Ryan v Wright [2004] NSWSC 749

New South Wales Supreme Court

CITATION : Ryan v Wright [2004] NSWSC 749 HEARING DATE(S) : 26/07/04,27/07/04,28/08/04 JUDGMENT DATE : 31 August 2004

JUDGMENT OF : Gzell J DECISION : Declaration made that first defendant was guilty of contempt of court in that, without justification, he breached the undertakings. Declarations against second defendant refused.

CATCHWORDS : PROCEDURE - Contempt, attachment and sequestration - Whether undertakings referring to a definition in a shareholder's agreement were too vague and imprecise to be enforced - Whether the undertakings should be construed in terms of a provision in the shareholder's agreement on which they were based - Whether counsel's opening that the undertakings were, relevantly, the same as the provision in the shareholder's agreement debarred the Court from considering any other case - Whether an inaccurate description of a business in the shareholder's agreement should be struck out under the falsa demonstratio non nocet maxim - Whether a presumption of continutiy of actions taken before the giving of the undertakings should be drawn - Whether inferences should be drawn from telephone calls charged to the mobile account of a defendant and emails sent and received at his email address that they were made or received by him - Whether the charges were proved beyond a reasonable doubt LEGISLATION CITED : Corporations Act 2001 (Cth) Acts Interpretation Act 1901 (Cth) Alexander v Crawford [2003] NSWSC 426 Commissioner of Water Resources v Federated Engine Drivers' and Firemen's Association of Australasia Queensland Branch (1988) 2 Qd R 385 Adamastos Shipping Co Ltd v Anglo-Saxon Petroleum Co Ltd [1959] AC 133 Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387 Australian Consolidated Press Ltd v Morgan (1964-1965) 112 CLR 483 Microsoft Corporation v Marks (1996) 69 FCR 117 Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) (2001) 2 Qd R 118 Flocast Australia Pty Ltd v Purcell (2000) 176 ALR 354 CASES CITED : R v Noonan (2002) 127 A Crim R 599 Witham v Holloway (1995) 183 CLR 525 Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Chamberlain v The Queen (No 2) (1983-1984) 153 CLR 521 Shepherd v The Queen (1990) 170 CLR 573 Hope v Bathurst City Council (1980) 140 CLR 1 Smith v Capewell (1979) 142 CLR 509 Lewison, The Interpretation of Contracts, Sweet & Maxwell, London, 1997 Wigmore on Evidence, 3rd ed, Little, Brown & Co, Boston, 1979, vol 2 Michael Ryan - 1st Plaintiff PARTIES : DeMorgan Information Security Systems Pty Ltd - 2nd Plaintiff Craig Wright - 1st Defendant Lynn Wright - 2nd Defendant FILE NUMBER(S) : SC 4638/03 COUNSEL : Dr J G Renwick/ Mr P W Kerr - Plaintiffs Mr G B Colyer - Defendants SOLICITORS : Colin Biggers & Paisley Solicitors Michie, Shehadie & Co Solicitors