although they may be guilty of contempt of court in other ways. The primary judge erred by failing to distinguish between the second appellant's breach of the order and the first appellant's alleged contempt. Furthermore, the court found that the standard of proof for civil and criminal contempt is beyond reasonable doubt, and the primary judge had not referred to this standard, instead drawing inferences as if hearing a civil matter. The court concluded that entering into a contract for sale in respect of the property constituted a "selling" and therefore breached the terms of the freezing order.

Consequently, the appeal was allowed, and the orders made by Austin J on 23 December 2009 were set aside. The court made no order for costs of the appeal, but did not disturb the order for costs made below. Liberty was granted to apply to a judge of the Equity Division if difficulties arose in the repayment of fines.

Orders

Orders of the court

(1) Appeal allowed.

(2) Orders 1, 2 and 3 made by Austin J on 23 December 2009 are set aside.

(3) The Court does not disturb the order for costs made below.

(4) There is to be no order for costs of the appeal.

(5) Liberty to apply to a judge of the Equity Division if there is difficulty in repayment of the fines.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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