Wyszenko v Wyszenko

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.