Supreme Court New South Wales Medium Neutral Citation: Toyota Finance Australia Limited v AJI Enterprise Group Pty Ltd [2019] NSWSC 33 Hearing dates: 29 November 2018 Date of orders: 05 February 2019 Decision date: 05 February 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Dismiss the plaintiff's motion filed 1 May 2018. (2) Order that there be no order as to costs of the plaintiff's motion with the intent that each party bear its own costs of the motion, without prejudice to any entitlement the plaintiff may have to recover those costs under its loan agreements with the first defendant to which the second defendant is party as guarantor. (3) List the matter for further directions, as necessary, before the Registrar on a date to be fixed. Catchwords: PROCEDURE – Contempt – proof beyond reasonable doubt – burden of proof rests upon the party alleging contempt of court – criminal standard of proof for civil contempt – contempt must be wilful and not merely casual, accidental or unintentional Legislation Cited: Civil Procedure Act 2005 (NSW), s 93 Evidence Act 1995 (NSW), ss 69, 128 Cases Cited: Anderson v Hassett [2007] NSWSC 1310 Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21 Australian Securities and Investments Commission (ASIC) v Rich [2005] NSWSC 417 Australian Securities and Investments Commission (ASIC) v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62 Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26 Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964 Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 Matthews v Australian Securities Investment Commission [2009] NSWCA 155 Metcash Trading Ltd v Bunn (No 5) (2009) FCA 16 Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 National Australia Bank v King [2003] NSWSC 525 Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 2) [2018] NSWSC 1776 Roach v Page (No 15) [2003] NSWSC 939 Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 Wood v Staunton (No 5) (1996) 86 A Crim R 183 Texts Cited: Nil Category: Procedural and other rulings Parties: Toyota Finance Australia Limited (Plaintiff) AJI Enterprise Group Pty Ltd (First Defendant) Joseph Joukhador (Second Defendant) Representation: Counsel: DM Farrar (Solicitor) (Plaintiff) D Yakenian (Solicitor) (Second Defendant) Solicitors: Farrar Lawyers (Plaintiff) Legal Edge Australia (Second Defendant) File Number(s): 2018/0039358 Publication restriction: Nil Judgment 1. HER HONOUR: Before me on 29 November 2018 was an application by Toyota Finance Australia Limited (Toyota), pursuant to a notice of motion filed 1 May 2018, for the second defendant, Mr Joseph Joukhador, to be dealt with for contempt of court. 2. The statement of charge annexed to the notice of motion sets out three separate counts of contempt. 3. The first count relates to orders made by McDougall J, on an ex parte basis in the duty list, on 6 February 2018 (the First Orders) (see [15] below), including, relevantly, an order restraining Mr Joukhador from disposing of or otherwise dealing with any of 10 identified vehicles (the registration numbers of which are set out in the schedule to these reasons and which are numbered for convenience in these reasons consecutively as Vehicles 1-10) (referred to here collectively as "the Vehicles") without the prior written consent of Toyota and from interfering with Toyota's recovery of possession of the Vehicles or any part of the Vehicles. The statement of charge alleges that on or about 8 March 2018 Mr Joukhador attended upon the New South Wales Road and Maritime Services (RMS) and attempted to transfer the registration of Vehicle 1; and that the attempt to transfer the registration of Vehicle 1 without Toyota's consent constituted a dealing that was in breach of O 5(a) of the First Orders. 4. The second count relates to orders made by me, again on an ex parte basis in the duty list, on 9 February 2018 (the Second Orders) (see [16] below), including an order that the defendants deliver up to Toyota forthwith the 10 Vehicles and an order that, in the event that the defendants did not deliver up the Vehicles forthwith in accordance with those orders, Mr Joukhador provide to Toyota no later than 48 hours after service of the Orders on him at a specified email address (by way of discovery in aid of enforcement of the Orders) written notice of the whereabouts of the Vehicles and each of them. The statement of charge alleges that, in breach of O 1 of the Second Orders, Mr Joukhador did not deliver to Toyota seven of the Vehicles (Vehicles 1, 2, 4, 6, 7, 8 or 10), immediately or at all. 5. As to the balance of the 10 Vehicles, as at 19 April 2018, possession had been recovered by Toyota of Vehicles 3, 5 and 9 through its repossession agents (see affidavit sworn 26 April 2018 by its Loss Recoveries Manager, Mr Luke Rowles, at [35]) and, as will be seen in due course, ultimately Toyota recovered possession of all but three of the 10 Vehicles (the yet to be recovered vehicles as at the time of the contempt hearing being Vehicles 1, 4 and 7). 6. The third count also relates to the Second Orders. It is contended that, in breach of O 3 of the Second Orders, Mr Joukhador did not provide Toyota with written notice of the whereabouts of any of the Vehicles within 48 hours of service of the Second Orders or at all. 7. In support of its application that Mr Joukhador be found guilty of contempt, Toyota relied upon a number of affidavits: affidavits from Mr Rowles and from its solicitor (Mr David Farrar) and his employee (Ms Danielle Francis); and various documents exhibited to those affidavits were tendered. For Mr Joukhador, a number of affidavits sworn by him were read and various documents were tendered. Mr Joukhador was required by Toyota for cross-examination and was in due course cross-examined by Mr Farrar (having failed to attend court when the contempt motion was first listed for hearing). 8. For the reasons that I set out below, I am not satisfied beyond reasonable doubt that Mr Joukhador has committed a contempt of Court. There is no dispute that Mr Joukhador failed to deliver up to Toyota seven of the 10 Vehicles in accordance with the Second Orders and failed to provide written notice of the whereabouts of those Vehicles within the time specified (conduct the subject of the second and third counts of contempt). There is, on the other hand, some room for doubt as to whether Mr Joukhador attempted to transfer the registration of Vehicle 1 on 8 March 2018 as alleged in the first count of contempt. Whether or not he did so, I am not satisfied beyond reasonable doubt that Mr Joukhador was aware of the terms of the respective orders prior to July 2018 (when he was arrested and brought before me, on Toyota's application, to answer the contempt charges). For completeness, I note that I am also not persuaded beyond reasonable doubt that Mr Joukhador was in physical possession of the Vehicles at the time the First and Second Orders were made in February 2018; nor that he was in a position then to recover possession of the Vehicles from whoever did have possession of them. 9. It is clear (having regard to the evidence as to telephone calls he made to Toyota in the period from around February 2018) that Mr Joukhador knew from around then, if not before, that Toyota was pressing for payment of the amounts the subject of its loans to the first defendant in respect of the acquisition of the Vehicles and, when that was not forthcoming, that Toyota was pressing for the return of the Vehicles. And, as I explain in due course; I did not find Mr Joukhador to be a credible or reliable witness. Nevertheless, I am not satisfied beyond reasonable doubt that he knew until early July 2018 what orders had been made in relation to the Vehicles, as opposed to having been put on notice that some orders had been made in relation to the Vehicles and that he had an obligation to return them. For that reason, I must dismiss the notice of motion. 10. I make no orders as to costs, with the intent that each party should bear its, or his, own costs of the motion (without prejudice to any entitlement Toyota may have to claim such costs under the terms of its loan contracts in respect of the Vehicles). I accept that Toyota has been unsuccessful in obtaining the relief sought on its contempt application. However, I consider it appropriate in the present case not to make an order for costs to follow the event, in circumstances where I consider that Mr Joukhador's conduct (not least in turning a blind eye to the attempts by Toyota to impress upon him the seriousness of the matter, including it being drawn to his attention by telephone that a warrant had been issued for arrest in advance of its execution) has caused Toyota unnecessarily to incur costs and has left it with little choice but to press for relief of the kind now sought in an attempt to recover, or force Mr Joukhador to disclose the whereabouts of, the Vehicles. Mr Joukhador's conduct in the face of Toyota's claim for recovery of the Vehicles has been obstructive to say the least. 11. As to the substantive proceedings, I entered judgment in February 2018 on Toyota's claim for possession of the Vehicles. If there be any remaining issues to be determined in the substantive proceedings I will refer the matter to the Registrar's list for directions. Background 1. By way of general background, the dispute the subject of the proceedings in this Court relates to a number (eleven in total) of motor vehicle contracts entered into between Toyota and the defendants (the first defendant as borrower and Mr Joukhador as guarantor), under which moneys were advanced to the first defendant in connection with the acquisition of particular motor vehicles and the respective vehicles were mortgaged as security for the loans (see for example the documentation in relation to Vehicle 1, which is part of Exhibit A at pp 1-20). 2. Toyota contends that the first defendant (who took no part in the contempt hearing) and Mr Joukhador are in breach of all of the agreements (see the affidavit sworn 1 February 2018 by Mr Rowles (the first Rowles affidavit) at [8]). Having regard to Mr Joukhador's own evidence it appears that there has been a breach, at least, of the prohibition in those agreements against parting with possession of the Vehicles without Toyota's consent, but as I understand it the breaches which precipitated recovery action related to non-payment of amounts due under the contracts. 3. Toyota engaged third party repossession agents to recover the Vehicles (the first Rowles affidavit at [8]). As at 1 February 2018, when Mr Rowles swore his first affidavit, Toyota had only recovered one of the 11 Vehicles (that being recovered on 25 October 2017; see Mr Rowles' affidavit sworn 1 February 2018 at [116]). By the time Mr Rowles swore his April 2018 affidavit, Toyota had recovered a further 3 Vehicles (Vehicles 3, 5 and 9). Commencement of proceedings and First Orders 1. These proceedings were commenced by Toyota on 6 February 2018, by way of the filing of a statement of claim and a notice of motion seeking short service and interlocutory relief against the two defendants. That application came before McDougall J in the duty list that day. His Honour made orders relevantly including: 5. Subject to further order, the defendants by themselves, their servants and agents be restrained from: a. disposing of or otherwise dealing with any of the Vehicles without the prior written consent of the plaintiff; and b. interfering with the plaintiff's recovery of possession of the Vehicles or any part of the Vehicles. [Each of the vehicles comprised in the collective term "the Vehicles" was defined in order 4 by reference to its vehicle model, registration number and Vehicle Identification Number. I do not propose here to set out those details.] … 7. A copy of these orders, together with the Documents, are to be served on the defendants by transmitting them to email address [xxx@hotmail.com] by 2pm today and posting them to [xxx] in the state of New South Wales. Second Orders 1. The matter was stood over by McDougall J to the duty list on 9 February 2018. On that occasion, the matter came before me. There was no appearance by or for the first defendant, nor did Mr Joukhador appear. After being taken through the affidavit material then filed for Toyota, I made orders including an order, pursuant to s 93 of the Civil Procedure Act 2005 (NSW), that there be judgment for Toyota against the defendants requiring the defendants forthwith to deliver up to Toyota the Vehicles (again defined by reference to the vehicle model, registration number and Vehicle Identification Number of the 10 Vehicles) and an order that: 3. In the event that the defendants do not deliver up the Vehicles forthwith in accordance with these orders, the second defendant, no later than 48 hours of service of these orders on him at email address [xx@hotmail.com] provide to the plaintiff (by way of discovery, in aid of enforcement of the orders) written notice of the whereabouts of each of the vehicles. Notice of motion for writ for delivery of goods 1. On 20 February 2018, Toyota filed a notice of motion for writs for delivery of the Vehicles to be issued (affidavit sworn 26 March 2018 by Ms Danielle Francis, a paralegal employed by Toyota's solicitor, at [5]) and, on 23 February 2018 (see [20] below), writs of delivery were issued in respect of each of the Vehicles. Entry of the first defendant into liquidation 1. On 21 February 2018, the first defendant was placed into liquidation. Mr Andrew Scott and Mr Glenn Livingstone were appointed as the company's liquidators. 2. Mr Rowles, in his affidavit sworn 26 April 2018 (at [7]), deposes that on 21 February 2018 the company's liquidators requested a search of the owner history and any motor vehicles currently or previously registered in the name of the first defendant and on 22 February 2018 received a response from RMS indicating that none of the Vehicles the subject of these orders was currently registered in the name of the first defendant. Issue of writs for delivery 1. As noted above, on 23 February 2018, writs for delivery up of the Vehicles were issued. On execution of the writs the New South Wales Office of the Sheriff did not recover any of the Vehicles (see affidavit sworn 26 March 2018 by Ms Francis at [6]; [7]). Contact between Mr Joukhador and the liquidators/Toyota 1. In her affidavit of 3 July 2018, Ms Francis, a legal secretary/paralegal employed by Toyota's solicitor, refers to documents received from the liquidators' office recording or referring to communications between Mr Joukhador and the liquidators' office on 27 February 2018 (see [4]-[5] and the documents forming Exhibit D on this application). 2. In particular, those documents include file notes dated 27 February 2008 at 9.04am and again at 12pm, on PPB Advisory (the liquidators') letterhead, referring to calls from Mr Joukhador. In the first (at CB 709), Ms Emily Nguyen, under the heading "Trading status" records that the director (Mr Joukhador) advised that "[h]e's been driving the vans in the last week" and that "[t]he Company was trading at the time of the call". In the second (at CB 711), "AT" (who I understand to be Mr Adam Treffiletti) records his notes of a telephone call with Mr Joukhador (who is described as being "generally very aggressive and abusive"), including the following: Regarding the debt to Toyota Finance: I noted that Toyota Finance had registered security interests over various vehicles and that they had not been paid since June/July last year. The director had no response. I raised the recent court order granted to Toyota Finance against the Company and the director requiring him to delivery [sic] up 10 motor vehicles to Toyota Finance. The director said that I could "come get them" but did not wish to tell me where the vehicles were located. [emphasis as per original] 1. Toyota relies on the second of those file notes as showing both an acknowledgment of the existence of the Orders and a deliberate refusal to comply with them. Mr Joukhador, in cross-examination, first said that he "probably did say that" (i.e., "come get them") (T 41.48); but later said that he did not recall (T 42.1). I note that there was an objection by Mr Joukhador to the admissibility of the file notes of third parties as to communications with Mr Joukhador on the ground of hearsay. I deal with that objection in due course (see [121] below). For present purposes, I simply note that although the file note apparently prepared by Mr Treffiletti records that he "raised the recent court order granted to Toyota … requiring … delivery up [of] 10 motor vehicles to Toyota …", presumably referring to the Second Orders, no detail is given as to what was said by him on that occasion; nor did he give evidence on the contempt application. There is nothing to suggest, for example, that any reference was made to the First Orders restraining Mr Joukhador from disposing of or dealing with the Vehicles, nor to the order made in the Second Orders for the provision of written notice of the whereabouts of the Vehicles (matters relevant to the first and third counts of contempt). 2. Mr Rowles has deposed that, on 5 March 2018, Mr Joukhador contacted a staff member at Toyota and was abusive and implicitly threatening (see the affidavit of Mr Rowles sworn 26 April 2018 at [20]). There is certainly evidence of threatening and abusive communications by Mr Joukhador to staff of Toyota (see the affidavit of Mr Rowles sworn 26 April 2018 at [18]-[23] and annexures thereto). However, of itself, the confrontational character of the communications does not permit an inference to be drawn either way as to whether Mr Joukhador had possession, or knew the whereabouts, of the Vehicles at that time; nor as to whether he had knowledge of the terms of the respective Orders that had by then been made. Attempted transfer of registration of one of the Vehicles 1. On 8 March 2018, Toyota received notice from the liquidators that Mr Joukhador had attempted to transfer the registration of one of the Vehicles to a third party (see the affidavit sworn 26 April 2018 of Mr Rowles at [10]). As noted above, this forms the basis of the first count of contempt. (Pausing here, I note that this seems inconsistent with the liquidators' earlier RMS search having disclosed that none of the Vehicles in question was registered in the company name (see [19] above) and highlights the difficulty of relying upon third party accounts of such enquiries, even though those may be admissible as business records.) 2. On 12 March 2018, Toyota wrote to Mr Joukhador contending that he was acting in breach of the Second Orders (see affidavit sworn 26 March 2018 of Ms Francis [8]). 3. Ms Francis has deposed that, on 14 March 2018, she received a telephone call from a person she believed to be Mr Joukhador. She deposes that in that telephone conversation Mr Joukhador said words to the effect "I am calling about some letters that Farrar [Toyota's solicitor] has sent to me" and left a contact telephone number (which, by reference to Mr Joukhador's evidence on this application, appears to be incorrect and, therefore, must either have been wrongly given at the time – intentionally or otherwise – or wrongly recorded) (see Ms Francis' affidavit sworn 26 March 2018 at [10]). 4. Toyota notes that the letters sent by Mr Farrar either attached or referred to orders. Toyota relies on this conversation, together with Mr Joukhador's conversation with the liquidators' office on 27 February 2018, as "strongly indicating" that Mr Joukhador "was fully aware of the existence of the Orders and made the decision not to comply with them". However, it is not suggested that, in the conversation with Ms Francis, Mr Joukhador identified the letters to which he was referring or indicated any knowledge of their contents. Contempt motion and making of Third Orders 1. On 1 May 2018, Toyota filed its notice of motion seeking (in addition to an order for Mr Joukhador to be brought before the Court to answer the contempt charge) freezing orders in respect of Mr Joukhador's assets up to the unencumbered value of $900,000. I heard the application for a freezing order (again on an ex parte basis) and, among other orders, I made freezing orders in the standard form as contained in the penal notice annexed to Toyota's 1 May 2018 notice of motion (the Third Orders). Service of the Third Orders was directed to be served on Mr Joukhador by email to the same email address as the earlier orders. 2. The covering letter with which the freezing orders were transmitted by email stated, among other things, that "[t]he freezing orders are very serious … We put you on notice that we will be seeking a continuation of the freezing orders [on 4 May 2018] as well as orders for contempt against you given the continued disobedience with the Court's orders". Fourth Orders 1. On 4 May 2018, there was again no appearance in court by Mr Joukhador or on his behalf. I made orders extending the freezing orders and I ordered Mr Joukhador personally to attend Court on 7 May 2018 (the Fourth Orders). On Toyota's application, I issued a warrant for the arrest of Mr Joukhador but directed that it be held in the Registry until 7 May 2018 in order to allow Mr Joukhador a final opportunity to attend Court voluntarily. Toyota's solicitor, Mr Farrar, has deposed (in his affidavit sworn 4 May 2018) that he transmitted the Fourth Orders made on 4 May 2018 with a letter dated 4 May 2018 by email to the same email address as the earlier emails at 11.37am on 4 May 2018. The covering letter included the following: We must again impress upon you again the seriousness of the matter. To make the position abundantly clear, if you do not attend Court on Monday then you will be taken into custody and then brought before the Court to answer the charges of contempt. This will involve a deprivation of your personal liberty and we therefore suggest that you take urgent and immediate legal advice. [underlining as per original] 1. Mr Joukhador did not attend Court on 7 May 2018. A warrant for the arrest of Mr Joukhador (that had been issued on 4 May 2018) was then released for execution. Annexed to Ms Francis' 3 July 2018 affidavit (CB 712) is a file note that she identifies as a file note dated 7 May 2018 at 3:28pm, recording a telephone conversation between Mr Joukhador and Mr Farrar on 7 May 2018 at approximately 11.56am, in which Mr Joukhador takes issue with a "hold" having been put on his NAB account and there is an exchange to the following effect: Farrar: I act for Toyota and I what I need to know is when you will return the seven vehicles that are in your possession as per the Court's orders. [my emphasis] Joukhador: I've already returned some of the vehicles. Farrar: … There is currently a warrant out for your arrest. Joukhador: Tell me why did you freeze my account? Farrar: The whole situation revolves around the non-delivery up of the motor vehicles, can you tell me when you will deliver those up because that is key to the whole thing. When will you deliver the vehicles. Joukhador: I tell you what I will deliver the vehicles up your f-ing mum's arse, how do you like that. I'm gonna come and see you. 1. Pausing here, in this conversation there is certainly a reference to court orders in the context of the query as to when the Vehicles would be returned "as per the Court's orders". However, there was no express acknowledgment by Mr Joukhador that he had received or was aware of the orders and the balance of the conversation (as set out in Mr Farrar's file note) strongly suggests that (as was evident in the course of Mr Joukhador's cross-examination on the present application) Mr Joukhador pays little attention to what is said to him and has a tendency to give unresponsive answers (in an argumentative or confrontational way). The last response recorded above, for example, does not lead me to conclude that Mr Joukhador actually had possession or control of the Vehicles at that time (just as the reported "come get them" response to the liquidators about which (Mr Joukhador gave inconsistent accounts does not do so). As for the statement that Mr Joukhador had already returned some of the Vehicles, this too is an unreliable statement since the recovery of the Vehicles had been effected with the assistance of Toyota's repossession agents; it nevertheless indicates that Mr Joukhador was aware at that stage that some of the Vehicles had been repossessed. Mr Joukhador's bankruptcy 1. On 10 May 2018, Mr Joukhador became bankrupt and Mr Scott (one of the first defendant's liquidators) was appointed as his trustee in bankruptcy. The relevance of this is that it indicates a likely inability on Mr Joukhador's part to make good the amounts owing to Toyota. Mr Joukhador's arrest on 4 July 2018 – Fifth Orders 1. In early July 2018, the warrant for Mr Joukhador's arrest was executed and he was brought before the Court on 3 July 2018 to answer the charge of contempt. On that occasion, at my request, the Registrar had arranged for pro bono representation for Mr Joukhador. Following submissions made by Mr Joukhador's barrister, I accepted certain undertakings from Mr Joukhador and ordered that he be released from custody. Those undertakings included that Mr Joukhador deliver up, by 4pm 5 July 2018, to the Registrar of this Court, his passport and to Pickles Auctions (a vehicle auction dealership) in Belmore, all car keys in respect of the seven vehicles in respect of which Toyota had still not recovered possession (those being Vehicles 1, 2, 4, 6, 7, 8, and 10). The order for Mr Joukhador's release from custody was also subject to him providing a written list of the present location of each of those vehicles to Toyota's solicitor. 2. Other orders were made on that occasion, including an order restraining Mr Joukhador from approaching within 1,000 metres of any recognised port of departure from Australia pending final hearing of the contempt charges brought against him in these proceedings; orders restraining Mr Joukhador from removing any of the Vehicles the subject of the orders from their present location as was to be disclosed by him pursuant to the undertaking he had given; procedural orders in relation to his address for service in the proceedings; and directions for the filing and service of any affidavit on which he wished to rely in the contempt proceedings within 21 days. I expressly noted that the orders previously made for the return of the Vehicles and for the provision of information by affidavit by Mr Joukhador remained on foot. 3. By this time onwards, there can be no doubt that Mr Joukhador was aware both of the seriousness of the situation and of the orders made (since on this occasion and thereafter he has had the benefit of legal representation in this matter). Further orders in relation to the service of affidavits – the Sixth, Seventh, Eighth and Ninth Orders 1. The matter came back before me for directions on 26 July 2018. On that occasion, Mr Joukhador was represented by his current solicitor, Mr Yakenian. I was advised by Toyota's solicitor, Mr Farrar, that the Vehicles had not been located at the location that had been specified by Mr Joukhador in the list provided on 4 July 2018 (it being said to be a brothel) and that not all of the car keys had been returned (the only keys that had been returned being keys to the three Vehicles already recovered). 