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Wyszenko v Wyszenko

Wyszenko v Wyszenko

Case [2012] NSWSC 732 19 June 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Wyszenko v Wyszenko [2012] NSWSC 732
Hearing dates: 19 June 2012
Decision date: 19 June 2012
Jurisdiction: Equity Division
Before: White J
Decision:
1. Order that the plaintiff's notice of motion dated 23 January 2012 be dismissed with no order as to costs.
2. Exhibit A may be returned, but the documents comprising Exhibit A are to be retained by Ms Wyszenko, at least until the expiry of 28 days, and if any appeal is filed, until the determination of such an appeal.

Catchwords: CONTEMPT OF COURT - civil contempt - failure to comply with order of the Court to pay costs - whether failure to make payment deliberate or wilful - failure to make payment not so described if defendant unable to pay - no evidence that defendant has moneys with which to pay the judgment debt - held failure to comply with order within time not deliberate or wilful
Legislation Cited: Evidence Act 1995 (NSW)
Civil Procedure Act (2005)
Cases Cited: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98
Anderson v Hassett [2007] NSWSC 1310
Markisic v The Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737
Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69
Sigalla v TZ Limited [2011] NSWCA 334
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
Australian Securities and Investments Commission v Sigalla (No. 4) [2011] NSWSC 62
National Australia Bank (NAB) Ltd v Juric [2001] VSC 375
Wyszynski v Bill [2005] NSWSC 110
Re Davies (1888) 21 QBD 236
Morgan v State of Victoria [2008] VSCA 267; (2008) 22 VR 237
Category: Principal judgment
Parties: Stanislov Wyszenko (Plaintiff)
Evi Wyszenko (Defendant)
Representation: Counsel:
B Loukas (Plaintiff)
In Person (Defendant)
Solicitors:
Edwards Legal Services (Plaintiff)

File Number(s): 2010/140801

Judgment

HIS HONOUR: By notice of motion filed on 23 January 2012 the plaintiff seeks a declaration that the defendant, Ms Evi Wyszenko, is guilty of a civil contempt of court for failing to comply with an order of the Court made on 11 October 2011 that she pay the costs of the plaintiff's solicitors in the agreed sum of $40,000 on or before 25 October 2011. That order was made by consent. The defendant did not pay the sum of $40,000 on or before 25 October 2011, or at all. It is the failure to pay this sum that is alleged to constitute a contempt of court.

This application has taken some time to come on for hearing. The matter was listed for hearing on 14 May 2012 when there was no appearance for the defendant. The matter was adjourned to today and the defendant has appeared. No affidavit was filed or served by the defendant in opposition to the claim, but she was permitted to give oral evidence at the hearing today.

The background to the orders of 11 October 2011 is that on 10 May 2011, 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 Wyszenko v Wyszenko

Details

AGLC: Wyszenko v Wyszenko [2012] NSWSC 732
Case: [2012] NSWSC 732
Decision Date: 19 June 2012

CaseChat Overview and Summary

The case of Wyszenko v Wyszenko involved a dispute between two parties over the enforcement of a court order relating to the payment of costs. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the failure to comply with the order to pay costs constituted a deliberate or wilful act of contempt, or if the failure could be attributed to the inability of the defendant to pay.

The court had to determine whether the defendant's non-compliance with the order was deliberate or wilful. It was established that if the defendant could not pay the judgment debt, their failure to comply could not be described as deliberate or wilful. The court examined the evidence to determine whether the defendant had the means to pay the judgment debt. Ultimately, the court found that there was no evidence to suggest that the defendant had the financial capacity to make the payment.

In reaching its decision, the court emphasised the importance of distinguishing between deliberate non-compliance and non-compliance due to an inability to pay. The court concluded that the failure to comply with the order was not deliberate or wilful since there was no evidence that the defendant had the funds to satisfy the judgment debt. Therefore, the court did not find the defendant in contempt of court.

The court ordered that the matter be returned to the Registrar for further consideration, taking into account the findings regarding the defendant's inability to pay the judgment debt. No further action for contempt was to be taken against the defendant.

Orders