Schnabel v Lui [2002] NSWSC 1184

Schnabel v Lui [2002] NSWSC 1184

Although a contempt charge had been brought, the plaintiffs did not establish on the balance of probabilities that the first defendant was likely to abscond or withdraw from the jurisdiction within Part 55 r 10(b). He had a pattern of travel between New South Wales and overseas, had always returned, retained substantial family connections in New South Wales, was already out of New South Wales when the motion was filed, and there was no hard evidence contradicting his stated intention to return at Christmas. The jurisdiction to issue a warrant was therefore not enlivened, and the application was dismissed.

Jurisdiction
Australia
Judgment Date
03 December 2002
Procedural Posture
Equity Proceedings; Application for Warrant for Arrest and Detention Under Supreme Court Rules 1970 Part 55 R 10 in Contempt Proceedings / Amended Notice of Motion by Plaintiffs for Issue of a Warrant for the First Defendant's Arrest Pending Hearing of a Contempt Charge
Outcome
Issue of warrant refused; plaintiffs' application for the issue of a warrant under Part 55 r 10 dismissed with costs payable to the first defendant.
Legal Topics
['attachment and Committal' 'warrant to Arrest Alleged Contemnor' 'mareva Relief' 'likely to Abscond or Withdraw From Jurisdiction' 'construction of Supreme Court Rules 1970 Part 55 R 10']
['civil Procedure' 'contempt of Court' 'equity'] ['attachment and Committal' 'warrant to Arrest Alleged Contemnor' 'mareva Relief' 'likely to Abscond or Withdraw From Jurisdiction' 'construction of Supreme Court Rules 1970 Part 55 R 10']

Case Brief

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Procedural Posture

Equity Proceedings; Application for Warrant for Arrest and Detention Under Supreme Court Rules 1970 Part 55 R 10 in Contempt Proceedings / Amended Notice of Motion by Plaintiffs for Issue of a Warrant for the First Defendant's Arrest Pending Hearing of a Contempt Charge

Legal Issues

  1. 1 ['Whether the plaintiffs had brought a charge of contempt for the purposes of Supreme Court Rules 1970 Part 55 r 10(a).' 'Whether it appeared to the Court that the first defendant was likely to abscond or otherwise withdraw himself from the jurisdiction of the Court within Supreme Court Rules 1970 Part 55 r 10(b).' 'Whether the word "likely" in Part 55 r 10 required probability on the balance of probabilities.' 'Whether "abscond" in Part 55 r 10 meant absconding from the jurisdiction and included a purpose of avoidance.' 'Whether, if the preconditions were satisfied, the Court should exercise its discretion to issue a warrant.']

Ratio Decidendi

Although a contempt charge had been brought, the plaintiffs did not establish on the balance of probabilities that the first defendant was likely to abscond or withdraw from the jurisdiction within Part 55 r 10(b). He had a pattern of travel between New South Wales and overseas, had always returned, retained substantial family connections in New South Wales, was already out of New South Wales when the motion was filed, and there was no hard evidence contradicting his stated intention to return at Christmas. The jurisdiction to issue a warrant was therefore not enlivened, and the application was dismissed.

Court Disposition

Issue of warrant refused; plaintiffs' application for the issue of a warrant under Part 55 r 10 dismissed with costs payable to the first defendant.

Orders

  • ["The plaintiffs' application for the issue of a warrant under Part 55 r 10 is dismissed." "The plaintiffs pay the first defendant's costs of this application."]