Specialty Fashion Group Limited v Muirhead Nominees Pty Ltd & Ors [2009] NSWSC 975

Specialty Fashion Group Limited v Muirhead Nominees Pty Ltd & Ors [2009] NSWSC 975

Although the contempt offences were proven, the defendants were not shown to have acted wilfully to avoid compliance with the Court's orders. The confusion created by the Consent Orders' failure to address the s 128A regime, the defendants' pursuit of legal advice and steps to protect against self-incrimination, the provision of substantial material to their solicitor, the relatively short delay, the defendants' genuine apologies, and the low seriousness of the contempt justified a lenient approach. The Court therefore declined to record a formal finding of contempt, but ordered indemnity costs because the plaintiff had to press for more detailed disclosure.

Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Contempt Proceedings / Penalty Hearing After Defendants Failed in Preliminary Application to Prevent the Plaintiff Proceeding With Contempt Charges
Outcome
Offences proven without recording any formal finding of contempt; defendants ordered to pay the plaintiff's costs of the Motion for contempt on an indemnity basis; Motion otherwise dismissed.
Legal Topics
['non Compliance With Consent Orders' 'asset Disclosure Orders' 'privilege Against Self Incrimination' 'penalty for Contempt' 'indemnity Costs']
['civil Procedure' 'contempt of Court' 'evidence'] ['non Compliance With Consent Orders' 'asset Disclosure Orders' 'privilege Against Self Incrimination' 'penalty for Contempt' 'indemnity Costs']

Case Brief

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Procedural Posture

Contempt Proceedings / Penalty Hearing After Defendants Failed in Preliminary Application to Prevent the Plaintiff Proceeding With Contempt Charges

Legal Issues

  1. 1 ['Whether the fourth, eighth and ninth defendants should be punished for contempt arising from non-compliance with Order 2 of the Consent Orders made on 15 May 2009.' 'Whether special circumstances, including confusion about the s 128A Evidence Act 1995 (NSW) regime, reliance on legal advice, delay, disclosure efforts and apologies, warranted a lenient approach.' "Whether the defendants should pay the plaintiff's costs of the contempt motion on an indemnity basis."]

Ratio Decidendi

Although the contempt offences were proven, the defendants were not shown to have acted wilfully to avoid compliance with the Court's orders. The confusion created by the Consent Orders' failure to address the s 128A regime, the defendants' pursuit of legal advice and steps to protect against self-incrimination, the provision of substantial material to their solicitor, the relatively short delay, the defendants' genuine apologies, and the low seriousness of the contempt justified a lenient approach. The Court therefore declined to record a formal finding of contempt, but ordered indemnity costs because the plaintiff had to press for more detailed disclosure.

Court Disposition

Offences proven without recording any formal finding of contempt; defendants ordered to pay the plaintiff's costs of the Motion for contempt on an indemnity basis; Motion otherwise dismissed.

Orders

  • ['The offences are proven without recording any formal finding of contempt against the defendants.' "The defendants are to pay the plaintiff's costs of the Motion for contempt on an indemnity basis." 'The Motion is otherwise dismissed.']