Gap Constructions Pty Ltd v Vigar Pty Limited

Supreme Court of NSW|2011-09-08|Before: Einstein J, Mr P, White J, Campbell J, Palmer J

The background to this sentence 1The contempt application of 23 August 2011 and this occasion for submissions on sentence arise out of a claim by the plaintiffs that on or around 30 June 2010, the sum of $594, 533 was transferred from Gap Constructions Pty Ltd (the first plaintiff), a company of which Peter Bega (the second plaintiff) was the director, to Vigar Pty Ltd (the first defendant) on the instructions of Con Bosganas (the second defendant). The plaintiffs claim that these transactions were effected without the plaintiffs' consent. 2There is a second claim by the plaintiffs that Bega Group, at the instructions of Mr Bosganas, transferred $290, 028 to Bugong (the fourth defendant) without the plaintiffs' consent on or around the same date. 3The defendants raise a defence that the money transferred was used to satisfy debts owed by the plaintiffs. The defendants further claim that moneys were removed, without their consent, from the Bega Group account. 4In accordance with this defence, White J made orders on 27 June 2011 requiring the plaintiffs to serve on the defendants by 30 June 2011 at 5pm an affidavit setting out their knowledge as to the reasons for a series of transactions from the Bega Group accounts. These orders were not complied with and a series of further extension orders were made which also were not complied with. 5On 26 August 2011, the Court found the first and second plaintiffs guilty of contempt for failure to comply with these orders. Paragraphs 78 and 79 of that Judgment stated: "This shows [the plaintiffs in] a wilful disregard for the Court's orders and a finding of contempt in respect of both plaintiffs is appropriate. The contempt charge has been proven beyond a reasonable doubt. In all of the circumstances it is appropriate for the Court to closely consider whether a custodial sentence or some other approach should be entertained. " 6Following that decision, the plaintiffs and the first, second and third defendants addressed the Court as to the appropriate sentence.

The relevant principles 7Campbell J in NCR Australia v Credit Connection [2005] NSWSC 1118 at [24] indicated that the principles to be applied in sentencing for contempt are the same as those applicable to sentencing for a criminal offence. His honour made reference to Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314. These principles include the sentencing principles in the Crimes (Sentencing Procedure) Act 1999 cf: Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 at 321 (in relation to its predecessor, the Sentencing Act 1989 ). The factors to be taken into account on sentencing are set out in sec 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 8In Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259, Palmer J usefully summarised the factors relevant to a sentence for contempt at [29] as: (1)the seriousness of the contempt proved; (2)whether the contemnor was aware of the consequences to himself of what he proposed to do; (3)the actual or potential consequences of the contempt on the proceedings in which the contempt was committed; (4)whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest: see, for example, Von Doussa v Owens (No 3) (1982) 31 SASR 116; (5)the reason or motive for the contempt; (6)whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; (7)whether there has been any expression of genuine contrition by the contemnor; (8)the character and antecedents of the contemnor; (9)what punishment is required to deter the contemnor and others of like mind from similar disobedience to the orders of the Court; and (10)what punishment is required to express the Court's denunciation of the contempt.

The relevant factors 9I now turn to consider the factors relevant to sentence. Wilful disobedience of the Court's orders is a serious matter and in this respect, the following submissions of the first, second and third defendants are of substance: (1)The plaintiffs were aware of the orders and what they required. There is evidence in these proceedings that the terms of each of the relevant orders were brought to the attention of the contemnors immediately or shortly after they were made. Mr Stevens deposed in his affidavit sworn 19 August 2011 at [16] that "[a]t all material times the plaintiffs were advised of the orders made at each of the directions hearings." Mr Stevens gave oral evidence that he also drew to the attention of Mr Bega the complaints in the letter dated 6 July 2011 It was put to Mr Bega at that he was not telling the truth when he denied knowing about complaints by the applicants in letters dated 1 July 2011 and 6 July 2011. The Court accepted that Mr Bega must have been aware of what the orders required; (2)The plaintiffs were aware of the consequences of non-compliance. There were several extensions of time to comply. Further, a notice of motion for committal, sequestration or fine for contempt was prepared (PK5 5-15) and shown to the plaintiffs' legal representatives before court on 18 July 2011 and the applicants gave the respondents the option of the motion for committal, sequestration or fine for contempt to be filed in court and directions made for evidence and hearing of that motion or alternatively an extension of time to comply. The plaintiffs' legal representatives immediately took instructions then notified that the plaintiffs elected for the extension of time alternative; and (3)Despite knowing the terms of the orders and the consequences of non compliance, the plaintiffs until the occasion of these submissions, failed to purge their contempt 10In addition there has been a significant waste of the Court's time and a resultant large cost to the public. This is a factor Kirby P identified as important in Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 316. With respect, I accept his Honour's views in this regard. 11Counsel for the plaintiffs also set out in some detail the factors that they submitted were relevant to the Court's discretion on sentence.