2. On that occasion, I was informed by Mr Yakenian that, on his instructions, the keys in relation to the seven then unrecovered Vehicles had been delivered to Pickles Auctions: YAKENIAN: My instructions are that those keys were released to Pickles. If they are the wrong keys, we will undertake to look through the sets of keys we have, if they [sic] are any, and hand over whatever keys we have in our possession to Pickles Auctions. 1. In relation to the whereabouts of the motors vehicles, Mr Joukhador's solicitor informed me that: … the last known address my client has for the motor vehicles was the address given to my friend here [Mr Farrar]. […] There is a strip of land where a lot of these trucks and vans get parked outside. His previous employees parked the cars there. That is the last known address. I believe my client received an email which he opened up earlier this week which said that the motor vehicles were not there anymore. HER HONOUR: An email from whom? YAKENIAN: From my friend [Mr Farrar]. My client undertakes to investigate further. All I seek is 2-3 weeks adjournment to try to comply by the orders. 1. This exchange seems to relate to an email received by Toyota from a repossession agent to the effect that the Vehicles might have been removed to Melbourne (see Mr Rowles' affidavit sworn 25 July 2018 at [16](f); tab 5 p 29). That information was from an unknown informant to the repossession agent (Mr Maroun) and was to the effect that the Vehicles had been moved and it was believed they had been moved to an undisclosed address in Melbourne. Mr Yakenian informed me that his client was unaware of this; and in any event, I can place no weight on this evidence from an unknown source which cannot possibly be tested in any meaningful way. It amounts to speculation at best. 2. There was then the following exchange: HER HONOUR: The vehicles have been clearly identified. Is your client in possession of the keys to those vehicles? YAKENIAN: He does not know. He handed over whatever keys he had but unfortunately he had subcontractors who used to drive those vehicles. If those keys are not the correct keys he will have to contact his subcontractors and get whatever keys they have in their possession, the ex-subcontractors. There were 11 vans and trucks and he was not the driver of all 11. Although he is the owner of all 11, he was not the driver of all of those. He believed those keys were the correct keys. If they are not, he will have to go back to his previous subcontractors. 1. Mr Joukhador was in attendance in Court on that occasion and, after his solicitor had indicated that his client would make attempts to locate the missing car keys and I had indicated that this response was unsatisfactory, and an adjournment in which Mr Yakenian sought further instructions, there was the following: YAKENIAN: I have advised Mr Farrar of the instructions from my client. My client has some keys which we will hand to Mr Farrar this morning. I believe there are seven keys, van and truck keys, and we have advised Mr Farrar we will file and serve an affidavit in relation to the contempt and the non‑compliance by Monday morning 10am if possible. 1. Mr Joukhador then stood up in the back of the Court and took out of his pockets a number of car keys that were then produced to Toyota's solicitor. (So much for the reliance that could be placed on whatever instructions Mr Joukhador had earlier provided to his solicitor about the car keys: first, that they had already been delivered up; then the subject of the undertaking that was offered for Mr Joukhador to look through the sets of keys to identify them; and then that they might be the subject of enquiries of previous sub-contractors – when it appears they were in Mr Joukhador's pockets the entire time.) I noted on the transcript that Mr Joukhador had produced seven sets of keys and that Toyota's solicitor had noted that Toyota could not tell at that stage whether those keys were in fact the keys relating to the seven Vehicles in question. 2. I made further orders on that occasion in relation to the filing and service by 30 July 2018 of affidavit evidence by Mr Joukhador as to the whereabouts of each of the seven Vehicles the subject of the 4 July 2018 orders and as to any matters on which Mr Joukhador wished to rely in answer to the contempt proceeding; as well any other evidence on which Mr Joukhador sought to rely in relation to the contempt charge (the Sixth Orders). 3. On 2 August 2018, the matter again came back before me. I made orders directing Mr Joukhador to file and serve an affidavit by 6 August 2018 deposing to the circumstances in which he was last in possession of the seven Vehicles the subject of the orders made on 3 July 2018 and for the filing and service by Toyota of any evidence in response to the defendant's evidence by 20 August 2018 (the Seventh Orders). On that occasion I noted that Mr Joukhador's solicitor had advised that two of the Vehicles (Vehicles 8 and 10) had been located and would be delivered to Pickles Auctions either by close of business on 2 August 2018 or by no later than midday the following day. Mr Joukhador says that they were handed over on 2 August 2018 (referring to submissions made on 2 August 2018). 4. On 22 August 2018, the matter was listed before Registrar Walton who made orders for the filing and service by 24 August 2018 of a further affidavit deposing, among other things, to the specific circumstances in which Vehicles 1, 2, 3, 4 and 5 referred to in [6] and [7] of Mr Joukhador's affidavit sworn 7 August 2018 were given to a Mr Vishal Sharma (as Mr Joukhador says occurred); all communications with Mr Sharma since giving possession of the Vehicles to Mr Sharma regarding the Vehicles; all attempts made to recover possession of the Vehicles since the commencement of these proceedings; and any information to identify the current whereabouts of the Vehicles, or any person or entity that may be in possession of the Vehicles (the Eighth Orders). 5. An extension of time for the filing of that affidavit evidence was granted by Registrar Hedge, on 3 September 2018, to 5 September 2018 (the Ninth Orders). Affidavits filed and served by Mr Joukhador 1. From 29 July 2018, a series of affidavits has been filed and served by Mr Joukhador consequent upon the making of the various Court orders referred to above: namely, affidavits sworn 29 July 2018; 7 August 2018; 30 August 2018; and 7 September 2018. (A further affidavit sworn 27 November 2018 was subsequently filed and served, explaining Mr Joukhador's failure to attend when the contempt motion was listed for hearing on 23 November 2018 – see [55]; [56] below.) 2. At the hearing of the contempt motion, objection was taken by Toyota to various parts of the affidavit evidence sought to be relied upon by Mr Joukhador, and various parts of it were read by me as assertions, subject to weight. 3. In his various affidavits, Mr Joukhador has deposed: that he purchased the seven vehicles the subject of the orders (Vehicles 1-7) throughout 2016; that Vehicles 1, 2, 3, 4 and 5 were in the possession of his "subcontractor", Mr Vishal Sharma of Vishal Group Pty Ltd, and were used by Mr Sharma and his employees; and as to the last time that he saw those five vehicles (as to which there is some inconsistency in his evidence – whether it was on or about October 2017 or in June/July 2018) at an address in Strathfield South; and that, to the best of his knowledge, Mr Sharma still has possession of those five vehicles. 4. Mr Joukhador has deposed to having (unsuccessfully) attempted to contact Mr Sharma and to having visited the Strathfield South location where he last saw the Vehicles parked (which he says is a strip of land regularly used by truck drivers to park their respective "trucks, vans, and truck-and-dogs" – see [18] of his 29 July 2018 affidavit) and that they were not there. 5. I have referred above to the inconsistency in Mr Joukhador's affidavit evidence as to the last time he saw the Vehicles (whether that be October 2017 or, as he deposes in his 29 July 2018, that "[a]s at 3 July 2018, to my knowledge, those motor vehicles the subject of these orders were parked outside this address" (see [18] of that affidavit). Mr Joukhador was cross-examined on this evidence, to which I will refer later in these reasons (see [71] below). 6. Mr Joukhador has deposed that he did not receive any orders or documents by post (see [6] of his 29 July 2018 affidavit) and that (see [7] of that affidavit) he "may" have received the emails, but that: I do not open my emails. I receive many emails on the email address, but I do not use that email address regularly. 1. Mr Joukhador further deposed in his July 2018 affidavit that he had recently "gone through these correspondences" (by which I understand him to be referring to the emails) and asserted that he would not have understood "the implications of the email and its contents" (see at [8]). His recollection is that he received a letter from Farrar Lawyers some time in March 2018 advising him to contact David Farrar in relation to the matter (the exact contents of which letter he could not remember) and that he "did end up calling Farrar Lawyers". He deposed that he had a conversation with Ms Francis in similar wording to the conversation she sets out in her 26 March 2018 affidavit (at [10]), though he says the telephone number there set out by Ms Francis is incorrect (see at [9]). 2. Mr Joukhador deposed that he "had some idea" that there was a restriction on him disposing of any of his assets because "one of [his] discharging mortgagees, Resimac" who has security over a property in Chiswick advised him that they could not negotiate a disposal and settlement on that property "because of an order restricting [him] from dealing with that matter" but says that he did not realise that the orders were made in relation to these proceedings ([11]). (Only the freezing orders made by McDougall J could have had such an effect on Mr Joukhador's real property or assets other than the Vehicles and they were not assets acquired by him in any event.) 3. At [27] of his 29 July 2018 affidavit, Mr Joukhador appears implicitly to acknowledge that he read at least some of the emails sent to him (deposing that "I did not take the Plaintiffs correspondences and attempts to communicate with me seriously, and to that extent failed to read many of their emails" – my emphasis), but it is impossible from such a general statement to form a view as to what he may or may not have read or at what time he read any such emails. 4. In more than one affidavit (and in the witness box) Mr Joukhador apologised to Toyota and the Court "for the delays and non-compliance that led to the contempt charges" (see for example at [12]; [27] of his July affidavit) and professed his willingness to cooperate with Toyota (see [17]; [26] of that affidavit). Recovery of two further Vehicles 1. On 21 November 2018 Toyota recovered possession of two more of the Vehicles, leaving only three of the Vehicles still unrecovered (those three being Vehicles 1, 4 and 7) – which remained the position as at the time of the contempt hearing. Hearing of contempt motion 1. The contempt motion was listed for hearing before me on 23 November 2018. Mr Joukhador had been represented by his current solicitor when the matter was listed for hearing and can, therefore, be taken to have been made aware of the fixture. He did not attend on that occasion. I was informed by his solicitor, Mr Yakenian, that Mr Joukhador had only advised him the previous evening that Mr Joukhador would not be attending. The reason given for his non-attendance (as explained in his latest affidavit) was work commitments. The hearing was then re-scheduled for 29 November 2018. Mr Joukhador attended on that occasion, represented again by Mr Yakenian. He was cross-examined by Toyota's solicitor (after I had explained to him the position in relation to privilege against self-incrimination and the procedure under s 128 of the Evidence Act 1995 (NSW). I refer to that cross-examination in due course. Service of the First and Second Orders 1. As noted, the statement of charge alleges contempt by reason of breach of orders made in the first two sets of orders (the First and Second Orders). The evidence, taking into account Mr Joukhador's evidence that his email address is that to which the relevant emails were addressed (T19.2), establishes the following in terms of compliance with the orders made for the service of those respective orders. 2. The First Orders (and documents referred to therein) were served in accordance with O 7 thereof: at 12:46pm on 6 February 2018 by transmitting them to the email address and posting to the residential address specified in the orders (see affidavit of service of Ms Francis sworn 7 February 2018 at [2]; [3]). Ms Francis has deposed that there was no undeliverable notification received in relation to the said email address (see Ms Francis' affidavit sworn 8 February 2018 at [5]). (It is to be noted that in Mr Joukhador's affidavits he nominated that residential property as his address and gave that email address as his email address. His residential address and email address were confirmed in cross-examination as being the addresses to which the respective letters and emails were addressed – see T 18/19.) 3. The Second Orders were served in accordance with O 3 thereof at 12:59pm on 9 February 2018 by transmitting them to the said email address (affidavit of Ms Francis sworn 26 March 2018 at [4]) and Ms Francis has deposed that no undeliverable notification was received in relation thereto ([4]). 4. For completeness, I note that the Third Orders were served in accordance with the orders by email on 1 May 2018 (Ms Francis' affidavit sworn 3 May 2018). Ms Francis deposes that she transmitted to Mr Joukhador's email address documents including the notice of motion dated 26 April 2018 at 4.48pm that day and then at 4.56pm on that day she transmitted to Mr Joukhador's email address further documents including the freezing orders made on 1 May 2018. However, no breach of those Orders is the subject of the contempt charges. 5. The fact that the Orders were served as required in terms of those Orders does not, of course, establish that they in fact came to the attention of Mr Joukhador, i.e., that he had knowledge of the Orders – a problem I address in due course. Mr Joukhador's evidence 1. I have referred above to the affidavits of Mr Joukhador which were read on the present application. 2. As to when the Vehicles were last in Mr Joukhador's possession, and their whereabouts, Mr Joukhador gave inconsistent evidence. 3. In his affidavit sworn 7 August 2018, Mr Joukhador deposed (at [5]) that the Vehicles the subject of the orders in these proceedings "were always in the possession of my subcontractors"; and (at [6], a paragraph that I read simply as an assertion) that Vehicles 1, 2, 3, 4 and 5 were "always" in the possession of Mr Sharma. In this affidavit, Mr Joukhador deposed that the last time he saw those vehicles was on or about October 2017. In his affidavit sworn 30 August 2018, identical evidence is given (at [5]-[6]) and there is further evidence regarding the arrangements with Mr Sharma, some of which I again read as assertions only (see [9], [13]). It is asserted at [13] that "[t]o the best of my knowledge, Mr Sharma still has possession of [those vehicles]". 4. In his affidavit sworn 7 September 2018, Mr Joukhador gives further evidence regarding the arrangements with Mr Sharma, deposing (at [7]-[11]) that Vehicles 1, 2, 3, 4 and 5 were collected from the dealership by Mr Sharma (evidence that is inconsistent with the tax invoices issued by Toyota – see below at [105]) and (at [12]), again, that "[t]he vehicles were always in the possession of my subcontractor, Mr Sharma". 5. Such evidence is, of course, inconsistent with the advice recorded in the 27 February 2018 file note of Ms Nguyen (in the liquidators' office) to the effect that Mr Joukhador had been driving the vans around the previous week (see [22] above). But even leaving that aside (this being one of the documents to which objection was taken by Mr Joukhador), there was inconsistency on Mr Joukhador's own account of events as to when he last saw the relevant Vehicles. 6. In the witness box, Mr Joukhador at first said that the last time he saw the Vehicles in question was around June 2018: Q. So in relation to those vehicles what is your evidence as to the last time you saw each of those vehicles? We will break it down. I will deal just with the first vehicle, vehicle number one. When is the last time you saw that vehicle? A. June. Q. June when? This year? A. June 2018, yes. Q. June 2018, and what were the circumstances when you last saw it? A. What do you mean by circumstances? Q. Where was it you last saw it? A. Cosgrove Road, I think, Strathfield, yes. Q. What caused you to go to Cosgrove Road Strathfield? A. Yes. I can't remember what I was doing. Q. Vehicle Number 4 with registration number CH57VS, same question. When is the last time you saw that vehicle? A. I don't remember. Probably around May, June ‑ June, yes. Q. May, June 2018? A. I believe so. Q. And where was the vehicle located when you last saw it? A. Cosgrove Road 1. Confronted squarely with the inconsistency between this evidence and his July/August 2018 affidavit evidence (to which I have referred above), which put the last date on which Mr Joukhador had seen the Vehicles at October 2017, there were the following exchanges: Q. If you turn to page 896 of the court book, paragraph 8, you'll see the identical language appears, "the last time I saw vehicles 1, 2, 3, 4 and 5 was on or about October 2017 at 81‑89 Cosgrove Rd, Strathfield South"? A. Yeah, because I stopped doing business with Mr Sharma at that time. Q. So I suggest to you that paragraph 8 is false? A. On page 896? Q. Yes? A. No, I don't, unless we got the wording wrong, maybe we were trying to say that we stopped doing the business around that time, because that's where we used to park our vehicles. Q. You can read the words that you've used, you could have chosen any words you chose(as heard) in your affidavit, and the words you chose were "the last time I saw vehicles 1, 2, 3, 4 and 5 was on or about October 2017 at 81‑89 Cosgrove Rd, Strathfield South"? A. Awesome. That's awesome. Q. That's the word you chose, correct? A. Beautiful, yes. Q. So it doesn't require any overlay that you're trying to give it today, that's correct? A. So what, because I've said to you it was maybe June or something today? … Q. There's quite a big difference, between June 2018 and October 2017? A. Of course. I've gone delusional by now because I've been on tablets, man, so you're going to crucify me for that? Like, does it matter? Q. Turn to page 900 of the court book? A. What page? Q. 900? A. 900. Q. Paragraph 14? A. 14, yes. Q. You'll see the same words are used again? A. So you're going to ask me the same questions again? Q. Yes, and I assume it's the same answers to the same questions? A. All beautiful, yes, I do apologise, your Honour, if I've changed my mind, I've been on tablets the last few months, my head's gone a bit funny. Q. Just to be clear for the court today, when is it you say that you last saw vehicles 1, 4 and 7, what's your evidence, is it the evidence of the old affidavits or the evidence in court today? A. I don't know how to answer that, man, I really don't, mate. Q. They can't be both right, you can't last have seen them in June 2017 and last seen them in October 2017(as heard), so which one is it? A. I don't know, I've got to refresh my memory to know. I stopped working around October‑‑ [my emphasis] 1. As to the emails that Mr Joukhador acknowledged in his affidavit evidence he "may" have received (see above), Mr Joukhador's evidence was that he paid people to take care of his emails: A. Two ladies take care of the emails. Bernadette Joukhador is one of the ladies and Mumeet(?) [sic] Kaur, separate lady. … Q. How long has Bernadette Joukhador been in your employ? A. She has been with me since about 2013, mid 2013. Q. So when you say she looks after your emails, what does she do specifically? A. She accepts all the emails or she declines your ones, that is what she does. Q. She declines my emails? A. Yes. Q. On whose instructions? A. Your emails. Q. Would it be on your instructions, Mr Joukhador? A. How can I answer questions like that, what does she do? Does it matter what she does? … A. Sorry, your Honour. She takes care of the emails and accepts the email and prints them out for me, so I can get it on a hard copy and see what needs to be instructed, of it, but, yes, for the 900th time, she take [sic] care of my hotmail address. [my emphasis] Mr Joukhador's credibility 1. Mr Joukhador's affidavit evidence having been read on the contempt application, Toyota not surprisingly required him to be called for cross-examination. As noted above, I explained to Mr Joukhador at the outset of his examination the procedure available under s 128 of the Evidence Act if he objected to answering questions on the ground of privilege against self-incrimination. 2. Mr Joukhador was cross-examined, relevantly, as to: his residential address; the use of his email address; his knowledge of the various orders; the current whereabouts of the Vehicles; and his efforts to recover the Vehicles. 3. Generally speaking, Mr Joukhador's evidence was a mixture of: professed inability to recall things; professed tiredness (see for example at T 10.49) and difficulties due to his medication (see at T 38.2; T 38.18; T 39.16); argument, bluster and confrontation with the cross-examiner; unresponsive and sarcastic comments (see for example those highlighted in the exchanges extracted at [72] above); self-serving statements; and fulsome (using that adjective in its correct, though not commonly understood, meaning) apologies to the Court. 4. See, for example, the following passages from the cross-examination: Q. With the benefit of having read that file note, would you like to change any of the answers that you have given that I asked in relation to the telephone call with Ms Nguyen on 27 February 2018? A. Is that where she says company operated logistics business‑‑ Q. The even entire file note? A. "I have been driving the van for the last—". I don't know if I have said that or not. I don't recall. I wish I did say that to her, to be honest. "The Company was trading at the time of the call". Once again, it is Tara— Q. What is your answer to the question? A. Could you ask the question again, please if you don't mind. Q. Do you wish to revise any of your answers to the questions that I asked you regarding your conversation with Ms Nguyen on 27 February 2018? A. So I am more than happy to answer that question. This is all the stuff I spoke to Emily about? Q. Is that your answer to the question? A. I am asking this before I answer your question, I want to know are these all the stuff I spoke to Emily Nguyen about all this? Q. I have asked you a direct question. You don't seem to be answering that question? A. Well then, maybe you should point out to me where I spoke to Emily Nguyen before I answer your question because I don't remember speaking to Emily Nguyen about Tara. So are we on the right page? Q. Yes? A. Are you sure? 1. Mr Joukhador accepted that he has resided at the residential address to which the letters serving the Orders were addressed since approximately 2006 (see T 14.13-27); that the email address to which the emails were addressed was his email address that he had used regularly since at least February 2018 (see T 29.36; cf his affidavit evidence to which I have referred above), though saying he also had another work email address at some stage. 2. As to receipt of the letter dated 6 February 2018 (enclosing the First Orders) and letter dated 9 February 2018 (enclosing the Second Orders) there was the following exchange: Q. That's your address? A. Correct. Q. I'm suggesting to you that you received this letter by mail shortly after 6 February 2018? A. Once again, I don't recall receiving this letter but having said that if I knew I had to be at Court your Honour, Mr Farrar I would have attended. I honestly did not know I had Court. I've been attending Court cases since the age of 17. I do apologise but I didn't know anything about this and I have been taken into custody a few times. I didn't know I had to be in Court at this time. If I did I honestly would have come. Q. If you turn to page 494, you'll see a letter addressed to you at xxx Belmore NSW 2192? A. Yes. Q. That refers to enclosing a copy of the orders made on 9 February 2018 and I'm suggesting to you that you received that letter in the mail shortly after 9 February 2018? A. Maybe I did, maybe I didn't. Once again, I do apologise if I put anybody here in any kind of inconvenience your Honour so I don't know. Q. Can I suggest to you that the two sets of orders, the orders made 6 February and the 9 February 2018, were received by you in the mail shortly after the dates? A. Once again, I don't remember. [my emphasis] 1. As to the use by Mr Joukhador of the email address to which the Orders were transmitted, Mr Joukhador seemed to accept in the witness box that he had used the email address regularly since February 2018 (see T 29.36) and that he had corresponded directly using the email address (see T 30.16). Toyota points to the following exchange, after Mr Joukhador had given evidence that he had paid people (for "chickenfeed" I thought I heard him say, though this was not picked up in the transcript so I may have misheard him) to access or "decline" his emails – see the passage extracted earlier in this regard, in which Mr Joukhador ultimately accepted that he had himself sent certain email correspondence to which he was taken in the witness box: Q. If you turn to page 858 of the Court book, you have one of your affidavits. Did you send that email on 31 May 2018 at 9.55pm? A. Yes. Q. Did Bernadette or Ms Kaur help you send that email? A. What, did they hold my hand or something are you saying? Q. Did they help you at 9.55 in the evening to send it? A. Maybe they did. Q. Did they? Is that your honest answer to that question? A. Maybe they did. Q. Is that your honest answer? A. All right. You got me, mate. I sent one email, ok, maybe two. [my emphasis] 1. That last answer (as was the case with others), "you got me, mate", was delivered in what I considered to be a heavily sarcastic tone. It illustrates the difficulty I have in placing weight on answers given by Mr Joukhador with such evident disdain or lack of regard for the court process in which he was a participant. It seemed abundantly clear to me that at numerous times in the cross-examination Mr Joukhador's answers amounted to no more than throw-away lines, flippant comments or what I can only describe as "smart alec" responses. I can put little weight on such evidence one way or the other. 2. Toyota's submission that Mr Joukhador was being unco-operative and deliberately obstructive in the course of his cross-examination (see Toyota's supplementary submissions at [21]; [27]; [36]) is amply borne out by a review of the whole of the transcript. Mr Joukhador's attitude in the witness box did not give me any confidence that he was taking seriously the questions (or his obligations as a witness to answer those questions truthfully). To the contrary, his behaviour exhibited both truculence and bluster. 3. I find Mr Joukhador to be an unreliable witness and one whose evidence I cannot accept without corroboration. On more than one occasion he appeared to take refuge in an inability to recall matters when faced with inconsistencies or difficulties in his affidavit evidence (such as when the issue as to when he last saw the Vehicles in question was raised). His attitude in the witness box towards the cross-examiner was at times aggressive and he seemed to take amusement in "baiting" the cross-examiner (as with his answers in relation to his discussions with Ms Nguyen). If this is any indication of his usual behaviour, then I have no doubt that, as the file notes and transcripts kept by Toyota and Toyota's lawyer record, Mr Joukhador has been abusive and threatening both to Toyota's staff and its legal representatives. What did, however, ring true to me was the statement (and perhaps unintentional admission) by Mr Joukhador that what Ms Kaur did was to "decline" all emails from Mr Farrar; and, although Mr Joukhador resisted answering whether that was done on his instructions, logically that could only have been the case – there seems no plausible reason for someone paid to access an email account to "decline" emails from a particular source unless instructed to do so. 4. I have little doubt that once the first defendant was in default of its obligations under the motor vehicle contracts Mr Joukhador deliberately sought to distance himself (being not only a director of the first defendant but a guarantor of its obligations under those contracts) from any communications from Toyota – getting others to open his emails, for example (assuming for present purposes that that is what he did). I suspect that he is crafty enough (and has sufficient experience with court matters – as he made clear in the witness box) to have sought to avoid actual knowledge of anything that might be inconvenient to him (such as the receipt of letters of demand) so as to enable him later to deny any such knowledge. His evidence as to the emails being under the control of his employees is not plausible to the extent that it is unlikely (and he accepted that they did not always do so) that those employees would have been sending emails on his behalf late at night. However, the reference to his employee "declining" emails from Mr Farrar is consistent with the attitude Mr Joukhador displayed in Court. It seems to me not implausible that Mr Joukhador adopted some kind of vetting system in that regard (which I would infer would be so as to put himself in a position where he could later deny receipt or knowledge of documents he did not want to see). 5. That said, there is only Mr Joukhador's word for the proposition that he paid people to access his email account and that he did not do so himself; there was no evidence from either of the persons that he said did so. As I have already made clear, I cannot rely on Mr Joukhador's evidence in that regard. 6. I have no doubt that Mr Joukhador had at least constructive knowledge of the Orders (whether derived from whatever his "employees" said to him about his emails or from the references to the making of court orders in his conversations with Mr Farrar and/or staff in the liquidators' office). However, I am not persuaded beyond reasonable doubt that Mr Joukhador had actual knowledge of the terms of the Orders that he is here said to have breached (in contempt of court); as opposed to having, say, a general understanding gleaned from conversations with others that some orders had or may have been made in relation to the Vehicles (as the basis for the assertions made to him that he had an obligation to return the Vehicles) but turning a conveniently blind eye to what the terms of those orders actually were or precisely what it was that he was required by the orders to do. Toyota's submissions as to breach by Mr Joukhador of Court orders 1. As adverted to above, Toyota maintains that the attempt at transfer of registration of one of the Vehicles to a third party was a breach of O 5 of the First Orders (see Mr Rowles' affidavit sworn 26 April 2018 (at [5](a)); and Toyota contends that Mr Joukhador has not complied with the Second Orders (see Mr Rowles' affidavit sworn 25 July 2018 (at [5](c)) in that he has not delivered up all the Vehicles to Toyota and did not provide written notice of the whereabouts of the Vehicles as required. (I note that Toyota has now regained possession of all but three of the 10 Vehicles but that it says it has done so largely through repossession efforts by its agents.) 2. Although not the subject of the statement of charge, Toyota maintains that Mr Joukhador has committed numerous other breaches of the respective orders. 3. Toyota complains that Mr Joukhador failed to comply with O 2 of the Fifth Orders in that he: provided an address which he deposed was the location of the Vehicles at South Strathfield (from which it was ascertained by Toyota's agent that a massage parlour/brothel was operated) at which none of the Vehicles was sighted; and provided seven sets of keys to Pickles Auctions on 4 July 2018, none of which related to the seven vehicles the subject of the Fifth Orders. 4. Toyota also complains that Mr Joukhador has not complied with O 3 of the Fifth Orders in that he has failed to disclose the whereabouts of the Vehicles. In particular, it is noted that in Mr Joukhador's first affidavit sworn 29 July 2018, Mr Joukhador did not set out the specific whereabouts of any of the Vehicles. 5. As to O 7 of the Fifth Orders, it is noted that Mr Joukhador has failed to return all the Vehicles set out in the Orders. Toyota also complains that there has been a contravention of O 8 of the Fifth Orders in that Toyota's agent was advised by an informant that Mr Joukhador had moved the Vehicles to an undisclosed address in Melbourne (Rowles affidavit sworn 25 July 2018 at [6]). 6. Finally, it is submitted that Mr Joukhador has not fully complied with O 1 of the Eighth Orders, complaint being made that there is an obvious lack of specificity regarding the circumstances in which the Vehicles were provided to Mr Joukhador's subcontractors, as deposed to in Mr Joukhador's second affidavit sworn 30 August 2018, and that there is also a lack of detail regarding attempts to recover the Vehicles and other matters specified in the Orders. Toyota's submissions on the contempt charges 1. As to the issue of receipt of the Orders, Toyota relies on the following matters for the conclusion that Mr Joukhador has been aware of the existence and terms of the First and Second Orders since February 2018. 2. First, that Mr Joukhador did not deny having received the First and Second Orders that were sent to his email address (see T 29.34-43). Second, that Mr Joukhador has frequently used the email address (said to have been used on no less than 12 occasions since the making of the First Orders) (see T 30.1-16; CB 834 – Mr Rowles' fourth affidavit sworn 28 September 2018 at [15]) (and hence it is submitted that Mr Joukhador's evidence that his employees have control over the email address should be rejected). Third, that Mr Joukhador has confirmed that the residential address to which the letters were addressed is the address where he receives mail (see T 14.27) (and hence it is submitted that in the ordinary course he should have received the letters). Fourth, Toyota points to the evidence to the effect that Mr Joukhador was made aware of the First and Second Orders from various communications with Toyota, the liquidators/trustee's office and Farrar Lawyers' office (see T 41.48). 3. Toyota thus submits that Mr Joukhador was aware of the existence and the terms of the Orders and of his obligations under them. 4. Toyota says that Mr Joukhador has contacted Toyota's representatives and its legal representatives on numerous times during the course of the proceedings and that the contentions of "non-receipt" of the Orders should be rejected as false and inconsistent with other evidence. 5. As to breach of the said Orders, Toyota points to the inconsistencies in the evidence given by Mr Joukhador as to the current whereabouts of the Vehicles (to which I have referred above) and contends that Mr Joukhador has deliberately taken action in defiance of those Orders. 6. Reference is made by Toyota in that regard to the evidence as to enquiries made by Mr Joukhador with various financiers for the refinance of the Vehicles that he claimed were not in his possession (referring to Mr Joukhador's evidence that he had found a broker to purchase the Vehicles – see T 46.35; T 47.24; and his affidavit evidence that he had approached finance brokers on or about 25 July 2018 to submit an offer to refinance the five then "unrecoverable" Vehicles – see CB 883-888, Mr Joukhador's first affidavit sworn 29 July 2018 at [16]; [28] and Ms Francis' fifth affidavit sworn 3 July 2018 at p 719). Toyota notes that the refinancing enquiries were made after 3 July 2018 – at a time when Mr Joukhador was admittedly aware of his obligation to return all of the Vehicles (see T 46.27). Toyota thus argues that it is likely that Mr Joukhador still has actual or constructive possession of the remaining Vehicles (see [36](b) of Toyota's supplementary written submissions). 7. Insofar as Mr Joukhador has alleged in his first affidavit that he would not have understood the implications of the communications received from Toyota and its legal representative, it is noted that in various letters sent by Mr Farrar, the seriousness of the matter was communicated and emphasised multiple times; and that this was also conveyed verbally to Mr Joukhador in various telephone conversations with Toyota and Mr Farrar. It is submitted that Toyota and Mr Farrar also engaged in communications with Mr Joukhador's accountants and advisors; and that Mr Joukhador had conversations with the office of his trustee in bankruptcy in which it was communicated to Mr Joukhador that Toyota's claim arose from his failure to return the Vehicles to Toyota. 8. As to Mr Joukhador's professed lack of understanding (had he been aware of them at the relevant time, which he says he was not) of the Orders, I interpose to note that in the absence of ambiguity in the terms of the order (such that it cannot be said what was required for compliance therewith – see Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [56]-[57]) it is immaterial whether Mr Joukhador understood the orders or not (other, perhaps, than its relevance for any sentencing for contempt). Rather, what is here in issue is whether or not I am satisfied beyond reasonable doubt that Mr Joukhador knew of the orders at the relevant time(s) and breached them in a way that was not casual, accidental or unintentional (whether or not he intended to breach them). 9. Toyota submits that the contempt charges have been proved beyond reasonable doubt and argues, (by reference to Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21 at [12] (Windeyer J) and the statement of sentencing principles set out by Dunford J in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185; adopted by McDougall J in Commissioner for the Police Integrity Commission v Walker [2006] NSWSC 964 at [65]), that in the present case the appropriate punitive sanction is a term of imprisonment until such time as Mr Joukhador restores possession of the remaining Vehicles to it (see submissions at [37]). 10. Broadly, in that regard, Toyota points out that: under the motor vehicle contracts there was a contractual obligation not to part with possession of the Vehicles; Mr Joukhador's sworn evidence is that he immediately gave possession of the Vehicles to third parties; the Vehicles are not currently registered in the name of the first defendant; Mr Joukhador failed to return any of the Vehicles (those that were recovered having been restored to Toyota's possession through the efforts or repossession agents); and that Mr Joukhador has given "vague generalised evidence" about his attempts to secure return of the Vehicles. 11. Toyota submits that the evidence as to discussions with finance brokers regarding refinance of those five Vehicles suggests that Mr Joukhador has been dishonest in his evidence that the Vehicles are out of his possession; that his refusal to return the remaining Vehicles is deliberate and wilful and ought to be considered very serious; and that Mr Joukhador has not provided any reliable evidence as to the alleged delivery of possession of the Vehicles to third parties or of proper attempts made by him to recover possession of the Vehicles, with the consequence that Toyota stands at risk of never receiving possession of the remaining Vehicles. 12. It is further submitted that, given that the first defendant is in liquidation and Mr Joukhador is bankrupt, Toyota has virtually no prospect of securing any monetary compensation for its substantial loss; and that the making of further costs orders against Mr Joukhador will equally be of no real value to Toyota. Hence, it is submitted that if Toyota cannot compel Mr Joukhador to return the (now three) remaining Vehicles it will be left effectively without any legal remedy. 13. Toyota acknowledges that Mr Joukhador has expressed remorse in his affidavits. However, it is submitted that his conduct has not been adequately explained; that he has been "abusive, difficult [and] threatening" in his dealings with Toyota; and that he has repeatedly been shown to have "no real desire" to comply with the orders of the Court. It is submitted that Mr Joukhador's evidence is at best misleading and at worst "completely false" (reference there being made to assertions by Mr Joukhador that the Vehicles were collected from the Toyota dealership by his sub-contractor, Mr Sharma, or his employees; whereas contracts and tax invoices issued by Toyota indicate that the Vehicles were delivered to the Property – not collected by Mr Sharma). It is said that Mr Joukhador's actions in terms of restoring possession of the remaining Vehicles have not been adequately explained and that this, together with his "continuing lies and deception exhibited during cross-examination", "highlights the insincerity" of Mr Joukhador's expressed remorse in the form of his apology (see [37] of Toyota's written supplementary submissions). 14. In circumstances where Mr Joukhador has not purged his contempt, it is submitted that the case is one of deliberate, defiant and contumelious conduct that was, and remains, intended to obstruct the course of justice. Submissions by Mr Joukhador 1. In written submissions filed for Mr Joukhador before the hearing (and repeated in final submissions filed after the close of the hearing), it is made clear that Mr Joukhador does not contest the "Background details" set out in Toyota's Outline of Submissions (see [I] of the first written submissions) and "does not contest that the actions leading to the Contempt of the Court's orders occurred" ([III](A) of the first written submissions). As I apprehend it, these particular submissions are not intended as an admission by Mr Joukhador that he has committed a contempt of Court. Rather, Mr Joukhador's position (maintained, on the whole, in the witness box) is that he does not recall receiving the Court orders by mail (although he concedes he may have done), and he does not recall receiving them by email (and, although he concedes he may have received the emails, his evidence is that he did not open them himself). 2. In the successive sets of written submissions for Mr Joukhador it is said that he "admits to receiving certain correspondence" from Toyota and its representatives (referring to [7] and [9] of his first affidavit sworn 29 July 2018), but he submits that he did not understand "the implications of those correspondences" (referring to [8] of his first affidavit) (see [III](B)] of first written submissions, repeated in final submissions). 3. It is said that Mr Joukhador only became aware of the seriousness of the matter and his breaches of the Court's Orders once he was arrested on 3 July 2018 (see [11] of his first affidavit) and that, once he was made aware of the seriousness of the charges, Mr Joukhador has attempted to comply with the Court's orders to the extent of his abilities. It is submitted that Mr Joukhador has complied with the Court Orders in that he: handed over his passport to the Supreme Court Registry; has not gone within a 1,000 metres from any recognised port of departure from Australia; has handed over all keys in his possession for all the Vehicles that "constituted parts of the orders"; and has "handed over" five Vehicles that constituted parts of the orders, including two Vehicles on 2 August 2018. 4. In his first written submissions, Mr Joukhador admitted that five Vehicles had still not been handed over to Toyota (though that number is now reduced to three) but submitted that these Vehicles are (or were) in the possession of Mr Vishal Sharma of Vishal Group Pty Ltd (third affidavit sworn 30 August 2018 at [6]-[13]). He says he has attempted to locate the remaining Vehicles, but has not been able to do so (see his fourth affidavit sworn 7 September 2018 at [16]-[24]). He repeats those matters in his final submissions, admitting that five Vehicles (now three vehicles; namely, Vehicles 1, 4 and 5) have not been handed over to Toyota and submitting that those Vehicles are in the possession of Mr Vishal Sharma. 5. Mr Joukhador apologised more than once in his submissions for his actions; has said they were a mistake and that there is no excuse for them; and submits that a custodial sentence until all Vehicles are returned to Toyota would not be appropriate in this instance, as he does not have possession of those Vehicles. 6. In submissions filed after the close of the hearing, it was put for Mr Joukhador that he was consistent in his replies in cross-examination to the effect that he did not remember whether he had received the Court orders by mail (though conceding that he might have received them he maintained that he did not remember receiving them); which it is said is not inconsistent with his affidavit evidence. It is submitted that on Mr Joukhador's evidence he employed others to manage his email address and that although he may have received the emails from Toyota he did not open them himself. As to the inconsistency between when he last saw the three still missing Vehicles, it is submitted that his evidence in the witness box (that he may have seen them in May or June 2018) was in error (noting Mr Joukhador's protestation that he was "delusional") and that it should be accepted that he last saw them in October 2017. It is submitted again that a custodial sentence until the Vehicles are returned would be inappropriate in circumstances where Mr Joukhador's evidence is that he does not have possession of the Vehicles. Relevant principles 1. The traditional distinction between civil and criminal contempt was described in general terms in Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 (Witham v Holloway) at 530 as follows: … a civil contempt involves disobedience to a court order or breach of an undertaking in civil proceedings, whereas a criminal contempt is committed either where there is a contempt in the face of the court or there is an interference with the course of justice. 1. Though it has been subject to criticism, the distinction between civil and criminal contempt has not been abolished (see Australian Securities and Investments Commission (ASIC) v Sigalla (No 4) (2011) 80 NSWLR 113; [2011] NSWSC 62 (Sigalla (No 4)) at [76]; and see the particular appellate consequences that flow in New South Wales from such a classification, noted in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 at [21] (Kirby J); [132] (Hayne, Heydon and Crennan JJ)). 2. The present charges of contempt relate to alleged breaches of court orders, and hence fall within the traditional classification of civil contempt. The burden of proof rests upon the party alleging contempt of court (here, Toyota) to establish the charges and the standard of proof is the criminal standard (see Witham v Holloway at 534 (Brennan, Deane, Toohey, Gaudron JJ); 535 (McHugh J); Commonwealth Bank of Australia v Salvato (No 4) [2013] NSWSC 321 (Salvato (No 4)) at [126] (Garling J); though I note the observations of White J (as his Honour then was) in Sigalla (No 4) at [13] and [93] as to the impact of the introduction of the Evidence Act 1995 (NSW) on the onus of proof in civil proceedings). 3. Toyota referred in its submissions to the summary of the relevant principles applicable to a charge of contempt for breach of a court order given by Garling J in Salvato (No 4) at [126]-[130] (and there was no dispute by Mr Joukhador as to this being a correct summary of principles). 4. In Salvato (No 4), his Honour noted (at [127]) that, where the contempt of court consists of a failure to comply with an order of the court, it must be demonstrated that the contempt was wilful and not merely casual, accidental or unintentional (citing Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46); but that it was not necessary to prove that the contemnor intended to breach an order of the Court (citing Anderson v Hassett [2007] NSWSC 1310; Mudginberri at 111; Matthews v Australian Securities Investment Commission [2009] NSWCA 155 at [16] (Tobias JA)) nor that the contemnor was aware that his or her conduct constituted a breach (citing Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143 (Lindgren J); Metcash Trading Ltd v Bunn (No 5) (2009) FCA 16 at [9] (Finn J)). 5. More recently, in Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 2) [2018] NSWSC 1776, Parker J referred (at [78]-[79]) to the decision of the Court of Appeal in Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 (a case involving an alleged failure to comply with a subpoena) where Campbell JA (citing Mudginberri) said (at [64]) that: … proof that a contempt has been committed by breaching a court order involves proving enough to conclude that the action or inaction said to constitute the breach was deliberate, and not casual, accidental or unintentional. Determination Ruling as to the document at CB 545 1. Before turning to the evidence relied upon to establish that Mr Joukador knew of the respective orders at the relevant times, I should deal with the evidentiary ruling as to the admissibility of the document at CB 545 (evidence that I only provisionally admitted at the hearing of the application, indicating that if I ruled it inadmissible I would not take any cross‑examination in relation to it into account). 2. That document is an email sent on 8 March 2018 from the Customer Administration Unit of the RMS to Ms Nyugen (in the liquidators' office), and copied to Mr Treffiletti (in that office), in which RMS notified Ms Nyugen that it was maintaining a dealing restriction (applied on 2 February 2018) on Vehicle 1 (registered to the first defendant) and that a representative from the company had attended and attempted to transfer the registration. The company "representative" was not there identified. The query raised with the liquidators' office was as to whether the dealing restriction "[could] now be removed". 3. Objection was made to Mr Joukhador being cross-examined on this document on the grounds of hearsay on the basis that it was a third party email from one party to another in relation to this matter ( see T 43.40). 4. For Toyota, it was submitted that this document fell within the business records exception to the hearsay rule, being a document held on the files of the liquidator as part of the continuing administration of the first defendant, which was not brought into existence in connection with or directed to these proceedings but (it may be inferred) was kept as part of the ongoing task which the liquidator is required to perform (of identifying, gathering in, protecting and preserving assets). Thus it was submitted that it was a business record of the liquidator (though not created by the liquidator). 5. Section 69 of the Evidence Act provides an exception to the hearsay rule for a document that either is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business, or at any time formed part of such a record. The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact, or on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact (s 69(2)). 6. Section 69(5) provides that: For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person's knowledge of the fact was or may reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact). 1. In Roach v Page (No 15) [2003] NSWSC 939, Sperling J said (at [5]-[6]) that: The records of a business are the documents (or other means of holding information) by which activities of the business are recorded. Business activities so recorded will typically include business operations so recorded, internal communications, and communications between the business and third parties. On the other hand, where it is a function of a business to publish books, newspapers, magazines, journals (including specialised professional, trade or industry journals), such publications are not records of the business. They are the product of the business, not a record of its business activities. Similarly, publications kept by a business such as journals or manuals (say, for reference purposes) are not records of the business. 1. In Australian Securities and Investment Commission (ASIC) v Rich [2005] NSWSC 417 at [186], Austin J observed that file copies of business letters sent by a company to a third party are records of the company's business, and went on to say: … Hence, in the R W Miller case Giles J observed that the concept of a record of a business extends to such things as copies of letters written as part of the conduct of the business, and he expressed the opinion that a loss assessor's file copy of a report prepared for a client would be a business record of the loss assessor, though the original report would not be a business record of the client. 1. In determining whether the exception in s 69(2) applies, the court can examine the document and draw inferences from it and any other matter (Evidence Act, s 183). It is necessary to look to the particular representations which are said to be outside the operation of the hearsay rule (see Capital Securities XV Pty Ltd v Calleja [2018] NSWCA 26 at [109]). 2. In the case of the email at CB 545, the representation sought to be relied upon, as I understand it, is that a representative of the first defendant (by inference, Mr Joukhador) had attended the RMS to transfer the registration in respect of Vehicle 1, which was then registered in the name of the first defendant. Assuming, for present purposes, that this document can be said to be a business record held by the liquidators (in that, although not prepared by the liquidators), it is a communication to the liquidators relating to assets of the company in liquidation and is retained on the liquidators' file in the ordinary course of the performance of their duties as liquidators). The difficulty I have is with the generality of what is there recorded. 3. I would accept that a representation by someone (with suitable qualifications and performing functions which involved access to the relevant records) in the Customer Administration Unit at RMS as to the current entity in which name the Vehicle was registered could amount to a representation made by someone who it could be assumed had personal knowledge of that fact (I would infer by reference to the RMS records). There is, however, no evidence of the role or functions of the RMS employee who sent the email in question. (Moreover, this is inconsistent with the evidence as to the earlier RMS search which was said to have disclosed that none of the Vehicles were currently registered in the company's name.) 4. More significantly (this being the very conduct the subject of the first count of contempt), as to the representation in the email that someone (a "representative") from the company had attended and attempted to transfer the registration of the Vehicle in question, it is not clear from the face of the document whether this was within the personal knowledge of the person who sent the email from RMS or was a query raised by someone else at the RMS; nor is it clear on what the assertion of a relationship between the "representative" and the company was based. While, as a matter of logic, it seems likely that anyone attending the RMS as a "representative" of the company would have been Mr Joukhador (its sole director), it cannot be concluded beyond reasonable doubt that this was so. It is not beyond the realms of possibility that he sent one of his "employees" to the RMS. I simply do not have sufficient understanding of the operations of the company to be able to draw the inference that the so-called "representative" was Mr Joukhador. The circumstances in which the registration was sought to be transferred and to whom it was sought to be transferred are unclear. 5. Mr Joukhador was cross-examined to this and the position became no clearer: Q. Could I suggest to you, Mr Joukhador, that you were attempting to deal with vehicle 1 the subject of the orders on 8, sorry, on or about 8 March 2018? A. Are we on page 545 still? Yes. "I never intended... I went to see", regarding this I don't recall any of this but what I do recall is I went to Service NSW in Wynyard regarding my personal vehicle, your Honour, and they said to me the liquidator has put a block on your name, and that's when I spoke to Emily Nguyen at the time, but then they started saying to me some, maybe, I think a judge, I think, put it on me, your Honour, I don't know, so the liquidators tell me one thing and then like I just sort of stuck in it, but I spoke to her, but once again I went to Service NSW at Wynyard, I had a court case here and it was after that court case I went there. I remember that phone call with her. She was very bad to deal with, your Honour, very bad. 1. The most that can be gleaned from Mr Joukhador's evidence is that he attended RMS with a query about his "personal vehicle" (whatever that might be). 2. I have concluded that the document at CB 545 should not be admitted in evidence but that even were it to be admitted as a business record (subject to weight and relevance) I would not have placed weight on it. Apart from the fact that it is inconsistent with the evidence of the liquidators' earlier search disclosing that none of the Vehicles were registered in the company name, it would not persuade me beyond reasonable doubt that Mr Joukhador had attempted to transfer the registration of Vehicle 1 out of the company's name and it certainly would not lead me to conclude that Vehicle 1 was, as at March 2018, physically in the possession (or otherwise in the control) of Mr Joukhador. 3. As to that last point, it may well be that when Mr Joukhador was later seeking to refinance one or more of the Vehicles through a finance broker (as the communications to that effect suggest), perhaps in order to satisfy Toyota's demands for payment of the moneys owing under the loan contracts and to pay out those contracts), the registration could have been transferred without Mr Joukhador physically being in possession of the Vehicle at the time (and without him knowing its precise whereabouts). Whether a finance company would have refinanced without physical evidence of the whereabouts of the Vehicle securing the provision of finance is a different question but (as history has shown) it is not unheard of for financiers to lend moneys on the security of non-existent assets (see, for example, the litigation relating to the fleet of buses operated by a Port Macquarie based company some years ago, including National Australia Bank v King [2003] NSWSC 525). 4. While dealing with objections to the documents on which Toyota relied, I note that those objections included the file notes at CB 709 and 711. 5. Each of the file notes at CB 709 and 711 is, on its face, clearly a business record of the liquidators (being on PPB Advisory letterhead and appearing from its content to have been created by a person for the purposes of the business of PPB Advisory). Section 69(2) therefore applies to the representations therein, insofar as the person who made the file note had or might reasonably be supposed to have had personal knowledge of the asserted fact, or made the representation on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of it. 6. As to the file note at CB 709, it records a statement made by Mr Joukhador (i.e., information supplied by Mr Joukhador to the author of the file note) as to the location of the Vehicles. Such a representation is admissible on the basis of s 69(2)(a), at least to the extent that Mr Joukhador may reasonably be supposed to have had knowledge of those facts. (His evidence, of course, is that he does not have knowledge of the location of the Vehicles other than to say that they are in the possession of the mysterious Mr Sharma.) 7. As to the file note at CB 711, this does not contain a representation as to a fact of which Mr Joukhador must be taken to have had personal knowledge (s 69(2)(b)). (The statement that the author of the file note could "come get them" is not a representation as to a fact.) However, the file note is admissible under s 69(2)(a) as to the fact that the conversation occurred, a fact of which the author of the note had personal knowledge, and made a representation to the effect of that which is there recorded. 8. At the hearing of the contempt application, I admitted the documents at CB 709 (T 26.34) and CB 711 (T 40.28) as business records subject to weight. 9. In final submissions, Mr Joukhador maintained a general objection to reliance being placed on evidence of communications between himself and third parties on the basis that those third parties had not been made available for cross-examination and on the ground that the communications were hearsay. The particular communications the subject of the objection there raised were not identified but I have assumed they are the ones to which objection was taken in the course of the hearing on which I ruled as noted above. To the extent that the (belated) general objection extended to the file note at CB 712 – see [32] above, I would deal with this document in the same way as the documents at CB 709 and 711. 10. As discussed below, I have difficulty placing much weight on the communications in which reference was made to court orders, given the generality with which such references were made. Knowledge of the respective Court Orders 1. Turning to communications that might be capable of raising an inference that Mr Joukhador knew of the Court Orders made on 6 and 9 February 2018, one is the file note dated 27 February 2018 (Annexure B to Ms Francis' affidavit sworn 3 July 2018) (CB 711) (admitted, as I have noted above as a business record, subject to weight: T 26.34; 40.28) from the records of PPB Advisory. Ms Francis deposes that she received the file note from an employee of PPB Advisory (at [5]). In that file note, as previously set out, there is a statement that: I raised the recent court order granted to Toyota Finance against the Company and the director requiring him to deliver up 10 motor vehicles to Toyota Finance. 1. In my opinion, little weight can be placed upon that statement given the generality of the reference to the "recent court order" and the lack of specificity of what was said. At most, it records an assertion that some reference to a court order requiring delivery up of 10 vehicles was made to Mr Joukhador. It does not identify the Vehicles in question (and whether it might be said that it should be inferred that they were the ones the subject of the present proceedings would depend on whether, apart from the 11th Vehicle, these were the only ones that had been financed by Toyota) or the time or manner required for the delivery up of the Vehicles. Mr Joukhador's recorded response ("come get them") seems consistent with his manner in the witness box, as set out above, and I would not treat it as an admission as to his knowledge of such an order. 2. Next, in an affidavit sworn 26 March 2018 at [10], Ms Francis deposes that, at approximately 2.05pm on 14 March 2018, she received a phone call from a person she believed to be Mr Joukhador in which he said "I have tried calling your offices three or four times and I have not been able to speak with him. I am calling about some letters that Farrar has sent to me". (In his affidavit sworn 29 July 2018 at [9], Mr Joukhador responds to this.) This could be a reference to a number of pieces of communication which had, by that time, been sent from Mr Farrar to Mr Joukhador (see the letters dated 5 February 2018 (CB 481), 6 February 2018 (CB 473), 9 February 2018 (CB 494); 12 March 2018 (CB 516)). However the difficulty with this is that the mere fact that Mr Joukhador had received the letters does not mean that he had read them. 3. Third, there is a file note dated 7 May 2018 (Annexure C to the affidavit of Ms Francis sworn 3 July 2018) (CB 712) (as noted, no hearsay objection was taken to this other than the generalised objection in submissions after the hearing, which I have dealt with already) in which the author (apparently Mr Farrar) records a conversation with Mr Joukhador in which it is said that Mr Farrar said "…what I need to know is when you will return the seven vehicles that are in your possession as per the Court's orders"; and Mr Farrar later said "There is currently a warrant out for your arrest". That would clearly support a conclusion that Mr Joukhador was told that orders of some kind had been made, and that they related to possession of the cars, but again there is insufficient specificity as to the terms of the orders on this account of the conversation to persuade me beyond reasonable doubt that Mr Joukhador had actual knowledge of the terms of the Orders. 4. On 8 May 2018, there is an email (Annexure D to Ms Francis' 3 July 2018 affidavit) (CB 713) (no objection was taken to this document under the hearsay rule at the time of the hearing but it may be the subject of the belated generalised objection and will be treated in the same fashion as the document at CB 712) from Mr Rowles stating: "I attach the discussed court orders". However, no response or acknowledgement from Mr Joukhador to that email is in evidence and whatever Mr Rowles discussed in relation to the court orders is not able to be discerned from the email. 5. Next, there is the letter dated 31 May 2018 from Accolade Advisory addressed to Mr Farrar (Annexure F to Ms Francis' 3 July 2018 affidavit) (CB 715) (to which no hearsay objection was taken), stating that Accolade Advisory acted for Mr Joukhador and that: Our client is in a position where he now needs to complete his statement of affairs. We would be pleased if you would confirm the amount owed to your client. A mareva order obtained by your client suggests something in the order of $900,000… 1. That certainly indicates knowledge on the part of Mr Joukhador's then advisors of the making of the Third Orders (which included a freezing order in respect of Mr Joukhador's assets up to the stated amount of $900,000). It might be thought that such information could only have come from Mr Joukhador (or someone with knowledge of the terms of the Third Orders). However, it is not beyond the realms of possibility that Accolade Advisory obtained such information from the liquidators' office. Whether or not that was the case is mere speculation, but it highlights the difficulty for me to conclude beyond reasonable doubt that Mr Joukhador himself was the source of that information. Moreover, there is no contempt charge as to breach of the Third Orders. 2. The evidence that Mr Joukhador actually knew the terms of the First and Second Orders is slim. Though there is more evidence to support that conclusion in relation to the Third Orders, there is still sufficient doubt in my mind as to this (and, as noted above, the contempt charges do not relate to the Third Orders). Evidence as to the location or possession of the 'unrecovered' Vehicles 1. As to the evidence regarding the location or possession of the Vehicles, I have referred above to the inconsistency in Mr Joukhador's evidence in that regard. I have also referred above to the file note written by Ms Nguyen (in the liquidators' office (Exhibit D, p 1; CB 709 – admitted as a business record, subject to weight) which records Mr Joukhador's confirmation that three Vehicles were located at Belmore NSW (Vehicles 2, 4 and 6). This is of course only Ms Nguyen's account of the conversation and I can place little weight on that evidence, given its content. However, the evidence directly contradicts Mr Joukhador's statements in his 7 August, 30 August and 7 September affidavits that the said Vehicles have "always" been in the possession of Mr Sharma. 2. An email dated 21 March 2018 from a repossession agent (Ms Trudy Payne) to Luke Rowles (Exhibit B, p 20; CB 552) states that at about that time Vehicle 5 was seen exiting an address in Homebush West. This is the vehicle which Toyota recovered on 19 April 2018. It is also the vehicle the keys of which Mr Joukhador stated he delivered on 4 July 2018. 3. A transcript of a call on 24 January 2018 from Mr Joukhador to Toyota was in evidence (p 28, Exhibit B; CB 560). The transcript contains a contract number which corresponds to the contract for Vehicle 3, indicating that Mr Joukhador may have given that registration number on telephoning the call centre. However, the conversation does not concern only that Vehicle, but instead contains many statements by Mr Joukhador about a vehicle which, in his view, had been repossessed by Toyota. According to the transcript, Mr Joukhador remarked in relation to that other vehicle: "The vehicle was stolen out of my possession". That evidence is capable of indicating that Mr Joukhador had other vehicles belonging to Toyota in his possession from time to time (discrediting his evidence that Mr Sharma "always" had all the Vehicles). Mr Rowles requested that Mr Joukhador make "disclosure of the whereabouts of the other 10 vehicles". Mr Rowles is recorded as then having said: "If you would like to provide the whereabouts of the vehicles, the other ten vehicles, I'm willing to take down addresses or any leads you can provide us on those" (CB 561); to which Mr Joukhador is recorded as saying: "I'm more than happy to give the addresses of the… Are you gonna come get them?". One might be able to infer from the whole of that conversation (including the fact that Mr Joukhador at no time denied knowledge of the location of the Vehicles) that, as at 24 January 2018, Mr Joukhador knew where the Vehicles were but for the fact that (having seen Mr Joukhador's evidence in the witness box) the statement "Are you gonna come get them" sounds to me as more likely being bluster and confrontation on Mr Joukhador's part than any acknowledgment that he had possession of the Vehicles or knew where to get them. 4. On 12 April 2018, Ms Nguyen, an officer of PPB Advisory, made a file note of a phone call in which Mr Joukhador had "indicated attempts to transfer the following vehicles" being Vehicles 4 and 6. The file note then states: While he did not specify the exact location of the vehicles, he mentioned they are in Belmore. 1. Again, I take little from this other than it is consistent with Mr Joukhador making broad assertions as to the vehicles. I consider I can place little weight on it. 2. On 12 April 2018, Ms Nguyen made a file note in which she recorded a conversation with Mr Joukhador in which he referred to Vehicle 4 and a vehicle with registration number CH5-7V6 and "advised they were parked on the road in Belmore". According to her file note, Mr Joukhador then expressed a desire to "get them [the vehicles] back on the road". The statement there recorded in relation to Vehicle 4 directly contradicts Mr Joukhador's statements in his 7 August, 30 August and 7 September affidavits that Vehicle 4 has "always" been in the possession of Mr Sharma. Again, I treat this again as the making of broad assertions by Mr Joukhador that may or may not have been correct at the time. 3. On 13 April 2018, Mr Joukhador telephoned Toyota and spoke with Mr Rowles, and in that conversation (p 39 of Exhibit B) he asked for a "payout figure" in respect of Vehicles 1 (p 41), 2 (p 43) and 10 (assuming YGV-76N to be a typographical error) (p 45)). Mr Rowles is recorded as having said: "[s]o where are those vehicles at work now, are they being used?" (which may in context be a reference to Vehicles which Mr Joukhador stated had been in the use of "Aussie Direct"), Mr Joukhador responding "I don't know where they are"; to which Mr Rowles responded "So you've sold them? Or have they all been stolen?", to which there was no direct answer (see p 46 of Exhibit B). In that conversation, Mr Joukhador is recorded as saying "[Ms Nguyen asked me] where are the vehicles? I said they are in Melbourne". 4. A file note of PBB Advisory of 12 June 2018 (Annexure J to Ms Francis' 3 July 2018 affidavit) records that, when a query was made in relation to Toyota's Vehicles, Mr Joukhador said he was "selling them himself". 5. I accept that, on the basis of the above evidence, it might be inferred that Mr Joukhador knew of the location of certain Vehicles in January 2018 and in June 2018 but equally it might be the case that he thought at those times that he would readily be able to locate them. Certainly, he could hardly have sold them (as opposed to refinancing and transferring their registration) if he did not know where they were. However, the evidence does not satisfy me that he had actual possession of the Vehicles at any particular time. 6. As to Vehicle 1, there is evidence (see p 26 Exhibit 1; CB 883-885) in which a finance broker, Mr Michael Khalil, refers to the submission on 25 July 2018 of a loan application on behalf of a third party in respect of Vehicle 1 and a statement by that third party (Ms Daniele Catanzaro) to the effect that he had submitted a loan application "to purchase" that Vehicle. There is also a statement made by Mr Khalil on 25 July 2018 that he had submitted a loan application on behalf of a third party in respect of Vehicles 2, 4, 6 and 7. 7. On 25 July 2018 (p 29 Exhibit 1), a director of CBR Logistics sent a letter to Toyota stating that it was "arranging finance to purchase the below vehicles", there referring to 2, 4, 6 and 7. In a letter dated 25 July 2018 (p 30 Exhibit 1, CB 887), Mr Khalil stated that he had "submitted a loan application for Joukhador Pty Ltd" regarding Vehicles 8, 9 and 10. In another letter dated 25 July 2018 (p 31 of Exhibit 1, CB 888), signed "Joukhador Pty Ltd", a statement was made that "Joukhador Pty Ltd has submitted a loan application to purchase" Vehicles 8, 9 and 10. 8. As adverted to above, I cannot draw any inference (beyond reasonable doubt) as to the possession of the Vehicles from the attempts to obtain finance on the security of the Vehicles. Certainly there is no evidence that such attempts were successful (which, had that been the case, might have supported such an inference – though not necessarily if the financier was not diligent in ascertaining the existence of the particular Vehicles). 9. On 31 May 2018, Mr Joukhador sent an email (p 1 Exhibit 1, CB 858) to Toyota Financial Services seeking "payout figures" for Vehicles 8, 9 and 10. (It should here be noted that Vehicle 10 had been recovered as at 19 April 2018 according to Mr Rowles' affidavit sworn 26 April 2018 at [35], which supports the inference that Mr Joukhador was seeking to make arrangements in relation to Vehicles of which he was not necessarily then in possession.) 10. In an email dated 20 June 2018 to Mr Rowles (p 5 Exhibit 1, CB 862), Mr Joukhador sought to pursue "conditional approval of $120,000 for three LWB vans", stating that "you went cold on me with the payout figure". The email then sets out the registration numbers for Vehicles 8, 9 and 10. Mr Joukhador in that email stated that "I wish people can understand how I'm trying to pay my debts". 11. Again, I cannot draw any inference beyond reasonable doubt from the requests made by Mr Joukhador for pay-out figures from Toyota. Attempts to make payment of the Toyota debts do not of themselves lead to the necessary inference that Mr Joukhador must have had possession of the Vehicles at the time. Clearly, Mr Joukhador did not then have possession of at least one of the Vehicles referred to in that offer (Vehicle 10), because the Vehicle had already been repossessed by Toyota. 12. On 4 July 2018, Mr Joukhador sent an email stating that he delivered keys which were keys for Vehicles 3, 5 (which had been recovered by Toyota's agent some months earlier); and a vehicle bearing the registration number DHX-59S (which does not appear to correspond to any of the Vehicles the subject of these proceedings). I draw nothing, from the fact that Mr Joukhador had in his possession those keys at that time, that Mr Joukhador also had possession of the Vehicles. The fact that he handed to Toyota keys to at least one Vehicle that had already been re-possessed at that time tells against any such inference. Conclusion 1. Turning, then, to the separate counts of contempt as contained in the statement of charge, I have concluded as follows. 2. As to each of the counts, as explained above I am not satisfied beyond reasonable doubt that Mr Joukhador had the requisite knowledge (until early July 2018) of the terms of the First and Second Orders, so as to permit a conclusion that any breach of one or more of those orders was a contempt of court. That finding is sufficient to dispose of each of the counts of contempt. 3. As to count 1, I am also not satisfied beyond reasonable doubt that the evidence establishes that Mr Joukhador was the "representative" of the company that is referred to in the email from RMS to the liquidators' office in relation to the request for transferral of the registration of Vehicle 1. 4. As to count 2, I also am not satisfied beyond reasonable doubt that, as at the relevant time (from February 2018) Mr Joukhador was either physically in possession or control of the then unrecovered Vehicles, so as to have been in a position (had he known of the terms of the Second Orders) either to deliver up the said Vehicles or to provide written notice of their whereabouts. The evidence is consistent with Mr Joukhador having parted with possession of the Vehicles (whether to sub-contractors or employees) and having displayed little interest in the whereabouts or use of the Vehicles thereafter. That, by so doing, the first defendant is likely to have breached its obligations to Toyota is not to the point. Mr Joukhador's seemingly cavalier attitude to his or his company's legal obligations is certainly not commendable but it does not suffice to found a finding of contempt. 5. Accordingly, though Toyota's concern as to the whereabouts of the as yet unrecovered Vehicles is understandable (and the outcome of this application will hardly be to its satisfaction), I must dismiss the contempt charges. 6. I have noted above the submissions that were made by both parties as to sentence if contempt had been found. It is not necessary in light of the above conclusion (and not appropriate) that I address those submissions. Suffice to say that, in accordance with the practice in contempt hearings of this kind, had I found any of the counts of contempt to have been established I would have listed the matter for a separate hearing on sentence. Orders 1. For the above reasons I make the following orders: 1. Dismiss the plaintiff's motion filed 1 May 2018. 2. Order that there be no order as to costs of the plaintiff's motion with the intent that each party bear its own costs of the motion, without prejudice to any entitlement the plaintiff may have to recover those costs under its loan agreements with the first defendant to which the second defendant is party as guarantor. 3. List the matter for further directions, as necessary, before the Registrar on a date to be fixed. ********** Schedule Vehicle 1 – Registration No CG2-4HM Vehicle 2 – Registration No CH8-6HA Vehicle 3 – Registration No DFR-96Y Vehicle 4 – Registration No CH5-7VS Vehicle 5 – Registration No DHM-12T Vehicle 6 – Registration No CI8-7SG Vehicle 7 – Registration No CJ0-0QS Vehicle 8 – Registration No YDV-76Q Vehicle 9 – Registration No YDV-76P Vehicle 10 – Registration No YDV-76N DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 February 2019