United Distillers and Vintners (Aust) Ltd v Rajab
[2000] NSWSC 1044
•8 November 2000
CITATION: United Distillers & Vintners (Aust) Ltd v Rajab [2000] NSWSC 1044 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 3171/00 HEARING DATE(S): 25 October and 8 November 2000 JUDGMENT DATE: 8 November 2000 PARTIES :
United Distillers & Vintners (Aust) Ltd (P)
Joseph Rajab t/as Joe's Distributors (D1)
Commonwealth Bank of Australia Pty Limited (D2)JUDGMENT OF: Hamilton J
COUNSEL : K Roach, Solicitor (P)
No appearance (D1 & 2)SOLICITORS: Middletons Moore & Bevins (P)
No representation (D1)
L E Taylor (D2)CATCHWORDS: PROCEDURE [698] - Contempt - What constitutes - Breach of undertaking to Court - Release from undertakings - Anton Piller order - Permission for articles to be delivered to plaintiff and destroyed at its discretion - Articles valueless or owned by plaintiff - Defendant disappeared. DECISION: Plaintiff and solicitors released from undertakings.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONHAMILTON J
WEDNESDAY, 8 NOVEMBER 2000
3171/00 UNITED DISTILLERS & VINTNERS (AUST) LTD v JOSEPH RAJAB t/as JOE'S DISTRIBUTORS & ANOR
JUDGMENT
HIS HONOUR:
1 I am asked this morning for the orders which I shall, at the end of these short reasons for judgment, make. The application arises from the seizure of material pursuant to an Anton Piller order granted by Santow J on 12 July, 2000. The material that was seized upon the execution of the Anton Piller order may be regarded as four items. Item 1 is some blank bank deposit slips. Items 2 and 3 are packaging that was discarded and can realistically be regarded as rubbish. Item 4 is promotional material, which it is now established before me by affidavit evidence remained, despite delivery to the first defendant, and still is the property of the plaintiff.2 There has already been given ex parte a money judgment against the first defendant arising out of the transactions of sale of liquor which were the subject matter of these proceedings. Not only did the first defendant not appear to contest the proceedings, but he left the country on 5 July 2000 and records of the Deparment of Immigration tendered this morning show that he is still out of the country, apparently in the Middle East. There is no evidence to suggest if and when he will return.
3 Meticulous care must be taken with the disposal of objects seized under the very invasive process of an Anton Piller order. However, bearing in mind the valueless nature of Items 1, 2 and 3 as described above and the fact that the goods in Item 4 are established to be the property of the plaintiff itself, I propose to make the orders sought, even though it has not been possible to serve the first defendant with a notice of this application.
4 The orders that I make are:
1 That the plaintiff and its solicitor each be released forthwith from the undertakings given to the Court in these proceedings on 12 July 2000.
2 That the plaintiff be released forthwith from the undertaking as to damages given to the Court on 12 July 2000 in these proceedings.
3 That the articles itemised in Annexure D to the affidavit of Kathryn Elizabeth Roach sworn 19 July 2000 may be returned forthwith to the possession of the plaintiff and destroyed at the discretion of the plaintiff.
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