Mirembe Pty Ltd v Craig Dangar [2009] NSWSC 173

New South Wales Supreme Court

CITATION : Mirembe Pty Ltd v Craig Dangar [2009] NSWSC 173

HEARING DATE(S) : 23 February 2009 JURISDICTION : Equity Division Duty Judge List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 23 February 2009

DECISION : Respondent ordered to appear to answer motion

CATCHWORDS : CONTEMPT - Procedure - where respondent does not appear to answer motion

LEGISLATION CITED : (NSW) Supreme Court Rules 1970, Part 55 (NSW) Uniform Civil Procedure Rules 2005, r 40.7(3)

CATEGORY : Procedural and other rulings

CASES CITED : Scott v O'Riley [2007] NSWSC 560

PARTIES : Mirembe Pty Ltd as Trustee of Verna Stewart Superannuation Fund (plaintiff) Craig Gerard Dangar (defendant)

FILE NUMBER(S) : SC 4543/08

COUNSEL : Mr J J Hyde (plaintiff)

SOLICITORS : Certus Law (plaintiff)

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

BRERETON J

Monday 23 February 2009

4543/08 Mirembe Pty Limited v Craig Dangar JUDGMENT (ex tempore) 1 HIS HONOUR: On 12 November 2008, Windeyer J made orders that the defendant produce to the Court within seven days of service of the order on him all records, minutes, notes, correspondence and other documents whether in electronic or hard copy form made by the trustees of the Verna Stewart Superannuation Fund and all other documents whether in electronic or hard copy form of all records, minutes, notes, correspondence and other documents held of investments made by the trustees and/or defendants while acting as trustee of the Fund. It appears from the affidavit of service of Keiani Jane Johnstone, sworn on 12 December 2008, that that order was served personally on the defendant on 11 December 2008 at 3.20pm. The engrossed form of the order, as the evidence discloses, did not contain the notice to party bound required by (NSW) Uniform Civil Procedure Rules 2005, r 40.7(3), if it is to be used in connection with an application for committal or sequestration. 2 On 22 January 2009, Fullerton J made a freezing order against the defendant, which included in paragraph 3 an order that the defendant must at or before the further hearing on the return day (which was 28 January 2009) to the best of his ability "inform the applicant in writing of all your assets worldwide giving their value, location and details ... and within five working days after being served with the order swear and serve on the applicant an affidavit setting out that information". It appears from the affidavit of service of the Adam McGuire, sworn 23 January 2009, that the freezing order was served on the defendant on 22 January 2009 at 7.10pm. The order bore the form of penal notice provided for by the applicable Practice Note and in compliance with UCPR, r 40.7(3). 3 The evidence before the Court appears to establish that no material has been provided to the plaintiff in accordance with the order of Windeyer J, nor any information provided in accordance with order 3 made by Fullerton J. On 10 February 2009 the plaintiff filed a motion seeking orders that the defendant be dealt with for contempt insofar as he has failed to comply with the order of Windeyer J, namely, that he produce to the Court within seven days of service all records of the Verna Stewart Superannuation Fund, and insofar as he has failed to comply with the order of Fullerton J, requiring that by 30 January 2009 he swear and serve an affidavit setting out all his assets worldwide, giving their value, location and details and the extent of his interests in the assets. It is unclear on the face of the Motion whether the plaintiff is seeking to proceed for contempt under (NSW) Supreme Court Rules Part 55, or for committal as a means of enforcement under UCPR Part 40, although I am informed that the plaintiff relies on Part 55. In those circumstances, one would expect to see a statement of charge either subscribed to or served with the Notice of Motion, and I am not yet persuaded that that requirement is sufficiently met by a Notice of Motion which simply refers to the relevant orders and alleges they have not been complied with, although it may be that that will prove to be sufficient.