Bydand Holdings Pty Limited v Pineland Property Holdings Pty Limited & Ors

CATCHWORDS : Practice and Procedure - Contempt of Court - Failure to comply with undertaking to the Court

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

CASES CITED : NRC Australia v Credit Connection [2005] NSWSC 1118

Bydand Holdings Pty Limited (Plaintiff) PARTIES : Pineland Property Holdings (First Defendant) Knight Frank Australia Pty Limited (Second Defendant) Vincent Pang (Third Defendant)

COUNSEL : Mr P Russell (Plaintiff) Mr C Birch SC, Mr A Cassels (Third Defendant)

SOLICITORS : Barringer Leather Lawyers (Plaintiff) Maxim Legal Pty Limited (Third Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

Friday 11 September 2009 ex tempore Revised 14 September 2009

50058/08 Bydand Holdings Pty Limited v Pineland Property Holdings Pty Limited & Ors

JUDGMENT The present status of these proceedings 1 The judgment delivered in these proceedings on 26 June 2009 [2009] NSWSC 584, found that the contempt charge against Mr Pang had been proven beyond reasonable doubt. The holding was that it was appropriate for the Court to closely consider whether an order for a custodial sentence should be made. The court made clear that at an appropriate time the matter would be before the Court for the purpose of permitting Mr Pang to address submissions in relation to sentence. The reasons made clear that prior to that occasion, it was appropriate to order that a Probation and Parole Office Pre-Sentence Report be prepared. 2 Consistently with the orders then made a Community Offender Services Probation and Parole Service Pre-Sentence Report was provided to the Court on 14 August 2009. The contents of that report have been communicated to the parties. The short report was in the following terms: Sources of information Interviews with offender Home visit to offender Telephone contact with friend/business associate of 17 years Telephone contact with General Practitioner Perusal of Judgment of justice Einstein on 26 June 2009 Documentation provided by the offender Discussion with Community Service team, Chatswood District Office

The offender has had no prior contact with this Service.

Mr Pang resides alone at Castle Cove in a home which he stated is owned by his mother a Hong Kong resident. The offender married in 2004 and there are two children from this union aged eighteen months and four years. Mr Pang stated he and his wife separated approximately nine months ago and that she and his children are currently residing in Hong Kong. He reported that his financial difficulties had placed strain on their relationship and that he has had no contact with his family for six months. The offender was tearful in discussing this situation and reported missing his family.

The offender was born in Hong Kong and stated he migrated to Australia with his family in the early 1980's. His parents retuned to reside in Hong Kong when he completed his schooling and his father died on 15 September 2008 as a result of an illness. The offender appears to have no family support in Australia.

Mr Pang provided documentation to this Service which indicates he is involved in Community work and has been for many years. Contact with his friends confirmed this.

Mr Pang stated he completed his education as a boarder at a denominational school in Bathurst, attaining the Higher School Certificate in 1985. He stated he then completed Bachelors degrees in both Building and Economics at University. This Service has sighted documentation confirming the offender completed further studies for a Bachelor of Applied Science awarded in 1992, Masters in Project Management, awarded in 2000 and a Masters in Facility Management awarded in 2005.

The offender stated he has been involved in his own property management and development business for the past eighteen years. He stated this business employs some twelve full time staff, three part time staff and up to twenty contractors from time to time. Mr Pang stated that, due to business difficulties, the Bank has taken control of his cash flow.

Mr Pang claimed he is currently receiving income from consultancy work such as supervising large scale renovations and rental consultancies.

Mr Pang broke down when discussing his father's death and his separation from his wife and children. It appears he is experiencing ongoing grief over these matters. He also expressed concern regarding his business and financial difficulties and state he is having trouble functioning in his daily life.

This Service referred the offender to his General Practitioner who confirmed she has referred him to a psychologist for counselling pursuant to a Mental Health Care Plan.

The offender suffers from asthma for which he takes medication.

Mr Pang advised he has been experiencing substantial financial difficulties due to the calling in of bank loans, for which he was personal guarantor and has been unable to refinance.

The offender expressed regret for his actions in not complying with the undertaking given to the Court. He stated he now realises he was wrong and that this was a "bad decision" on his part. In discussion of the offence Mr Pang said at the time he felt overwhelmed by his personal difficulties and business problems.

Enquiries made with the offender's friend and business associate of 17 years indicated the offender lacks organisational skills, does not keep a diary and that he is disorganised and chaotic in the management of his affairs. When this was discussed with the offender he acknowledged that this has been an issue for over the twelve months as a result of the various difficulties he has been experiencing and poor decision making skills as a result.

Enquiries made in the preparation of this report indicate Mr Pang has been overwhelmed by a number of difficulties in his life which have had a negative impact on his mental health. Factors such as the separation from his wife and children and the illness and death of his father, together with his significant financial and court proceedings as a result of his business difficulties have all had a significant impact on the offender. Due to this, he has been referred by a General Practitioner for treatment with a psychologist and it is considered she should assist him to more appropriately manage these issues.

This offender has been assessed as unlikely to require, or benefit from, supervision by this Service for the following reasons: he has been referred to an appropriate treatment provider and there are no other issues which could be addressed by way of supervision.

The offender has been assessed as suitable for a Community Service Order as per the requirements of S86(1) of the Crimes (Sentencing Procedure) Act 1999 and has signed an undertaking as required by S86(5) of this Act. If such an order is made, the offender should report to Chatswood District Office.

While the offender has been assessed as suitable to perform unpaid work under a Community Service Order, it is considered that no available developmental program would significantly benefit the offender for the following reasons: there are no appropriate programs conducted by this Service.

The offender is eligible and has been assessed as suitable for a Periodic Detention Order as per the requirements of S65A, S65B and S66 (1) of the Crimes (Sentencing Procedure) Act 1999 and has signed an undertaking as required by S66 (1)(f) of this Act. 3 The Court has this morning had the benefit of submissions as to sentence. Dealing with the matter 4 The earlier judgment and the reasons therein clearly explained the circumstances in which the contempt charge was found to have been proven beyond reasonable doubt: cf particularly paragraph 51. Likewise the earlier judgment [at paragraphs 46-49] examined and explained a number of the parameters concerning the range of possible types of penalty and the standard of proof of facts relevant to sentence. In particular the judgment of Palmer J, identified as appropriate factors for consideration matters including:

ii. whether the contemnor was aware of the consequences to himself of what he proposed to do;

iii. the actual or potential consequences of the contempt on the proceedings in which the contempt was committed;

v. whether the contemnor has received, or ought to receive, a benefit or gain from the contempt;

v. whether there has been any expression of genuine contrition by the contemnor;

vi. the character and antecedents of the contemnor;

vii. what punishment is required to deter the contemnor and others of like mind from similar disobedience to the orders of the Court;

viii. what punishment is required to express the Court's denunciation of the contempt. 5 I have taken each of these matters into account. 6 Section 21A (1) of the Crimes (Sentencing Procedure) Act requires that in determining the appropriate sentence for an offence, the court is to take into account the following matters:

(a) the aggravating factors referred to in subsection (2) that are relevant and known to the court;

(b) the mitigating factors referred to in subsection (3) that are relevant and known to the court;

(c) any other objective or subjective factor that affects the relevant seriousness of the offence. 7 Consistently with the dictates of section 21A of the Act I have taken into account as mitigating factors the following matters :

i. that the contemnor does not have any record of previous convictions;

ii. that the contemnor was a person of good character;

iv. each of the matters set out in the Probation and Parole Service Pre-Sentence Report : noting however that the earlier judgment did not accept that his conduct demonstrated any genuine remorse or contrition . Nonetheless some weight is given to the report when the contemnor is said to have expressed regret for his actions in not complying with the undertaking given to the court;

v. in particular the mental health of the contemnor, the separation from his wife and children, the illness and death of his father together with his significant financial and court proceedings as a result of his business difficulties. 8 I have taken into account the submission by senior counsel appearing for the contemnor that in the sentencing exercise, the absence of contrition or remorse is not an aggravating factor: nor is the manner of conducting of the defence an aggravating factor. 9 As already indicated I have also taken into account that the contemnor has no criminal record,. I have also taken into account the fact that there is evidence particularly in the affidavit of Mr Seng [who holds high office in certain community groups] that he considers the contemnor to be charitable, trustworthy, honest and reliable. 10 Having considered the options of a good behaviour bond or a fine the Court has concluded that neither would reflect the true seriousness of the offence. 11 The Court has concluded that a custodial sentence is in all of the circumstances inappropriate. 12 The purpose of the order to be made is to require that as punishment for the contempt Mr Pang is to perform 100 hours of unpaid community service.

[The Court made clear to Mr Pang that if he did not complete the order satisfactorily, further action could be taken against him and the order could be revoked. Also that it could also be revoked if he was sentenced for other offences. Also that if it is revoked he could be sent to prison] Costs 13 Following the announcement of the reasons for the order that Mr Pang carry out 100 hours of unpaid community service the plaintiff has sought indemnity costs from the contemnor. The application is opposed, although as I have understood Dr Birch, Senior Counsel for the contemnor, what would not be opposed is an order that the costs of the notice of motion and hearing today be ordered against his client on a usual basis. 14 The circumstances in which the contempt was found do not require to be repeated. The matter was comprehensively dealt with in the original judgment to which I have referred. 15 I accept that in imposing costs orders the court has a principled task and that each circumstance requires careful examination. Justice Campbell in NRC Australia v Credit Connection [2005] NSWSC 1118 said at paragraph 102:

"In imposing a costs order for contempt, the court aims as far as it can to provide full indemnity to a party who has obtained a court order which has been breached in a way which amounts to contempt. Thus the usual order for costs is that the contemnor pay the costs on an indemnity basis." 16 His Honour added: "There is no reason to depart from the usual order in the present case." 17 With the greatest respect to his Honour, my own view is that it is often unwise to endeavour to formulate a 'usual order' whether in respect of costs or anything else in any litigation. Having said that, the spirit and intent of his Honour's observations must be obvious to all. In any event whether the usual order for costs is that the contemnor pay the costs on an indemnity basis or not, in my view the current circumstances certainly require, in terms of a principled exercise of the relevant discretion, that an order be made of the type sought by the plaintiff. 18 In those circumstances the further order which is to be made is that the contemnor pay the costs of the plaintiff's notice of motion including the costs of today on an indemnity basis. Orders 19 The orders of the Court are:

i. The court convicts Mr Vincent Pang and orders that he carry out 100 hours of unpaid of community service.

ii. The court orders that Mr Pang report to the Chatswood District Office of the Department of Corrective Services Probation and Parole Service first floor, 2 Help Street Chatswood NSW 2067 on Monday 21 September 2009.

iii. The court orders that Mr Pang pay the costs of the plaintiff's notice of motion and costs of today on an indemnity basis and that costs of the plaintiff are to be assessed forthwith.

iv. By consent the proceedings are stood over for directions to the Commercial List before the Commercial List Judge on Friday 18 September 2009.

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.