Huang & Ors v Liao

Judgment

1. By Notice of Motion filed on 14 December 2021, the Plaintiffs sought a declaration that the First Defendant, Ms Jingwen Liao (also known as Jingwen Kurz), had committed a contempt of Court and that she be punished for that contempt. By their Amended Statement of Charge filed on 16 February 2022, the Plaintiffs pleaded the facts on which this application relied and identified the nine charges that were originally brought.
2. Ms Liao did not contest her liability in respect of five of those charges. She accepts that, in contravention of freezing orders made by Ward CJ in Eq (as her Honour was then) on 1 June 2020, she caused, permitted and allowed a property situated at Mudgeeraba in Queensland ("Queensland Property") to be sold between July and September 2021; caused, permitted and allowed $600,000 to be transferred from a solicitors' trust account to an account in Hong Kong in the name of her brother, Mr Ziwen Liao, on or about 14 September 2021; caused, permitted and allowed $227,670.40 to be transferred to an account in the name of her daughter, Ms Ailin Chen, on or about 14 September 2021; caused, permitted and allowed $140,000 to be transferred from a solicitor's trust account to an account in the name of her husband, Mr Graham Liao, on or about 14 September 2021; and caused, permitted and allowed $25,000 to be paid from the proceeds of sale of the Queensland Property to an estate agent on or about that date.
3. Ms Liao contested her liability for the remaining four charges, and, in my judgment delivered on 29 March 2022 in Huang v Liao [2022] NSWSC 347 ("Earlier Judgment"), I held that liability for those charges was not established. I now turn to the question of sentence in respect of the five charges to which Ms Liao has pleaded guilty. I proceed on the basis that, as Mr Rizk, who appears for Ms Liao, points out, when the Court is finding facts for the purpose of a sentence concerning contempt of court, a fact which will be used in a way which is detrimental to the offender must be proved beyond reasonable doubt, while a fact which will be used in a way which will be advantageous to the offender can be proved on the balance of probabilities: NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 ("NCR") at [27]; McGuirk v University of NSW [2010] NSWSC 448 at [11].

Background facts and matters arising from then liability hearing

1. I set out the background facts and set out several findings of fact that are relevant to the five charges to which Ms Liao has pleaded guilty in the Earlier Judgment (at [4]ff) as follows: "It appears that the underlying dispute in the proceedings concerns an alleged investment of $2.2 million made by Mr Huang in the Third Plaintiff, PEEQ Global Education Pty Ltd ("PEEQ"). The Plaintiffs claim that Ms Liao diverted those funds to the Second and Third Defendants, JW Liao Pty Ltd as trustee for the Liao Family Trust and Vustar Pty Ltd ("Vustar"). … On 1 June 2020, Ward CJ Eq made the Restraining Orders (Ex P3) which restrained Ms Liao from dealing with certain assets, including the Queensland Property and also ordered Ms Liao to provide certain information. Those orders were served on Ms Liao on 2 June 2020 and, on 4 June 2020, extended to 22 June 2020. Ms Liao was represented by a solicitor when the orders made on 4 June and 22 June 2020, were made. There is a dispute … as to the extent of her contact with that solicitor. By the 9 June 2020 Affidavit, Ms Liao claimed that the Queensland Property was subject to a second mortgage to the Shavell Trust and the amount outstanding was approximately $429,873. … By an email dated 14 June 2020 (Ex P9), Mr Junn [the solicitor acting for the Plaintiffs] advised the solicitors then acting for Ms Liao that affidavits then provided failed to comply with the orders previously made by Ward CJ in Eq by failing to supply specified information. On 22 June 2020, the Restraining Order was extended by Ward CJ in Eq until further order. On 7 April 2021, Ms Liao appointed a new solicitor, Mr Lukas Lim, to act for her in the proceedings (Ex P2). There is evidence that appears to support a conclusion that Ms Liao subsequently took steps to sell the Queensland Property despite the Restraining Order, consistent with Ms Liao's admission of liability in respect of the first five charges. A special condition to the contract for the sale of the Queensland Property dated 27 July 2021 evidenced knowledge of the Restraining Order, recording that the contract was conditional upon any "freeze orders placed on the property or the seller being removed, prior to settlement" (Ex P4, 115). I recognise that there is some evidence of Mr Graham Liao's involvement in the sale process, including an email dated 28 July 2021 from the estate agent sent, inter alia, to Mr Liao, although it referred to Ms Liao's request that the email be sent (Ex P4, 110). However, there are also multiple references in emails from the firm acting in the sale of the property to telephone conversations with Ms Liao in respect of the sale of the property (Ex P4, 133, 147). There are communications which, on their face, occur between the conveyancer and Ms Liao, including in Chinese (for example, Ex P4, 137, 141), and responses to emails from the conveyancer were also sent in Chinese and from Ms Liao's email address (Ex P4, 140). Other communications were apparently sent from Ms Liao's iPhone (Ex P4, 145) although I recognise that Ms Liao claims that her husband had access to that iPhone. The proceeds from the sale were deposited to a trust account in Ms Liao's name (Ex P4, 193). These matters do not sit well with a claim that Mr Liao conducted the sale process, to Ms Liao's exclusion, since he did not write or speak Chinese, without postulating an elaborate conspiracy by which Mr Liao sometimes translated his correspondence from English to Chinese and sent it from his wife's electronic devices in order to create the impression it was sent by his wife. An email dated 1 September 2021 to the conveyancer, sent in Ms Liao's name, indicated that she was content to settle the sale of the Queensland Property on 13 September 2021 as long as she did not have to move until 7 October 2021 and NAB had released the title. That email was a response to an email from the conveyancer in Chinese addressed to Ms Liao, although Ms Liao denies that she sent the email and seeks to suggest that her husband did so. ... On or about 13 September 2021, Ms Liao disposed of the Queensland Property and it is common ground that took place in breach of the Restraining Order. By the 16 November Orders and further orders made on 30 November 2021, Ward CJ in Eq required Ms Liao to file and serve an affidavit updating her assets and liabilities and identifying the account details where the proceeds of sale of the property were located. By an email dated 2 December 2021 (Ex P3, 55), the then solicitors for Ms Liao conveyed "sincere apologies for the non-compliance with orders" and provided an account number for a bank account in Guanzhou, China, where sale proceeds had been deposited. By the 6 December 2021 Affidavit, Ms Liao claimed she did not know there was a freezing order on the Queensland Property. ... By an email dated 6 December 2021 (Ex P7), Mr Junn advised the solicitor then acting for Ms Liao that a further affidavit dated 6 December of Ms Liao's husband did not comply with the 16 November Orders, the further orders made by Ward CJ Eq on 30 November 2021 and the 3 December Orders, because it was not an affidavit of Ms Liao and did not contain specified information. On 14 December 2021, the Plaintiffs filed a motion seeking declarations of contempt against Ms Liao, accompanied by a Statement of Charge, and Kunc J issued a warrant for Ms Liao's arrest, when she was in China. Ms Liao was arrested on her return from China on 13 February 2022, and brought before the Duty Judge, Parker J on that day, and his Honour ordered that she be held in remand. At the conclusion of the hearing on 14 February 2022, Henry J made orders that Ms Liao remain in custody unless security in the sum of $600,000 was provided and Ms Liao surrendered her travel documents. No such security was provided. Her Honour also directed that Ms Liao provide an updating affidavit as to her assets and liabilities by 18 February 2022 and the matter be stood over to her on 21 February 2022. Ms Liao did not comply with the order to provide such an affidavit."
2. I also summarised the affidavit evidence and cross-examination at the liability hearing in the Earlier Judgment (at [15]ff) and do not repeat that summary. I now turn to several factual matters arising from evidence at the liability hearing.
3. First, Ms Liao's evidence led at the liability hearing was largely directed to establish a lack of understanding of the freezing orders, reliance on her husband and lack of involvement in the sale of the Queensland Property. As I will note below, Ms Liao's evidence as to her lack of involvement in the property sale required her to attribute communications with the conveyancing solicitor to her husband, even when they were in her name and in Chinese, and did not account for her direction where the sale proceeds should be sent. Other aspects of her evidence, including as to her lack of involvement with legal advisers, were inconsistent with evidence which she later gave at the penalty hearing. There are several occasions on which Ms Liao provided false or misleading information to immigration authorities, although she generally seeks to attribute these to others. I also find that Ms Liao's previous evidence before Henry J as to her inability to communicate with family members to retrieve the monies while she was in custody was falsified in the course of that hearing, and there is no real possibility that she was simply mistaken as to that matter. I do not consider that I can accept Ms Liao's evidence at the liability hearing, unless it was corroborated by other evidence or against her interests, which was generally not the case. Some aspects of Ms Liao's evidence at the penalty hearing, to which I refer below, were more plausible.
4. There is a substantial factual dispute as to the extent of Ms Liao's understanding of English, which I will address although it is ultimately of limited significance where I find that Ms Liao knew of the freezing order at the time she sold the Queensland Property in breach of it, and was bound to take steps to ensure that she understood that order where she knew that it had been made. I found, in the Earlier Judgment at [24]ff that: "There was also substantial other evidence in the proceedings concerning Ms Liao's background and English skills, and Ms Liao was cross-examined at length in that regard. Ms Liao does not contest, and the transcript of the proceedings before Henry J on 14 February 2022 (Ex P6) confirms, that she has at least some ability to understand and communicate, in oral English. The question of her ability to read written English is more contentious. In 2005, Ms Liao completed an application to visit Australia for tourism, where the questions were formulated in English and Chinese but her answers were largely provided in English. She there stated, inter alia that: "I am a boss and shareholder. Our company the business all well. When I visit to Australia stay 2 months, I will during enough money and my fiance [sic] will offer the Accommodation and some costs." Ms Liao denied the truth of the statements as to her role in cross-examination. She declared in that form that she had completed it with no assistance, although she also denied the truth of that statement in cross-examination; and that form also acknowledged that, if the form had been completed with the assistance of another person, the information was true and correct and had been included with her knowledge, consent and understanding. That document attached a further statement of over a page, in English, signed by Ms Liao, which recorded that she was "learning English" to address her plans for marriage to her first Australian husband. Ms Liao was also cross-examined as to her description of her occupation as "accountant", in the certificate of marriage to her first husband dated 23 October 2005, and denied the accuracy of that description of her occupation in cross-examination (Ex P5, 349). More recently, on 20 May 2021, Ms Liao sat a citizenship test in respect of her application for Australian citizenship that was administered in English. That test, as described in a letter dated 20 April 2021 from the Department of Home Affairs (Ex C5, 355) was as follows: "The citizenship test is conducted in English, consists of 20 multi-choice questions and is computer-based. You will have 45 minutes to complete the test. If you do not complete the test within that time, a result will be given based on the questions you have completed. No extensions of time will be granted." That test was "closed book" and communication with anyone, by phone or otherwise, other than the test administrator was prohibited. In order to prepare for the test, Ms Liao was required to read a resource booklet, which was available in English and other community languages. The testable section covered material including Australian political values, the structure of Government and the law in Australia, and practice test questions were provided. On the face of it, Ms Liao would have had to read the questions and read the answers in order to choose the correct answers and achieve the pass mark of 75%, although she claims that she could only read them because she had studied the material in its Chinese version. Ms Liao passed that test, in English, because she was advised by letter of the same date that her application for Australian citizenship had been approved. I am conscious that Ms Liao's claim not to read English, at least in respect of complex matters, is inconsistent with the fact that she has affirmed multiple affidavits in English and without the aid of an interpreter. However, there is a question, on the evidence before me, as to whether that reflects a default on the part of her former solicitors, in failing to recognise that she required an interpreter and to engage an interpreter so that she understood those affidavits before they were affirmed. I am conscious that issues also arose in Ms Liao's cross-examination as to the circumstances in which such affidavits were affirmed, with Ms Liao at times denying that she affirmed them before a solicitor, whether in person or virtually, although those affidavits recorded that they were affirmed before a solicitor, either in person or virtually."
5. Mr Junn, who appears for the Plaintiffs, submits that Ms Liao's evidence that she knew only basic English and her ability to read or write was limited was "troubling and not assisting her position" and refers to a citizenship test conducted in English to which I referred above for that proposition. He also makes wider submissions as to the nature of the information provided to the Australian Government in respect of the immigration process concerning Ms Liao. Ms Liao herself seeks to deny the accuracy of some of the information that she provided to the Australian Government, including as to her role in a business in China, in her evidence in cross-examination. However, it is not necessary to reach findings as to those matters to determine the issues that arose at this hearing.
6. Mr Rizk responds that the Court should find that Ms Liao was able to study for the citizenship test in Chinese; she was able to complete sample questions in Chinese; she studied for the test extensively for a prolonged period of time; she was able to compare the sample questions in Chinese with the sample questions in English to identify the correct answer in English; and she was able to rely upon her study in Chinese and her comparison of material between Chinese and English to assist her undertake the test in English. I am not affirmatively satisfied of any of these matters, which all depend on Ms Liao's evidence. Mr Rizk also submits that that the Court should not be satisfied beyond reasonable doubt that it was not possible for Ms Liao to pass the citizenship test (on her second attempt) without a good or beyond basic ability to read or understand written English or that Ms Liao's passing the citizenship test establishes that she has a good ability to read or understand written English. I am not satisfied beyond reasonable doubt that Ms Liao was not able to pass the citizenship test by a combination of her understanding of written English, the extent of which remains unknown, the strategies referred to above, and chance in a multiple choice test.
7. Mr Rizk also submits that the Court should find that Ms Liao has some basic proficiency in oral English, and is able to engage in simple conversations for day-to-day life; that she has a basic understanding of written English language, but has a limited ability to read or write English; she has limited ability to read or understand written English in relation to matters that are of a complex or technical nature; and Ms Liao often relies on the people around her, such as her husband and daughter, to provide her with assistance in relation to reading, writing and understanding written English and, when such assistance is provided, Ms Liao does not generally seek to verify the accuracy of that assistance. I find, beyond reasonable doubt, that Ms Liao has a better understanding of oral English than she was prepared to accept in her evidence, as was apparent in her participation in the hearing before Henry J. I am unable to reach a finding beyond reasonable doubt as to the extent of her knowledge of written English, where her and her daughter's evidence in that regard was largely untestable and I do not accept that Ms Liao is a truthful witness.
8. Mr Rizk also submits that the Court should not be satisfied beyond reasonable doubt that Ms Liao affirming affidavits in English (that do not contain a written translation) indicates that Ms Liao can be taken to have a good or beyond basic ability to read or understand written English where, he submits, Ms Liao has denied understanding the content of at least some of these affidavits and there is no positive evidence relied upon by the Plaintiffs to establish that Ms Liao understood the content of those affidavits. I am unable to accept Ms Liao's denial of her understanding of the affidavits, but that is also not sufficient to support a finding beyond reasonable doubt as to the level of her understanding of written English, alone or together with other matters. Ultimately, I am unable to reach a finding as to the extent of Ms Liao's ability to read or understand complex English, but little turns on this for the reasons noted above.
9. Turning now to Ms Liao's understanding of the freezing order, I addressed Ms Liao's claim that she did not understand the freezing order or that it continued in effect in the Earlier Judgment where I observed (at [20]ff) that: "Ms Liao acknowledges in that affidavit that, in June 2020, she was delivered documents, although she claims she did not understand them, and that her husband told her a freezing order had been issued by the Court and she could not sell the Queensland Property. She claims that she was later told by her husband that freezing orders must be extended every 90 days. She claims to have subsequently signed a document with a lawyer to respond to the freezing order, and identifies that document as the 9 June 2020 Affidavit (Liao 3.3.22 [53]). She refers to a further conversation in May or June 2021 with her husband which led her to form the impression that she was "no longer in trouble" and did not need to have further involvement in the proceedings (Liao 3.3.22 [54]). She claims that, in July 2021, her husband told her that the freezing order was not extended and she could sell the Queensland Property, to which she responded that she did not want to do so, and refers to subsequent dealings with a real estate agent and with her husband in respect of the sale of the Queensland Property. Her evidence is that the solicitors who acted in the conveyance of that property did not explain to her the reference to the freezing order that was included in the contract for sale of the property. Ms Liao claims that, when the Queensland Property was listed for sale and until its sale, she did not understand that its sale was in breach of the Restraining Order (Liao 3.3.22 [58]). Ms Liao's evidence is that she did not write emails which related to the sale of the property, sent from her email address, and she claims that her husband did so. It will not be necessary to determine that question, which turns on Ms Liao's credit, at the liability hearing. Ms Liao also claims that her husband directed her as to which documents to sign to proceed with the sale of the Queensland Property (Liao 3.3.20 [70]). Ms Liao's evidence is that, after the sale of the Queensland Property, her husband asked her to transfer the money to him, but she insisted on transferring "some money", in fact constituting over $825,000, to her daughter in Queensland and her brother in Hong Kong. She claimed, in March 2022, that she had not "had a chance to ask for the money to be returned to me" because of her arrest and incarceration after she returned from China to Australia (Liao 3.3.22 [76]). It is also not necessary to determine whether that evidence should be accepted, although it appears she had made numerous telephone communications between her arrest and when she was brought before the Court. She also refers to the circumstances of her travel to China in late November 2021. Ms Liao was cross-examined at substantial length, but it is not necessary or desirable to express any view as to her credit in order to determine the question of liability, and it is preferable not to do so given that question will be central in determining the applicable penalty."
10. Mr Rizk accepts that Ms Liao was made aware of the freezing order. He accepts that the freezing order was served on her personally and she accepted in cross-examination that she provided it to her husband who advised her of its effect (T27-28). Even if Ms Liao had not accepted that she knew of the freezing order, I would have found that her culpability was not lessened by any failure to take steps to translate and understand the order, which she knew existed, and to confirm that it in fact no longer applied, as she claimed she understood. I referred to the relevant case law in the Earlier Judgment: In the Marriage of Georgopoulos (1982) 8 Fam LR 807 at 809; Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535 at 538; Kirkpatrick v Kotis (2004) 62 NSWLR 567 at 578, where Campbell J also observed that the recipient of a Court order "is expected to try to understand it and obey it"; Athens v Randwick City Council (2005) 64 NSWLR 58 at 71; Deckers Outdoor Corp Pty Ltd v Farley (No 6) [2010] FCA 391; Commissioner for Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 233 at [21]; Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2015) 238 FCR 209; (2015) 333 ALR 713; [2015] FCA 1275 at [18]; Ip v Chiang [2019] NSWSC 1549 at [49]; District Council of Cooper Pedy v Naumovicy [2020] SASC 79 at [68]. It seems to me that the obligation of Ms Liao, as a recipient of a Court order, to understand that Court order extended beyond reading it to taking such steps to translate it as were necessary to read it, particularly where, as the evidence at the liability hearing showed, readily available and widely used translation software and applications allow texts to be translated from English to Chinese.
11. Ms Liao's evidence was that she was subsequently told by her husband that she was "no longer in trouble" or the freezing order was not extended and that she did not know the freezing order was still in effect at the time that the Queensland Property was put up for sale and sold. First, I do not accept that evidence, given my findings as to her credit. Second, the fact of the continued operation of the freezing order is recognised in the terms of the sale contract for the Queensland Property, and it seems to me inconceivable that the Chinese-speaking conveyancer acting on that sale would not have advised her of the continued effect of the freezing order as recognised by that contract. I do not accept Ms Liao's denial at the liability hearing that she had substantive contact with that conveyancing solicitor, given my findings as to her credit and the fact that it was contradicted by her evidence at the penalty hearing that she had told her "mortgage solicitor" of the transfer of funds to her daughter. Third, her husband's statement did not provide a sufficient basis to displace Ms Liao's knowledge of the freezing order without further inquiry on her part, which could at least have been made of the Chinese-speaking conveyancing solicitor acting in the sale of the Queensland Property.
12. Mr Rizk also submits that the Court should find on the balance of the probabilities that Ms Liao did not know or did not appreciate, at the time the Queensland Property was sold, that the sale was in breach of the freezing order. I do not accept that submission for the reasons noted above.
13. Mr Rizk accepts that the Court should find on the balance of probabilities that the Ms Liao was aware of and involved in the sale of the Queensland Property, but submits that her husband was the person primarily responsible for managing the sales process. I do not accept that submission or Ms Liao's evidence at the liability hearing that her husband conducted the sale process to her substantial exclusion. Communications in relation to the sale process were often in Chinese, and on their face took place between Ms Liao and her Chinese speaking solicitor, and Ms Liao's evidence is that Mr Liao did not write or speak Chinese. Ms Liao's attribution of these communications to her husband could not be accepted without postulating an elaborate conspiracy by which her husband translated his correspondence with the conveyancer from English (which he understood) to Chinese (which he did not) and then sent it from Ms Liao's electronic devices in her name in order to create the impression it was sent by her. There is no reason to think that occurred, where I do not accept Ms Liao's evidence making that assertion. It is also plain that Ms Liao, rather than her husband, later determined where to pay the funds realised from the sale of the Queensland Property in breach of the freezing order, and transferred the bulk of the funds to her daughter and her brother. It seems to me that Ms Liao's evidence seeking to minimise her involvement in the sale process at the liability hearing was untruthful, and there is no real prospect that she was merely mistaken as to that matter. That undermines her reliability as to all aspects of her evidence and the weight to be given to her apology to the Court.

Additional evidence at the penalty hearing

1. At the penalty hearing, the Plaintiffs relied on a further affidavit dated 5 April 2022 of Mr Junn, their solicitor. The documents exhibited to that affidavit (Ex P15) included records of financial transactions undertaken by Ms Liao in 2017, as to which she was cross-examined and to a substantial term deposit in her name held between late 2017 and March 2018. I do not draw an inference that, because Ms Liao had assets at that time, she now has any assets that she has not disclosed at the time of the hearing. I return to that matter below.
2. At the penalty hearing, Ms Liao read paragraphs 80-84 and 94-106 of her affidavit affirmed 3 March 2022, which were not previously read at the liability hearing. Ms Liao's evidence is there that she now understands she has made a "very serious mistake" and that the freezing order was breached, regardless of her "misguided understanding" and that she is "deeply remorseful" about that matter; her evidence is that she does not have any criminal history and has not previously been in "trouble" with the police or the courts; and that she is "truly ashamed and regretful" for her behaviour and is "willing to do everything [she] can to make up for [her] wrongdoings". That has not extended to obtaining repayment of the funds paid from the sale of the Queensland Property, in breach of the freezing order, to her family members, who she says will not or cannot now repay those amounts. I return to that matter below.
3. Ms Liao also there led evidence of her personal circumstances, and that she has been looking after her husband as his carer; that he repeatedly contacted her and asked her to return to Australia while she was in China on several occasions; and that he needs assistance for basic things in daily life, although she there acknowledges that a carer appointed by the government assisted him while she was in China, and she also refers to her husband's need for surgery at regular intervals and for painkillers. I give limited weight to Ms Liao's evidence that Mr Liao needs her daily care, both because of the evidence that she has regularly travelled to China for periods of between 10 days and 3 weeks in recent years (Ex P18), and because of her acknowledgement in cross-examination that the need for such care has been reduced by the fact that he now lives in a unit rather than a freestanding property and receives assistance from a carer provided by the government. Ms Liao's evidence is also that she currently receives Centrelink benefits, although her evidence is also that she owes about $56,000 to Centrelink. She also refers to long-term health conditions affecting her and to her reaction to having been held in custody in connection with this matter since her return to Australia about two months ago.
4. Ms Liao also tenders a handwritten letter in Chinese and a translation of that letter (Ex D2) which was admitted with a limiting order under s 136 of the Evidence Act 1995 (NSW) as an expression of her view and not as proof of any of the asserted facts, on which she relies as an expression of regret. That letter, in part, expresses contrition and in part seeks to shift responsibility for her conduct in breach of the freezing order to others, particularly her husband. She there states, inter alia, that: "I wish to take this opportunity to apologise to your Honour and to the Court. My negligence to the Court and the laws of Australia, my blindness to my obligations, my insensitive trust and reliance on my husband, and my failure to do my duty as an adult and an Australian citizen have led me to commit an unforgiveable crime today. I am very remorseful. I feel deep shame and pain for my actions and I deserve to be punished."
5. Ms Liao then sets out her history in China, the difficulties which arose in two earlier marriages and to the medical needs of her husband, and to her having felt "very depressed and miserable" and "trapped" in her life. She also refers to her own medical difficulties, and to their suggested origin in stress, and attributes her reliance on her husband "for all the paperwork" to that matter. She also refers to her concerns as to her position in prison and as to her husband's situation and claims that he is a "very poor man", a matter to which I return below. She concludes that: "Through my current solicitor, I have been made able to understand the current flow and progress of the case. I also fully understand and am aware of the seriousness of my actions. I know that there is no excuse for what I have done and it is inexcusable. My foolish and irresponsible behaviour has wasted the Court's valuable time, damaged the prestige of the judicial system and seriously affected the Plaintiff's legal rights and case. …"
6. I give no weight to any concern as to any "waste" of the Court's time, since it is the Court's role to determine disputes and it does not waste its time in doing so, or to any damage to any "prestige" of the judicial system. I do give weight to the adverse effect on the community of any inability to enforce freezing orders made by the Court, against the dissipation of assets to family members and offshore, and to the real adverse effect of Ms Liao's conduct on the Plaintiffs' rights, to which I return below.
7. Ms Liao was further cross-examined at the penalty hearing, on the basis that that cross-examination should not duplicate matters as to which she had been cross-examined at the liability hearing, and would be limited to matters relating to penalty. Additional matters emerged in that cross-examination, particularly in respect of steps which Ms Liao says she has taken to seek to retrieve the funds she had paid to family members, without success, which she had not addressed in her evidence-in-chief. Although I generally do not accept Ms Liao's evidence given at the liability hearing, which I have addressed above, her evidence as to these matters seems plausible.
8. Ms Liao's evidence was that her original intention was to give the money realised by the sale of the Queensland Property to her daughter, because she was concerned that her husband would otherwise use it for his business and she "talked to [her] mortgage lawyer at the time" and she told her lawyer about her intention to give all the money to her daughter (T17). That evidence was not consistent with Ms Liao's evidence at the liability hearing, by which she had largely denied that she communicated with lawyers in respect of the sale of the Queensland Property and claimed that her husband had done so to her exclusion.
9. Her evidence was that she later "slightly changed" her mind so as to transfer a substantial amount to her younger brother, to whom she was indebted and she "made that decision to transfer part of the fund to him" because she knew "he resides in Hong Kong [and] it's relatively convenient for him to transfer any of the funds back to me if I required that". That cross-examination made clear that Ms Liao's intention was that her brother would, at least in part, hold the funds for her, so that she could retrieve them if she wished to do so. Her evidence in cross-examination was also that she was considering buying another property in Australia, but she did not want to put that property under her name, to avoid her husband having access to half of her assets (T17). She accepted the proposition put to her in cross-examination that she did not trust her husband completely (T18), although that was not wholly consistent with her evidence at the liability hearing as to her reliance on her husband in respect of the transaction. I recognise that Ms Liao's suggestion that she wished to keep the funds realised on the sale of the property from her husband, and avoid any claim by him to her assets provides a possible explanation for aspects of the transaction. However, it does not exclude a similar intent so far as the Plaintiffs were concerned, and Ms Liao's willingness to remove her assets from her husband's reach suggests she would be no less willing to remove them from the Plaintiffs' reach.
10. Ms Liao's evidence was that she had now several times, in March and April this year, asked her brother to return the money paid to him from the proceeds of the sale of the Queensland Property but that he had not yet done so (T18-T19). Her evidence was that she did not have a record of amounts she says she had borrowed from her brother (T19). It seems to me that the extent to which Ms Liao's brother was her creditor is of little significance, because a payment made to a family member who is her creditor from monies realised in breach of a freezing order would be no less damaging to the Plaintiffs or the community and no less culpable than gifting the funds to that family member or placing them with the family member to hold on her behalf.
11. Ms Liao's evidence was also that she felt obliged to provide some support to her daughter when she sold the Queensland Property, and that she knew that her daughter would "return some of the money" back to her if she later needed it (T19). Her evidence is that she had also asked her daughter to return the money but she has not done so, although she had previously supported Ms Liao in other matters, including paying some legal fees in the proceedings and had also supported Ms Liao's mother (T20). There is a dispute as to the extent of that support, which also does not seem to be material, again because a payment of the funds realised by the breach of the freezing order to Ms Liao's daughter, as a creditor, is no less culpable than a payment to her in any other capacity. Ms Liao accepted that she transferred the amount of approximately $227,000 to her daughter because that was the entirety of the remaining funds, after the amount she transferred to her brother and to her husband, to an account to which she also had access (T20; and, as to Ms Liao's access to that account: Ex P17, 486). She denied that she had regard to whether that would have the result there would be no money left in her personal bank account; claimed that she "thought it was legal to sell my own property that way"; and denied that her transfer of the funds to her daughter was directed to keeping the gain from the sale of the Queensland Property in breach of the freezing order (T21).
12. Ms Liao was also cross-examined as to subsequent transactions in the account in her husband's name, to which she had access, to which $140,000 was transferred from the proceeds of the sale of the Queensland Property (T21). That amount was transferred into that account on 14 September 2021 and was substantially dissipated by December 2021, with expenditures in some large amounts including a payment of over $31,000 to a car dealer, over $8,500 at Apple stores, about $8,000 on contracts for differences and payments for legal fees and other lesser payments in respect of Tatts Online and ordinary living expenses (Ex P4, 231). Ms Liao maintained that her husband and she had lived an "impoverished life" in recent years and she expressed shock that the expenditures from that account were such as to deplete it from $139,000 to $16,000 in a little over two months (T24). I bear in mind that these expenditures may have been made by Ms Liao's husband, to whom she intended to transfer the funds, rather than by Ms Liao.
13. Ms Liao was also cross-examined as to the terms of the appointment of the property agent in respect of the sale of the Queensland Property, which provided for a retainer period of 3 days and did not authorise marketing expenses (Ex P4, 115 and 119). Ms Liao's evidence was that she had signed the agreement with that agent because she was asked to do so, without reading it, and she denied having any discussions with the agent (T11-12). Little turns on that where, as Mr Rizk pointed out, the agreement with the agent was executed at the same time as the contract for the sale of the Queensland Property, where a purchaser had apparently already been located. For completeness, Ms Liao was also cross-examined and documents were tendered (Ex P19) relating to the circumstances in which monies initially paid by the Third Plaintiff (PEEQ) were transferred to J W Liao Pty Ltd and then to a mortgage account of Ms Liao. Ms Liao initially denied knowledge of that matter, before she was shown a series of bank records recording the transaction. I give limited weight to that matter, where it could only be relevant to Ms Liao's credit.

Applicable principles as to penalty

1. I noted the source of the Court's jurisdiction to punish Ms Liao in contempt in the Earlier Judgment. Rule 40.6 of Uniform Civil Procedure Rules 2005 (NSW) relevantly provides: 40.6 Doing or abstaining from doing an act (1) This rule applies in the following circumstances: (c) if: (i) a judgment requires a person to abstain from doing an act, and (ii) the person disobeys the judgment, but does not apply to a judgment for the payment of money (including a judgment for the payment of money into court). (2) In circumstances to which this rule applies, a judgment may be enforced by one or more of the following means: (a) committal of the person bound by the judgment …
2. Part 55, rule 13 of the Supreme Court Rules 1970 (NSW) in turn provides that, where a contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both; and the Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security. That rule is declaratory of the Court's power of punishment and does not exhaust that power: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 ("Maniam") at 314; Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280 at [14]; Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd (2017) 94 NSWLR 777; [2017] NSWSC 118 at [30]. Proceedings for contempt in respect of a breach of an order or undertaking have the effect of vindicating the Court's authority as well as having a remedial or coercive effect, and the purposes of punishment for contempt include deterring the contemnor and others in the future from committing similar contempts and denunciation of the conduct: Witham v Holloway (1995) 183 CLR 525 at 533; [1995] HCA 3. In Maniam at 314, Kirby P (with whom Mahoney JA and Hope AJA concurred) observed that: "A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way: see Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 741."
3. In Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 106; [1986] HCA 46, the plurality in the High Court also identified the underlying reason for the existence and exercise of a power to punish for contempt as to uphold and protect the effective administration of justice.
4. In Australian Securities and Investments Commission v Michalik (2004) 52 ACSR 115; (2005) 23 ACLC 188 at [29], Palmer J identified several matters relevant to determining the penalty for civil contempt, including the seriousness of the contempt proved; whether the contemnor was aware of the consequences to himself or herself of what he or she proposed to do; the actual or potential consequences of the contempt on the proceedings in which the contempt was committed; the reason or motive for the contempt; whether the contemnor had received, or sought to receive, a benefit or gain from the contempt; whether there has been any expression of genuine contrition by the contemnor; the character and antecedents of the contemnor; what punishment was required to deter the contemnor and others of like mind from similar disobedience to the orders of the Court; and what punishment was required to express the Court's denunciation of the contempt. His Honour there recorded, in respect of relatively serious contempts, that the defendants were sentenced to 18 months imprisonment and ordered to pay substantial fines.
5. In NCR at [23]-[25], Campbell J noted that punishments for contempt of Court should take into account the same principles as are applicable to punishment for a crime and summarised (at [68]) the considerations to be taken into account on issues of punishment for contempt as follows: "A sentence for crime is arrived at as a result of an instinctive synthesis of multiple factors. It is, nonetheless, a judicial decision, because principles of law determine the factors that can properly be taken into account, and a judicial judgment can be made by an appellate court of whether the way in which those factors have been taken into account is within the range of legally permissible outcomes. The same applies to sentencing for contempt." His Honour there drew an analogy between a contempt committed by withdrawals from bank accounts for the contemnor's personal benefit and contrary to a freezing order, which had reduced the amount available to the plaintiff to meet its judgment by a substantial amount, and crimes involving offences against property without violence, and imposed penalties on the contemnor totalling 320 hours of community service.
6. In Paccar Financial Pty Ltd v Menzies [2015] NSWSC 1622, Rothman J noted the historical distinction between civil and criminal contempt, and that civil contempt involving a breach of a court order or undertaking and criminal contempt related to conduct that obstructed the administration of justice. His Honour noted (at [10]-[11]), with reference to authority, that a deliberate defiance of an order of the Court or undertaking given to the Court is considered to be criminal in nature and that that the purpose of imposing a punishment for such wilful disobedience to a Court order is to discipline the offender and vindicate the Court's authority and (at [12]) that a sentence should be imposed which is appropriate to the gravity of the offence that was committed and the offender's circumstances.
7. In The Prothonotary of Supreme Court of New South Wales v Battye [2017] NSWSC 48 ("Battye"), Schmidt J observed (at [41]) that: "The punishment which the Court may impose for a contempt of the kind here in question is unlimited. The punishment imposed on Mr Battye must be that considered to be necessary and appropriate in the exercise of the Court's inherent jurisdiction to safeguard the administration of justice and uphold the rule of law (see [Maniam] at 314). The sentence imposed must also be such as to denounce his contemptuous conduct, in an appropriately emphatic way." Her Honour there sentenced a contemnor who had acted to deprive a plaintiff of shares that were the subject of a charging order to 375 hours of community service, where that contempt was exacerbated by the fact that it was committed by a solicitor and officer of the Court, but there were also mitigating factors including the transfer of the shares to the person entitled to them, an early guilty plea and sincere contrition and regret.
8. In Dong v Song (No 5) [2019] ACTSC 273, a defendant sold a property in breach of an undertaking given by the Court and, where the Court found that there were mitigating circumstances, it required the defendant to enter an undertaking to comply with good behaviour obligations, including the performance of 125 hours of community service.
9. In NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 ("NHB") at [26]ff, Bell P summarised the applicable principles in a manner that I should set out in full, omitting citations of authority, and ordered that the first respondent be sentenced to a term of imprisonment of 3 months commencing from the date of his arrest in the relevant circumstances: "The underlying rationale of sentencing for both civil and criminal contempt is to protect the effective administration of justice … In Sun v He (No 2) [2020] NSWSC 1298 (Sun v He), the Chief Judge in Equity noted that an important purpose of sentencing for contempt is to make clear the Court's disapproval of such conduct, as well as to set a punishment that will further the object of general deterrence. In [Maniam], where there had been deliberate and contumacious refusals to comply with subpoenas on repeated occasions, at 313-315 Kirby P (as his Honour then was, and with whom Mahoney and Hope JJA agreed) outlined that: "Contempt law has been fashioned by the courts to protect the administration of justice. This is an activity, self-evidently of the greatest importance to society. It represents a vital part of the peaceful government of a community such as ours … … A conviction of contempt of court is a conviction of an offence, criminal in nature. Punishment of the convicted contemnor must therefore take into account the considerations normally applicable to the punishment of crime and apt to uphold the purpose of this jurisdiction, viz, the undisturbed and orderly administration of justice in the courts according to law. Thus, in determining the punishment which is apt to the circumstances which have led to a conviction of contempt, it is appropriate to bear in mind the purposes of punishing the contemnor; deterring the contemnor and others in the future from committing like contempts; and denouncing the conduct concerned in an approximately emphatic way … … The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt …. This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order … In cases where such a measure of wilfulness is established, the court may proceed to punish the convicted contemnor by the imposition of a custodial sentence or a fine or both. In such a case the elements necessary to establish wilfulness, carrying as they do the potential of penal consequences, must all be proved to the criminal standard ... The procedures of a criminal prosecution must be strictly observed…" In Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 at [46], [57]-[58] (Dowling), the Court of Appeal made clear that the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply with respect to proceedings for contempt in the civil jurisdiction of this Court. Sentencing a contemnor to a term of imprisonment is a penalty of last resort … While the provisions of the Crimes (Sentencing Procedure) Act may not apply, to adopt the language of McCallum JA in He v Sun at [68], "it is appropriate to proceed on the basis that, where a person is being dealt with for contempt in civil proceedings, as where a person is being sentenced for a criminal offence, the course of committing the contemnor to a correctional centre or sentencing them to a term of imprisonment should not be taken before considering whether there is any alternative course that is appropriate in the circumstances, having regard to the nature and object of the function in question". The reasons underpinning her Honour's conclusion on this point were that: "… imprisonment is a punishment of last resort ... While that is a proposition that arises most commonly in the discourse of the criminal law, there is no reason in principle why the same restraint should not apply to punishment of contempt and every reason why it should. That is a necessary incident of the common law's acceptance that the right to personal liberty is a fundamental common law right which 'cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes' … In [Australian Securities and Investments Commission v Matthews (2009) 71 ACSR 279; [2009] NSWSC 285 at [26]-[27]], Barrett J (as his Honour then was) set out the following factors generally to be taken into account in addressing the question of the penalty to be imposed for contempt of court: (1) the seriousness of the contempt proved; (2) the contemnor's culpability; (3) the reason or motive for the contempt; (4) whether the contemnor has received, or sought to receive, a benefit or gain from the contempt; (5) whether there has been any expression of genuine contrition by the contemnor; (6) the character and antecedents of the contemnor; (7) the contemnor's personal circumstances; (8) the need for deterrence of the contemnor and others of like mind; and (9) the need for denunciation of contemptuous conduct. His Honour's observations were referred to with approval by the Court of Appeal in Matthews v Australian Securities and Investments Commission [2009] NSWCA 155. In [Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111] at [102], the Full Court described the factors in Matthews as a "useful list of considerations that may properly be seen to have a part to play in a given case, although not exhaustive". It was observed that all of the factors were relevant to differing degrees in ascertaining the need for deterrence. The Full Court observed that the above factors were referred to "in more detail and somewhat more besides" in Australian Competition and Consumer Commission v Halkalia Pty Ltd (No 3) [2017] FCA 522 at [140]-[143] (Halkalia). The factors mentioned in Halkalia include: (1) the nature and circumstances of the contempt; (2) the effect of the contempt on the administration of justice; (3) the contemnor's financial means (when deciding the amount of any fine); (4) the relative seriousness of the contempt, which is determined by the extent to which the contemnor appreciated that a contempt was being committed; (5) whether the contemnor subjectively intended to disobey the order; (6) the importance of bringing home to the contemnor the seriousness of the contempt; (7) whether the contemnor has offered an explanation or apology for his or her conduct; (8) whether the contemnor has acknowledged that a contempt was committed; (9) whether the contemnor was aware of the personal consequences of what he or she proposed to do; (10) the actual or potential consequences of the contempt on the proceedings in which the contempt was committed; and (11) whether the contempt was committed in the context of a proceeding alleging crime or conduct seriously prejudicial to the public interest. As the Court observed in Kazal at [101]-[102], the list of potentially relevant factors is not exhaustive. At [103], the Full Court observed more generally that: The burden of the additional authority in this Court is to add weight to the factors listed in Matthews, rather than requiring any change by way of addition, subtraction or variation. The focus remains on the core themes of the objective seriousness of the conduct and, in particular, its effect on the administration of justice, subjective factors such as the contemnor's culpability, antecedents and attitude, including in particular any apology or other palpable sign of contrition, the capacity to pay a fine, and imprisonment being a last resort. Deterrence remains a dominant theme, both specific and general. Even denunciation and punishment can be seen as bolstering deterrence. That is especially so when the conduct entails contemplation and the opportunity to reflect and desist.""

Consideration of relevant factors as to penalty

1. I now turn to several of the matters relevant to penalty. I bear in mind that charges 1-4 deal with separate matters, but it is convenient to treat them together, as the parties did, in determining the question of penalty where they relate to the connected steps of the sale of the property and the transfers of funds to Ms Liao's brother, her daughter and the account in her husband's name, to which she also had access. I address the somewhat different position as to charge 5 below.
2. Turning first to the seriousness of the contempt, Mr Rizk accepts that breaches of freezing orders are serious matters notwithstanding the circumstances in which they occur. It seems to me that the contempt here is particularly serious and there is nothing exculpatory as to the circumstances in which it occurred, where I have not accepted Ms Liao's evidence in that respect. I have regard, in determining the penalty to be imposed on Ms Liao, to the nature and circumstances of the contempt, as set out in the Earlier Judgment and above. I have found that Ms Liao knew of the freezing order and took no reasonable steps to confirm it was discharged before proceeding with the sale of the Queensland Property and the transfer of funds to family members.
3. As to Ms Liao's culpability, Mr Junn puts the case against Ms Liao in strong terms, namely that: "From the steps engaged by [Ms Liao] to sell the Queensland [P]roperty to the steps engaged by her in disposing of the proceeds of sale, the contempts committed by [Ms Liao] were calculated, wilful and carried out in concert with her husband and other closest members of her family, in conscious defiance of the Court's orders, with the purpose of putting all of the proceeds of sale of the Queensland property beyond the consequences of the Court proceedings permanently - with not a single dollar to her own bank account, in order to escape the consequences of the proceedings which the Plaintiffs had commenced against her."
4. Mr Junn also submits that the contempts were committed methodically and with pre-planning. I accept that the sale of the Queensland Property and the transfer of its proceeds to Ms Liao's family members were deliberate actions, continued over a period of time, involving several implementation steps. I do not accept Mr Junn's further submission, so far as it assumes coordination between Ms Liao and her family members, or attributes to Ms Liao steps that her daughter subsequently took with money transferred to her. Mr Junn also submits that: "The Court should have no difficulty in concluding that [Ms Liao's] motive for the contempts was to escape the consequences to her of these proceedings and to dispose of as much as she could of almost all of her assets so as to frustrate any judgment which the Court might award in these proceedings." I accept that this was the necessary consequence of Ms Liao's actions, and there is no reason to think that Ms Liao would not have appreciated that necessary consequence, where I do not accept her evidence to the contrary.
5. Mr Rizk responds that the Court would not be satisfied, beyond reasonable doubt, that the breaches of the freezing order committed by Ms Liao were calculated, wilful and carried out in concert with her husband and other close members of her family, in conscious defiance of the Court's orders. In oral submissions, Mr Rizk submits that the Plaintiffs had contended that Ms Liao and her family members were party to a scheme to defeat the Court order, and that had not been established. I am satisfied beyond reasonable doubt that Ms Liao's own breach of the freezing order by the sale of the Queensland Property and the transfer of the proceeds to her family members was deliberate and intentional, and it is not necessary to reach a finding as to whether her family members did anything more than receive the proceeds of sale of that property arising from Ms Liao's breach of that order, where no claim for accessorial liability has been brought against them.
6. Mr Rizk rightly accepted that the sale of the Queensland Property in breach of the freezing order could have not occurred without the acquiescence and approval of Ms Liao and that she was ultimately responsible for signing off on the sale of the Property and the disposition of its proceeds. I have addressed those matters above. He submits that the Court should have regard to Ms Liao's evidence that the decision to sell and the distribution of the proceeds were influenced by her husband. I do not accept Ms Liao's evidence of that matter and, in any event, both the transfer of the large part of the sale proceeds to her family members instead of her husband and her evidence in cross-examination indicated that she, rather than her husband, determined where those proceeds would be paid.
7. I also bear in mind that Ms Liao's explanation in cross-examination at the penalty hearing of her attempts to retrieve the funds indicates that this is not a case where Ms Liao now chooses to leave the funds with her family members. However, Ms Liao exposed the funds to the risk that they might not be returned by her family members, in paying them out to her family members after she had sold the Queensland Property in breach of the freezing order. Her culpability should be assessed on the basis that she does not now choose to leave the funds with her family members, but that she exposed them to the risk that she could not recover them once they were paid out, and that risk has come home, unless her family members now change the positions which she says they now take.
8. As to the reason or motive for the contempt, Mr Rizk submits that the evidence before the Court indicates that the contempt was caused by a misunderstanding by Ms Liao as to the ongoing effect of the freezing order. Mr Rizk also submits that the Court should be satisfied that Ms Liao did not deliberately intend to breach the freezing order. I do not accept either submission, both of which depend on evidence of Ms Liao that I have not accepted.
9. As to whether Ms Liao has received, or sought to receive, a benefit or gain from the contempt, Mr Rizk submits that Ms Liao has received limited gain from the contempt. He submits, as to charge 1, that the sale of the Queensland Property "merely" converted an existing asset into cash, a course of action which would have been necessary for the Plaintiffs to undertake in any event were they to subsequently succeed in the substantive clam against Ms Liao and sought to recover damages through the sale of the Property. I do not accept that submission. This step had the consequence of altering property from a form in which it could not readily removed from the Plaintiffs' reach to a form in which it could be, and was, moved to family members and, to a substantial extent, removed from the jurisdiction.
10. As to charges 2-4, Mr Rizk submits that the proceeds of sale of the Queensland Property have been transferred into the names of "others" and where those funds are not transferred back into the name of Ms Liao, she will not have obtained any benefit or gain from their transfer, although members of have family will likely obtain a benefit. I do not accept that submission. I find that Ms Liao intended the necessary consequence of her actions, that her family members retain the funds she paid to them in breach of the freezing order, with the potential consequence that the proceedings against her were not pursued because there was now little prospect of recovery against her, and the funds were largely in the hands of her brother and her daughter who she trusts. Mr Rizk also acknowledges, rightly but with substantial understatement, that, particularly in respect of charge 2, "the distribution of the proceeds of sale, particularly overseas, may create a greater degree of difficulty for the [P]laintiffs in recovering those proceeds in the event they are successful in the substantive claim against [Ms Liao] and seek to recover those proceeds in satisfaction of a judgment debt."
11. Mr Rizk submits that, as to charge 5, Ms Liao has not received a benefit or gain from the payment of $25,000 to the real estate agents responsible for the sale of the Queensland Property. I also do not accept that submission, since that payment discharged a liability which she incurred in the course of putting the value of the Queensland Property beyond the Plaintiffs' reach.
12. Mr Rizk submits that Ms Liao has set out her contrition in paragraphs 79-84 of her affidavit affirmed 3 March 2022 to which I referred above and he also submits that: "The Court should accept those expressions as genuine and sincere. [Ms Liao] has acknowledged her wrongdoing and has not sought to avoid facing the consequences of her actions. This is demonstrated by her not contesting liability on these charges."
13. On the other hand, Mr Junn contends that there is an inconsistency between Ms Liao's claim to contrition and her "making no credible effort to right the … wrongs committed by her by returning any of the proceeds of sale back to the control of the Court". That submission must now be qualified to recognise Liao's evidence in cross-examination at the penalty hearing that she has sought the return of the money but neither her brother or her daughter can or will now repay it, so that it has been lost by the risk to which she exposed it. Mr Junn also submits that Ms Liao's maintaining the position that she did not know that there was a freezing order at the time of sale of the property, and did not give instructions to the conveyancing solicitors, after her guilty plea are inconsistent with her claim to contrition. I do not accept Ms Liao's evidence in that regard, and the absence of a frank account of her involvement in the sale process seems to me to be inconsistent with a claim to genuine contribution. Mr Junn also identifies further such inconsistencies in Ms Liao's failure to comply with Court orders in respect of the disclosure of information made after the sale of the property was discovered, and the fact that the Plaintiffs have had to issue multiple subpoenas in order to trace the proceeds to Ms Liao's family members.
14. It seems to me that Ms Liao's claimed contrition is also of lesser weight where it will provide no compensation to the Plaintiffs as the wronged party. Her apology, like that offered in NCR at [79], is directed to the Court and does not involve any acknowledgement of the prejudice to which Ms Liao's conduct has exposed the Plaintiffs, including the risk that judgment in the proceedings will be fruitless and their costs will now be wasted.
15. As to Ms Liao's character and antecedents, Mr Rizk submits that she does not have any prior convictions, whether for contempt or otherwise, and the Court should accept that Ms Liao is otherwise of good character. I proceed on that basis. Mr Rizk submits that Ms Liao's personal circumstances are set out in paragraphs 94-106 of her affidavit dated 3 March 2022 and her letter of apology to which I referred above. I have regard to those matters, subject to the findings I have made as Ms Liao's credit and fact that less weight is to be given to her "apology" where an apology to the Court does nothing to address the real loss the Plaintiffs have suffered from her conduct. I have in mind the difficulty of her personal circumstances and her husband's health issues. While Ms Liao's financial means are relevant to penalty, she has divested herself of any assets that might have allowed her to pay a fine, if it were otherwise appropriate.
16. Mr Rizk accepts that general and specific deterrence of contempt is of considerable importance in the Court's determination of an appropriate penalty. He submits that, having regard to the circumstances in which this contempt has occurred, the Court can be satisfied that the circumstances giving rise to the offence mean that Ms Liao is highly unlikely to ever find herself in a similar situation and she is "highly unlikely to ever engage in such conduct again". That submission is correct, but does not assist Ms Liao, where the fact that she has disposed of funds realised from the sale of her only substantial asset to family members in a manner that would defeat a judgment means that it is now unlikely that she will have the opportunity do so again. Mr Rizk submits that the need for specific deterrence is low and "the circumstances of these offences are quite unique and are unlikely to be similar to the circumstances of most individuals who are subject to freezing orders." I also do not accept the premise of that submission, where many parties to proceedings in this Court do not have English as their first language and may benefit from removing assets from the other party to the proceedings' reach to limit the risk of an adverse judgment being effectively enforced. Ms Rizk acknowledges that the contemptuous conduct is serious and needs to be appropriately denounced by the Court.
17. It seems to me that Ms Liao's contempt has had an adverse effect on the administration of justice, to the point of raising the prospect that others may disregard freezing orders, transfer their only assets to family members and seeks to immunise themselves against judgment with impunity. Ms Liao's conduct has the capacity to undermine the utility of freeing orders and, if parties were no longer prepared to comply with such orders, significantly to undermine the administration of justice. In Pisano v Dandris (No 4) [2015] NSWSC 1689 ("Pisano") at [24], a case concerning a freezing order, McDougall J noted that an important aspect of the penalty for contempt is: "the need to vindicate the authority of the Court, to deter others from taking the view that Court orders may be disregarded without any real sanction, and to impose upon [the contemnor] some real punishment for [its] knowing and unjustifiable breach of the Court's orders." His Honour also noted that the value of such orders: "will be very severely diminished if there exists a perception, particularly in the commercial world, that people may disobey them without sanction."
18. Mr Rizk submits that Ms Liao should be entitled to a discount for not contesting liability on charges 1-5, akin to entering a plea of guilty. He points out that the "guilty plea" was notified to the Plaintiffs on 2 March 2022 and notified to the Court on 8 March 2022, the first time after 21 February 2022 that the matter was before the Court. He submits that the guilty plea was made in circumstances that service of the Plaintiffs' notice of motion dated 14 December 2021 was only effected on 14 February 2022, the Amended Statement of Charge was served on 16 February 2022, Ms Liao obtained legal representation in respect of the contempt charges on or about 18 February 2022, and her ability to communicate with her legal representatives was limited where she was in custody. He submits that, in those circumstances, the guilty plea was made in a prompt and timely manner, and Ms Liao "should be entitled to a discount of 20%." I accept this matter is relevant. Mr Rizk submits and I also accept that, in determining the appropriate penalty, the Court should have regard to the fact that Ms Liao has been in custody since about 13 February 2022 and, at the commencement of the hearing on penalty, had already served over two months.
19. For completeness, in closing oral submissions, Mr Junn addressed several matters which I do not consider it necessary to determine in order to determine this application, including the extent to which Ms Liao operated the bank account of J W Liao Pty Ltd. Mr Junn also submitted that there was no evidence of steps taken by Ms Liao to seek to retrieve the funds that had been transferred to family members after the sale of the Queensland Property. That was the case until Mr Junn cross-examined Ms Liao at the penalty hearing as to those matters and she gave the account to which I have referred above. Mr Junn submitted that Ms Liao is likely to have substantial amounts of monies and other financial resources. I do not reach that conclusion, where a substantial amount of time has passed since the transactions in earlier years as to which she was cross-examined, and the amount of $140,000 from the sale of the Queensland Property, which was transferred to the account to which she and her husband has access, was dissipated within a relatively short period.

The penalty to be imposed

1. Mr Rizk submits and I accept that, in determining the appropriate penalty to be imposed, totality principles apply: Al Muderis v Duncan (No 5) [2019] NSWSC 461 at [30]; R v T [2022] WASCA 34 ("R v T") at [78]-[86]. He submits that, as to charges 1-4, Ms Liao should be sentenced to a single short term of imprisonment which should be wholly suspended, subject to any conditions the Court considers appropriate or, alternatively, any separate sentences imposed by the Court should be made concurrent. Mr Rizk also submits that, as to charge 5, no additional penalty should be imposed as the payment to the real estate agents was in accordance with a contractual liability that was consequential of the breach of charge 1. I accept that submission.
2. I have had regard to Zammit J's review of the sentences imposed for contempt, including by breach of a court order restricting dealings with money and other property, in Moira Shire Council v Sidebottom Group Pty Ltd [2018] VSC 556 and the helpful table that is Annexure A to that judgment. I have also had regard to the review of applicable principles in R v T, which addressed a larger range of conduct in contravention of court orders over an extended period, reflected in a sentence of imprisonment for 2 years 3 months, which included the transfer of funds obtained from the sale of a property in breach of such orders to family members, and to the Court's review in that judgment of the sentences in other cases. Some of those other cases involved the sale of property or diversions of funds in breach of Court orders and the transfer of funds to family members: for example, Rutherford v Marshal of the Family Court of Australia (1999) 152 FLR 299; [1999] FamCA 1299; DAI v DAA (2005) 191 FLR 360; [2005] FamCA 88. I recognise that, as the Court observed in R v T at [87]-[88], it is it is relevant to have regard to the range of sentences customarily imposed in similar cases, but: "In undertaking that comparison, it is important to bear in mind that the range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles that sentences imposed in comparable cases reveal and reflect." I have also had regard to the wider review of matters relating to penalty in Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 and in NHB, to which I referred above.
3. I have also had regard to the matters specified in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), by way of analogy, which provides that the Court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Having regard to the matters to which I have referred above and the alternatives to imprisonment, I am satisfied that no penalty other than imprisonment is appropriate, where the continuing adverse effect of the contempt on the Plaintiffs and the community will continue in the foreseeable future, absent any payment of funds by Ms Liao's family members into Court. I am also not persuaded that the sentence of imprisonment should be suspended. It seems to me that anything less than a substantial sentence of imprisonment runs a real risk that others will consider that the preservation of their assets by breach of a freezing order, or their transfer to family members in a manner that preserves them against any judgment, well warrants paying the price of a suspended sentence or a period of community service.
4. It seems to me that the sentence imposed on Ms Liao must have an adequate punitive element, particularly where the wrong to the Plaintiffs and the community will continue where the funds are not repaid, and the punishment required to deter Ms Liao and others of like mind from similar disobedience to the orders of the Court must be at least sufficient that a person, in a similar situation, would not calculate that the benefits of causing non-compliance with the freezing order, combined with the possibility that the other party may not take further action in respect of it against a now impecunious defendant, outweigh the risks of the penalty imposed by the Court if a contempt is found. Taking into account the principles that are applicable to punishment for a crime, the need to reach a synthesis of the multiple factors to which I have referred above, and the analogy with crimes involving offences against property without violence, as NCR contemplates, and the factors reviewed in NHB, I find that Ms Liao should be imprisoned for a term of 6 months in respect of each of charges 1-4, to be served concurrently, less time already served from the date of her arrest. No additional penalty should be imposed in respect of charge 5. It seems to me that any lesser sentence would not sufficiently meet the need to deter others from similar conduct. I also bear in mind that Ms Liao may relist the matter, and I will reserve liberty for her to do so, if she, with the assistance of family members to whom she transferred funds, ultimately takes any substantial steps toward purging her contempt.

Costs

1. Mr Rizk submits that costs should follow the event and that the Plaintiffs should be entitled on the ordinary basis to their costs for bringing the contempt motion in respect of charges 1-5. Although there are occasions on which the costs of a contempt application have been awarded on an indemnity basis, an order for costs on the ordinary basis was made in NHB at [97]-[102], where Bell P distinguished between the nature of the conduct constituting the contempt and the conduct of the proceedings. I proceed on the same basis. Ms Liao should pay the costs of this penalty hearing on an ordinary basis, as agreed or as assessed, although there may be little prospect here that she will in fact be able to meet a costs order where she has disposed of her assets to family members.
2. Mr Rizk submits that Ms Liao should be entitled to her costs in respect of the first contested hearing on liability for charges 6-9. In respect of that hearing, he submits that the legal representatives for Ms Liao first contacted the Plaintiffs' legal representatives to discuss the possibility of charges 1-5 not being contested and charges 6-9 being withdrawn on 24 February 2022; on 28 February 2022, the Plaintiffs' legal representatives indicated that the Plaintiffs would not be prepared to withdraw charges 6-9; on 2 March 2022, the Plaintiffs' legal representatives were notified that Ms Liao would not be contesting liability on charges 1-5; and, in light of the Plaintiffs' being given advance notice of the Ms Liao's intention not to contest liability on charges 1-5, the hearing on 10, 23 and 24 March 2022 was conducted solely in respect of charges 6-9. I do not accept that submission, where the majority of the evidence led at that hearing was directed to the circumstances relevant to all charges, and would have had to be led at this hearing as to penalty as to charges 1-5 had it not been led at the liability hearing. There should be no order as to the costs of the first hearing with the intent that each party bear their own costs of that hearing.

Orders

1. I direct the parties to bring in agreed short minutes to give effect to this judgment within 7 days.

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