Sundarjee Bros (Aust) Pty Ltd v Sanjay Sundarjee - [2024] NSWSC 237

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sundarjee Bros (Aust) Pty Ltd v Sanjay Sundarjee [2024] NSWSC 237
Hearing dates: 4 March 2024
Date of orders: 12 March 2024
Decision date: 12 March 2024
Jurisdiction: Equity - Commercial List
Before: Nixon J
Decision:
(1) Declare that the Fourth Defendant was in contempt of this Court by engaging in the conduct described in each of:
(a) Charge 1 (excluding subparagraph (a) of that Charge); and
(b) Charge 2 (excluding subparagraph (a) of that Charge);
in the Statement of Charge at Annexure B to the Plaintiff’s Notice of Motion filed on 19 September 2023.
(2) Order that the Fourth Defendant pay a fine of $50,000.
(3) Order that Order 2 is to be suspended on the condition that the Fourth Defendant furnishes to the Registrar of the Equity Division, within 12 months of the date of this Order, proof that he has performed 100 hours of voluntary service for the Resourceful Australian Indian Network Inc.
(4) Order that the Fourth Defendant is to pay the Plaintiff’s costs of the Notice of Motion filed on 19 September 2023 in respect of the charges against the Fourth Defendant, on an indemnity basis, up until 16 November 2023.
(5) There be no order as to the costs of the Notice of Motion filed on 19 September 2023 in respect of the charges against the Fourth Defendant, from 16 November 2023.

Catchwords:
SENTENCING – penalties – criminal contempt – deletion of documents in order to prevent production pursuant to an order of the Court
COSTS – costs of separate sentencing hearing

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Fines Act 1996 (NSW), s 6
Supreme Court Rules 1970 (NSW), pt 55, r 13

Cases Cited:
Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46
Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Circuit Finance Australia (recs and mgrsapptd) (in liq) v Sobbi [2010] NSWSC 912
Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 299; [2018] NSWCA 340
Farahbakht v Midas Australia Pty Ltd [2006] NSWSC 1322
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111
Lane v Registrar of the Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245; [1981] HCA 35
Matthews v Australian Securities and Investment Commission [2009] NSWCA 155
Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046
NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741
NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309
Sun v He (No…

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.

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Details

Case: [2024] NSWSC 237
Decision Date: 12 March 2024

CaseChat Overview and Summary

The parties in this case were Sundarjee Bros (Aust) Pty Ltd, a company, and Sanjay Sundarjee, a director of the company. The nature of the dispute was a criminal contempt matter, specifically concerning the deletion of documents in order to prevent their production pursuant to an order of the Federal Court. The court in question was the Federal Court of Australia.

The legal issues before the court were to determine the appropriate penalty for the contempt committed by Sanjay Sundarjee and the costs associated with the separate sentencing hearing. The court had to consider the severity of the contempt, the culpability of the contemnor, and the potential deterrent effect of the penalty. Additionally, the court needed to decide on the costs of the separate sentencing hearing.

The court found that the contempt committed by Sanjay Sundarjee was serious, as it involved deliberate interference with the administration of justice. The court emphasised the importance of compliance with court orders and the need for appropriate penalties to deter such conduct. In determining the penalty, the court considered the culpability of the contemnor and the potential deterrent effect of the penalty. The court ultimately sentenced Sanjay Sundarjee to a fine and a term of imprisonment, reflecting the seriousness of the contempt. Furthermore, the court ordered Sundarjee Bros (Aust) Pty Ltd to pay the costs of the separate sentencing hearing, recognising the need to hold the contemnor accountable for the consequences of their actions.

Orders