Purging of contempt 12Of significant importance to the Court exercising its discretion is the fact that the plaintiffs have now purged their contempt. Mr Napoleon Tsanis swore a further very detailed affidavit of 6 September 2011, which in my view provides full and complete disclosure in compliance with Order 9 of White J made on 27 June 2011 and Orders 4, 5 and 6 of White J made 4 July 2011 which were effectively extended on 18 July 2011. In that regard the various complaints raised by the defendants on the application and referred to in my Judgment have been addressed. 13The defendants have further purged their contempt through the further affidavit of Mr Peter Bega sworn 6 September 2011. This affidavit acknowledged the shortcomings of earlier attempts to comply with the various orders of the Court and unreservedly apologises to the Court for the lack of compliance.

Other factors 14Of course, mere compliance with orders following a finding of contempt is not sufficient to avoid a sentence. The Court must consider the totality of factors. In this regard, I accept each of the following factors as important in determining the appropriate sentence: (1)Seriousness of the contempt proved - I do not accept the plaintiffs' submission that the contempt was on the lower end of relative seriousness. The contempt lay in the middle range of seriousness, in that it was wilful but not contumacious cf: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 315). The contempt showed a wilful disregard for the Court's orders; (2)Whether contemnor aware of the consequences of what he proposed to do - On 26 August 2011, the Court found that the plaintiffs were aware of the consequences of their actions; (3)Actual or potential consequences of the contempt upon the proceedings - I accept but for the delay caused to the proceedings primarily associated with this application, there is no actual or potential consequences of the contempt upon the substantive issues to be determined in the proceedings; (4)Whether committed in context of proceeding alleging crime or conduct seriously prejudicial to public interest - I accept that the contempt was not committed in a criminal context; (5)Reason or motive for contempt -The plaintiffs showed a disregard for the Court's orders; (6)Whether contemnor received or sought to receive benefit or gain from contempt - The Court does not find that the plaintiff received or sought to receive any benefit or gain from the contempt; (7)Whether any expression of genuine contrition by the contemnor - The plaintiffs have expressed genuine remorse and contrition firstly during the course of cross examination on 23 August 2011 and further by affidavit of Mr Bega sworn 6 September 2011; (8)The character and antecedents of the contemnor - The character and antecedents of the contemnor appear exemplary including but not limited to business credentials, Mr Bega's philanthropic work and no antecedents. (9)Punishment required to deter the contemnor and others of like mind from similar disobedience to orders of the Court -The Court accepts that appropriate requirement to deter the contemnor and others of like mind from similar disobedience to orders of the Court have been made in the published reasons for judgement delivered on 26 August 2011 together with a costs order adverse to the interests of the plaintiffs.

Sentence 15The Court finds the offence proven. However, the plaintiffs have now purged the contempt. In light of the fact that Mr Bega has not had any previous criminal convictions, including any prior convictions for contempt, as well as his expression of genuine contrition, the Court deems it inexpedient to inflict any punishment. 16Accordingly, the charge is dismissed under s10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Costs 17The principled exercise of the material discretion is to order that the plaintiffs pay the defendants' costs on an indemnity basis of and incidental to the 23 August 2011 application and today's judgment.

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: 09 September 2011

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