THE REGISTRAR COURT OF APPEAL v PELECHOWSKI [1997] NSWCA 311

THE REGISTRAR COURT OF APPEAL v PELECHOWSKI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, BEAZLEY and STEIN JJA 11 July, 5 August and 20 August 1997, 28 October 1997 [1997] NSWCA 311

CONTEMPT OF COURT — breach of injunction — notice — party in court when injunction pronounced DISTRICT COURT — jurisdiction to issue Mareva injunctions

The opponent was one of two defendants to proceedings in the District Court for the recovery of moneys lent by the plaintiff. The District Court Judge found for the plaintiff on 15 April 1994 and ordered that the defendants be restrained from selling, disposing of, or encumbering land owned by them as joint tenants. The opponent was present in Court when that order was made. On 29 April 1994 the opponent and the other defendant executed a mortgage over the land the subject of the Mareva injunction. On 2 June 1995 the allegation of contempt of court was referred by Twigg DCJ to the Supreme Court.

HELD: (1) The District Court has power to order Mareva injunctive relief under s46(1) of the District Court Act. Riley McKay Pty Ltd v McKay & Anor [1982] | NSWLR 264 considered. (2) The opponent understood the terms of the order which were clear and unambiguous. (3) As the opponent was in Court when the order was made, it was binding on him from the time it was made. M'Niel v Garratt (1841) Cr & Ph 98 (41 ER 427) applied. Hearn v Tennant (1807) 14 Ves Jun 137 (33 ER 473) considered. (4) The opponent was guilty of contempt of court by a wilful breach of the order in executing the mortgage.

Handley JA The claimant by summons filed on 19 August 1996 initiated proceedings for contempt of court against the opponent, Karl Pelechowski. A second opponent, Penelope Stephens, was named in the summons but she may be ignored for present purposes as she was never served. The statement of charge alleged that the opponent was guilty of contempt of court in that, in or about 29 April 1994, he executed a mortgage over land at 9 Kippax Street, Erskine Park, NSW, in disobedience of an order made on 15 April 1994 by Judge Christie QC in the District Court restraining him from doing so.