Wyszenko v Wyszenko [2012] NSWSC 732

Wyszenko v Wyszenko [2012] NSWSC 732

Contempt was not established because, on the accepted evidence, the defendant was unable to make the $40,000 payment when due and there was no evidence that she had moneys with which to pay the judgment debt; her failure to comply with the order within time therefore could not be described as deliberate or wilful.

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 June 2012
Procedural Posture
Civil Contempt Application for Failure to Comply With a Court Order to Pay Costs / Hearing of Plaintiff's Notice of Motion Filed on 23 January 2012
Outcome
Plaintiff's notice of motion dismissed with no order as to costs.
Legal Topics
['civil Contempt' 'failure to Comply With Order to Pay Costs' 'wilful or Deliberate Breach' 'enforcement of Money Judgment']
['contempt of Court' 'civil Procedure'] ['civil Contempt' 'failure to Comply With Order to Pay Costs' 'wilful or Deliberate Breach' 'enforcement of Money Judgment']

Source-derived case record

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Procedural Posture

Civil Contempt Application for Failure to Comply With a Court Order to Pay Costs / Hearing of Plaintiff's Notice of Motion Filed on 23 January 2012

Legal Issues

  1. 1 ['Whether the defendant was guilty of civil contempt for failing to comply with the order made on 11 October 2011 to pay $40,000 by 25 October 2011.' "Whether the defendant's failure to make the payment was deliberate or wilful where she said she was unable to pay." 'Whether processes of contempt should be used in aid of enforcement of a money judgment when ordinary judgment enforcement remedies are available.']

Ratio Decidendi

Contempt was not established because, on the accepted evidence, the defendant was unable to make the $40,000 payment when due and there was no evidence that she had moneys with which to pay the judgment debt; her failure to comply with the order within time therefore could not be described as deliberate or wilful.

Court Disposition

Plaintiff's notice of motion dismissed with no order as to costs.

Orders

  • ["Order that the plaintiff's notice of motion dated 23 January 2012 be dismissed with no order as to costs." 'Exhibit A may be returned, but the documents comprising Exhibit A are to be retained by Ms Wyszenko, at least until the expiry of 28 days, and if any appeal is filed, until the determination of such an...