Singh v Kaur Bal [No 3]

Case [2012] WASC 243


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SINGH -v- KAUR BAL [No 3] [2012] WASC 243

CORAM:   EM HEENAN J

HEARD:   25 JUNE 2012

DELIVERED          :   4 JULY 2012

FILE NO/S:   CIV 1264 of 2006

BETWEEN:   SARDUL SINGH

Plaintiff

AND

TEESHALDIP KAUR BAL
First Defendant

MAN MAHAN SINGH
Second Defendant

SATWANT KAUR
Third Defendant

Catchwords:

Applications for committal for contempt - Alleged non­compliance with judgment and orders of court - No express order or prohibition in judgment in relation to conduct alleged - Whether implicit prohibition by judgment of conduct alleged - Judgment and orders relating to real property in Malaysia - Subsequent proceedings commenced by defendants in Malaysian courts to challenge efficacy in Malaysia of orders and instruments resulting from judgment - Ambiguity and uncertainty over effect of judgment in relation to conduct in Malaysia - Judgment and orders obtained without appearance by defendants - Failure by plaintiff to comply with undertaking given to Federal Magistrates Court when obtaining leave to proceed under the Bankruptcy Act 1966 (Cth) - Failure by plaintiff to comply with undertaking unexplained and unremedied - No application for leave to appeal pending - Alternative application by plaintiff to amend terms of judgment - Judgment unable to be varied except on appeal - Requirements for contempt of court - Disobedience of court orders - Conduct calculated to frustrate implementation of court orders - Significance of availability of jurisdiction for anti­suit injunction - Significance of foreign proceedings - Plaintiff's appearance in and consent to orders in Malaysian court

Legislation:

Bankruptcy Act 1966 (Cth), s 53

Result:

Applications for committal for contempt dismissed

Category:    A

Representation:

Counsel:

Plaintiff:     Mr A P Hershowitz

First Defendant             :     Mr S S Sandhu

Second Defendant         :     No appearance

Third Defendant           :     Mr S S Sandhu

Solicitors:

Plaintiff:     Eapon Carlose

First Defendant             :     S S Sandhu

Second Defendant         :     No appearance

Third Defendant           :     S S Sandhu

Case(s) referred to in judgment(s):

ACCC v Collings Construction Co Ltd (Unreported, NSWSC, BC 9702850 2 July 1997)

Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201

ANZ Banking Group Ltd v Merribee Pastoral Industries Pty Ltd (1998) 84 FCR 367

Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300; [1993] HCA 6

British South Africa Co v Companhia de Moçambique [1893] AC 602

Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218

Cameron v Cole (1944) 68 CLR 571; [1994] HCA 5

Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573

CSI Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345

De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207; [1997] HCA 14

Eastman v The Queen [2008] FCAFC 62

Exhibit and Publishing Pty Ltd v Consolidated Business Media Pty Ltd [2006] WASC 26

Isaacs v Robertson [1985] AC 97

Jendrell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127

Leslie v GE Commercial Corporation (Australia) Pty Ltd…

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AGLC
Singh v Kaur Bal [No 3] [2012] WASC 243
Case
[2012] WASC 243
Decision Date

CaseChat Overview and Summary

The case of Singh v Kaur Bal [No 3] involved an application for committal for contempt by the plaintiff, Singh, against the defendants, Kaur Bal, for alleged non-compliance with the judgment and orders of the Federal Circuit Court. Singh sought to enforce the terms of a judgment obtained in an earlier proceeding against Kaur Bal, which included orders relating to real property in Malaysia. Kaur Bal had initiated proceedings in Malaysian courts to challenge the efficacy of the Australian court's orders and instruments in Malaysia, leading to ambiguity over the effect of the Australian judgment in relation to conduct in Malaysia.

The legal issues before the court were whether the conduct alleged by Singh constituted contempt of court, particularly given the ambiguity over the effect of the judgment in Malaysia, and whether there was an implicit prohibition in the judgment regarding the conduct alleged by Singh. The court considered whether Singh's failure to comply with an undertaking given to the Federal Magistrates Court when obtaining leave to proceed under the Bankruptcy Act 1966 (Cth) and his failure to remedy this failure constituted contempt of court.

The court found that there was no express order or prohibition in the judgment in relation to the conduct alleged by Singh. However, the court considered whether there was an implicit prohibition by the judgment of the conduct alleged. The court concluded that the ambiguity and uncertainty over the effect of the judgment in Malaysia, combined with Singh's failure to comply with the undertaking given to the Federal Magistrates Court, did not amount to contempt of court. The court also noted the significance of the availability of jurisdiction for an anti-suit injunction and the significance of the foreign proceedings, particularly given that Singh had appeared in and consented to orders in the Malaysian court.

The court declined to make an order for committal for contempt and dismissed the application. The court found that the judgment could not be varied except on appeal, and there was no application for leave to appeal pending. The court also noted that Singh had made an alternative application to amend the terms of the judgment, which was not before the court in this proceeding. The court concluded that the alleged conduct did not amount to contempt of court, and the application was dismissed with costs.

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