NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97

Supreme Court New South Wales

Medium Neutral Citation: NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 Hearing dates: 10 September 2021 Date of orders: 11 February 2022 Decision date: 11 February 2022 Jurisdiction: Equity Before: Bell P Decision: 1. Order that the First Respondent, Alexander Stephen Corry, be sentenced, on the first charge against him, to a term of imprisonment of three months commencing from the date of his arrest. 2. Order that the First Respondent, Alexander Stephen Corry, be sentenced, on the second charge against him, to a term of imprisonment of three months to be served concurrently with the sentence imposed for the first charge. 3. Order that the First Respondent, Alexander Stephen Corry, be sentenced, on the fourth charge against him, to a term of imprisonment of two months to be served concurrently with the sentence imposed for the first charge. 4. Order that a warrant for the committal of the First Respondent, Alexander Stephen Corry, to prison for the said term of three months be issued. 5. Order that the warrant for the committal of the First Respondent, Alexander Stephen Corry, to prison be executed forthwith. 6. Order that the Second Respondent, Boriana Corry, pay a fine of $15,000. 7. Order that Order 6 is to be suspended on the condition that the Second Respondent, Boriana Corry, furnishes to the Registrar of the Equity Division, within 18 months of the stay of this Order (made pursuant to Order 8) being lifted, proof that she has performed 25 hours of community service for a school, church or other registered charitable organisation. 8. Order that the execution of Orders 4, 5 and 6 be stayed pending the determination of the First and Second Respondents' foreshadowed appeal against the declarations that each of them was in contempt of this Court. 9. The First Respondent is to pay the Applicants' costs of the proceedings in respect of the charges against him. 10. The Second Respondent is to pay the Applicants' costs of the proceedings in respect of the charges against her. Catchwords: CONTEMPT – civil contempt – penalties – imprisonment – where contemnor should only be committed to prison as a last resort – where common law purposes and principles of sentencing apply – high degree of necessity for deterrence – where contemnor engaged in serious, deliberate and contumacious conduct in attempt to frustrate search orders made by the Court – consideration of apology to the Court– where contemnor is admitted solicitor and officer of the Court – where conduct of contemnor and evidence regarding penalty warrant custodial sentence – contemnor to serve a term of three months' imprisonment CONTEMPT – civil contempt – penalties – where contemnor should only be committed to prison as a last resort – where contemnor engaged in serious conduct in breach of prohibited contact order – where contemnor maintains innocence despite proffering unconditional apology to the Court – where contemnor's conduct was secondary to that of co-contemnor – imposition of a fine – suspension of sentence conditional upon performance of period of community service SENTENCING – civil contempt – penalties – imprisonment – where contemnor should only be committed to prison as a last resort – where common law purposes and principles of sentencing apply – where Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to civil contempt proceedings – high degree of necessity for deterrence – where contemnor engaged in serious, deliberate and contumacious conduct in attempt to frustrate search orders made by the Court – relevance of apology – where contemnor is admitted solicitor of the Court – where conduct of contemnor and evidence regarding penalty warrant custodial sentence – contemnor to serve a term of three months' imprisonment SENTENCING – contempt – civil contempt – where common law purposes and principles of sentencing apply – where Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to civil contempt proceedings – relevant factors of sentence – seriousness of contempt – contemnor's culpability – motive for contempt – expression of contrition by contemnor – antecedents of contemnor – contemnor's personal circumstances – necessity of deterrence – necessity to punish contemptuous conduct Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Supreme Court Rules 1970 (NSW) r 55.13 Cases Cited: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 3) [2017] FCA 522 Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 629 Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 Browne v Dunn (1893) 6 R 67 Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494; [2006] FCA 83 Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 Mirus Australia Pty Ltd v Gage [2018] NSWSC 35 NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741 NHB Enterprises Pty Ltd v Ghaly [2022] NSWSC 96 R v Edwards (1996) 90 A Crim R 510 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 Sun v He (No 2) [2020] NSWSC 1298 Category: Sentence Parties: NHB Enterprises Pty Ltd (First Applicant) Finn Pharmaceuticals Pty Ltd (Second Applicant) Alexander Stephen Corry (First Respondent) Boriana Corry (Second Respondent) Representation: Counsel: