Novelly v Tamqia Pty Ltd (No 2) [2023] NSWSC 1091

Novelly v Tamqia Pty Ltd (No 2) [2023] NSWSC 1091

Because the statements of charge expressly particularised breaches as contumacious (i.e., criminal contempt) and the applicant failed to prove contumelious conduct beyond reasonable doubt, the application for contempt must be dismissed. Although the defendants were found to have committed civil contempt (deliberate but not defiant breach of undertakings), the charges as pleaded only alleged criminal contempt and cannot be sustained on a lesser finding.

Parties
Plaintiff: Jared Novelly; First Defendant: Tamqia Pty Ltd; Second Defendant: Marie Bolton
Jurisdiction
Australia
Judgment Date
08 September 2023
Procedural Posture
Contempt Motion / Hearing and Final Determination
Outcome
Contempt motion dismissed
Legal Topics
Contempt of Court, Breach of Undertakings, Civil Vs Criminal Contempt
Equity Civil Procedure Contempt of Court Breach of Undertakings Civil Vs Criminal Contempt

Case Brief

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Parties

Jared Novelly

Plaintiff

Tamqia Pty Ltd

First Defendant

Marie Bolton

Second Defendant

Procedural Posture

Contempt Motion / Hearing and Final Determination

Legal Issues

  1. 1 Whether the defendants' breaches of court undertakings were contumelious and thus criminal contempts
  2. 2 Whether the procedural requirements and proper construction of undertakings were followed and met

Ratio Decidendi

Because the statements of charge expressly particularised breaches as contumacious (i.e., criminal contempt) and the applicant failed to prove contumelious conduct beyond reasonable doubt, the application for contempt must be dismissed. Although the defendants were found to have committed civil contempt (deliberate but not defiant breach of undertakings), the charges as pleaded only alleged criminal contempt and cannot be sustained on a lesser finding.

Court Disposition

Contempt motion dismissed

Orders

  • The further amended notice of motion is dismissed.
  • The plaintiff is to pay the defendants' costs of the contempt application.