Sigalla v TZ Limited [2011] NSWCA 334

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sigalla v TZ Limited [2011] NSWCA 334 Hearing dates: 23 September 2011 Decision date: 04 November 2011 Before: Macfarlan JA at [1]; Young JA at [2]; Handley AJA at [42] Decision: (1) Appeal allowed. (2) Orders 1, 2 and 3 made by Austin J on 23 December 2009 are set aside. (3) The Court does not disturb the order for costs made below. (4) There is to be no order for costs of the appeal. (5) Liberty to apply to a judge of the Equity Division if there is difficulty in repayment of the fines. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: INTERPRETATION- "freezing order" not allowing the "selling" of property- contract for sale entered into- what constitutes "selling"- an injunction against selling something is clearly breached by entering into a contract for sale in respect of the property.

PROCEDURE- contempt of court- interlocutory "freezing order" against second appellant corporation breached through actions of first appellant agent- first appellant was not a party to the original order but was found guilty of contempt by primary judge- non-party to an order cannot be in breach of order but may otherwise be guilty of contempt of court- primary judge erred in not distinguishing between the first and second appellants- standard of proof for civil and criminal contempt is beyond reasonable doubt- primary judge did not refer to the need for proof beyond reasonable doubt- primary judge drew inferences as if hearing a civil matter- appeal allowed. Cases Cited: Attorney General v Newspaper Publishing plc [1988] Ch 333 Attorney General v Times Newspapers Ltd [1992] 1 AC 191 CCOM Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521 Hamilton v Whitehead [1988] HCA 65; 166 CLR 121 Marengo v Daily Sketch and Sunday Graphic Ltd [1948] 1 All ER 406 Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16 Reid v Howard (1993) 31 NSWLR 298 Wellesley (Lord) v Mornington (Earl) (1848) 11 Beav 180; 50 ER 785 Witham v Holloway [1995] HCA 3; 183 CLR 525 Zhu v Treasurer of NSW [2004] HCA 56; 218 CLR 530 Category: Principal judgment Parties: Andrew John Sigalla (First Appellant) ZMS Investments Pty Ltd (Second Appellant) TZ Limited (Respondent) Representation: Counsel: G O'L Reynolds SC, J C Hewitt and G R Rubagotti (Appellants) L Pozniak (Solicitor) (Respondent - excused from further attendance) Solicitors: Banki Haddock Fiora (Appellants) Landerer & Company (Respondent) File Number(s): CA 2009/290315 Decision under appeal Citation: TZ Ltd v ZMS Investments Pty Ltd [2009] NSWSC 1465 Date of Decision: 2009-12-23 00:00:00 Before: Austin J File Number(s): SC 4286/09