Chhoeu v Watson [2005] NSWSC 666

New South Wales Supreme Court

CITATION : Chhoeu v Watson [2005] NSWSC 666

HEARING DATE(S) : 28/06/05, 29/06/05

JUDGMENT DATE : 30 June 2005

JUDGMENT OF : White J

DECISION : Notice of motion filed on 28 February 2005 is dismissed with costs.

CATCHWORDS : PRACTICE AND PROCEDURE - Contempt of court - Alleged failure to comply with court orders - Alleged breach of order that defendant provide accounts kept in accordance with another order - Statement of Charge that defendant failed to provide "any" of the accounts stipulated - No case to answer submission - Whether evidence that defendant prepared such accounts - Meaning of "accounts" as distinct from "records" - Construction of orders - Whether provision of "some" accounts suffices - Plaintiff's evidence not capable of proving statement of charge beyond reasonable doubt - Charge dismissed.

Australian Consolidated Press Limited v Morgan (1965) 112 CLR 483 Kirkpatrick v Kotis [2004] NSWSC 1265 Wyszynski v Bill [2005] NSWSC 110 CASES CITED : Baiada & Ors v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52; [1999] NSWCA 139 Hawksford v Hawksford [2005] NSWSC 463 Witham v Holloway (1995) 183 CLR 525

Simon Chhoeu PARTIES : v Michael Watson

FILE NUMBER(S) : SC 3877/04

Plaintiff: M Watts COUNSEL : Defendant: G McVay

Plaintiff: Wintergate Solicitors SOLICITORS : Defendant: Spencer Whitby & Co

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

WHITE J

Thursday, 30 June 2005

3877/04 Simon Chhoeu v Michael Watson JUDGMENT 1 HIS HONOUR: I am dealing with a motion brought by the plaintiff for an order that the defendant be punished for contempt of court. The plaintiff has closed his case. The defendant submits there is no case to answer. 2 The contempt charge arises from orders made by Mr Justice Hamilton on 21 July 2004. The defendant had sold his accountancy practice to the plaintiff. The plaintiff alleged that the defendant was in breach of provisions of the agreement for sale which restrain the defendant from soliciting clients and obliged him to use his best endeavours to retain the benefit of the goodwill of the practice for the plaintiff. 3 His Honour made an interlocutory order, restraining the defendant from soliciting former clients of the practice with some exceptions. His Honour also ordered, until further order, that: "(2) The defendant keep full accounts and records in relation to work carried out on or after 1 July 2004 directly or indirectly by or on behalf of the defendant or by or on behalf of any accounting practice with which the defendant has any association where that work is carried out for any client who was a client of the accounting practice 'Watson, Le & Partners' as at 18 April 2003 with the exception of the first clients named in the schedule of clients attached hereto.