REGISTRAR COURT OF APPEAL v PELECHOWSKI [1998] NSWCA 231

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

HANDLEY, BEAZLEY and STEIN JJA 10 December 1997, 3 February 1998

[1998] NSWCA 231 CONTEMPT OF COURT — Breach of Mareva Injunction — penalty.

On 28 October 1997 the Court found that the opponent was guilty of contempt of court as the result of his disobedience of a Mareva injunction granted by Judge Christie QC on 15 April 1994. The breach arose from a second mortgage granted by the opponent and his co-owner over a house property on 29 April 1994, which secured advances by the second mortgagee to the opponent and his co-owner of $25,000 and $20,000 made on 29 April and 11 July 1994. The monies advanced had been used to pay other creditors in full or to fund litigation in which the contemnor was engaged.

The Court heard evidence and submissions on the question of penalty on 12 December 1997. The judgment of $105,000 in favour of the plaintiff who obtained the Mareva injunction remained wholly unsatisfied and the contemnor made no offer of payment or restitution.

HELD: The contemnor was sentenced to a fixed term of imprisonment for 6 months as the minimum required to vindicate the authority of the courts and the integrity and effectiveness of injunctive orders.

Handley, Beazley and Stein JJA. On 28 October 1997 the court declared that the opponent Karl Pelechowski (the contemnor) was guilty of contempt of court in that on 29 April and 9 July 1994 he committed wilful breaches of an injunction granted by Christie DCJ on 15 April 1994. The court has now had the opportunity of hearing evidence and submissions on the question of penalty.

In its judgment the court found that the contemnor, who had been present at the time the order was made by the judge, understood the meaning of the injunction. Handley JA found that the opponent, contrary to his evidence before this court, was actively and astutely participating in the proceedings before Judge Christie QC and 'appeared to be aware of what was happening'. His Honour rejected Mr Pelechowski's evidence to the contrary, categorising it as 'unbelievable and I do not believe it' (p 11).