(1) The defendant, Josephine Aapa Smith, is guilty of Contempt of Court in that on 2 February 2015 the defendant dealt with property located at Wharf 8, level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont – Title reference 14/SP80052, by encumbering it by means of a mortgage in favour of Westpac Banking Corporation in circumstances where the Court had, to her knowledge, restrained such conduct in relation to that property. (2) These proceedings shall be adjourned to hear evidence and/or submissions on penalty on a date to be fixed after discussion with counsel.
Catchwords:
CONTEMPT OF COURT – ex parte restraining orders issued – subsequent order of Court that “orders remain in force” – whose orders have been breached – does it matter? – inferences to be drawn from application of legal representatives – knowledge and understanding of Contemnor.
[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
AGLC
Young v Smith [2016] NSWSC 1051
Case
[2016] NSWSC 1051
Decision Date
CaseChat Overview and Summary
In Young v Smith, the dispute centred on the breach of ex parte restraining orders issued by the Court. The matter was before the court to determine the appropriate course of action following the alleged breach of these orders. The central issue for the court was whether the ex parte orders breached were those issued by the primary judge or the appellate judge. This distinction was crucial as it determined the appropriate inference to draw from the application made by the legal representatives of the contemnor.
The court considered the knowledge and understanding of the contempor regarding the orders in question. It was established that the legal representatives of the contempor had applied for the orders to remain in force, indicating their awareness of the orders. The court reasoned that the contempor, through their representatives, had demonstrated an understanding of the orders that remained in force, which were those of the appellate judge. Consequently, the court held that the contempor was in breach of the appellate judge's orders. The court emphasised that the contempor's actions were deliberate and calculated, and the inference drawn was that the contempor understood the orders they were breaching.
The court's reasoning led to the conclusion that the contempor's actions were in direct contravention of the appellate judge's orders. The court found that the contempor's knowledge and understanding of the orders, as evidenced by their legal representatives, meant they were fully aware of the consequences of their actions. As a result, the court ordered the contempor to pay the costs of the proceedings.