Globaltel Australia P/L v MCI Worldcom Australia P/L [2001] NSWSC 545

New South Wales Supreme Court

CITATION : Globaltel Australia P/L v MCI Worldcom Australia P/L [2001] NSWSC 545 revised - 3/07/2001 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1629/01 HEARING DATE(S) : 19/06/01 JUDGMENT DATE : 19 June 2001

PARTIES : Globaltel Australia Pty Limited (ACN 089 923 464) (Plaintiff) MCI Worldcom Australia Pty Limited (ACN 081 001 194) (Defendant) JUDGMENT OF : Santow J

COUNSEL : M J Cohen (Plaintiff) C R C Newlinds (Defendant) SOLICITORS : Dilanchian (Plaintiff) Baker & McKenzie (Defendant) CATCHWORDS : PROCEDURE — Contempt — Court undertaking as price of ex parte injunction — no waiver — purging contempt. Amalgamated Television Services Pty Limited v John Marsden [2001] NSWCA 32 Attorney-General for New South Wales v Mayas Pty Ltd (1988) 14 NSWLR 342 CASES CITED : Hudson v Booth (1902) 28 VLR 130 Roberts v Albert Bridge Co (1873) LR 8 Ch App 753 Witham v Holloway (1995) 183 CLR 525 DECISION : Contempt occurred.

REVISED — 3 July, 2001 IN THE SUPREME COURT OF NEW SOUTH WALES IN EQUITY

SANTOW J

No. 1629/01 Globaltel Australia Pty Limited (ACN 089 923 464) Plaintiff MCI Worldcom Australia Pty Limited (ACN 081 001 194) Defendant

JUDGMENT — ex tempore 19 June 2001

INTRODUCTION 1 This is an application brought by the Defendant/Applicant against the Plaintiff/Respondent, seeking to invoke the Court's sanctions for an alleged contempt based on a claimed breach of a court undertaking. The essential complaint does not rely upon any contempt in the admittedly late (40 minutes) delivery of a Bank Guarantee undertaken to the Court as the price of the ex parte injunction granted to the Plaintiff. Rather it relies upon the fact that the guarantee provided failed to satisfy the requirements of the Court order made on 1 March 2001, in that the guarantee terminated on 10 April 2001. 2 The orders that were made were obtained upon the Plaintiff "undertaking to provide a banker's guarantee in the amount of $150,000". There was no qualification such as would entitle the Plaintiff to have the guarantee terminate before ascertainment of the monies for which the guarantee was (along with a fixed charge) to be security. Those monies it was to secure comprised: