Kith v SLH Industries Pty Ltd & Heng [2025] VCC 432

(a) 3 December 2021 (Second Orders);

(b) 9 May 2022 (Third Orders);

(c) 24 January 2023 (Fourth Orders);

(d) 16 August 2023 (Fifth Orders); and

(e) 27 October 2023 (Sixth Orders).

1. These orders for production were punctuated with the Second and Third Examinations.
2. By the conclusion of this lengthy and drawn out process, the plaintiff concluded that Heng had still not disclosed all of the documents that he had been ordered to do and that, as a consequence, he had committed several contempts of the various Court orders that had been made.
3. The plaintiff therefore issued a summons on 30 September 2024 charging that Heng had committed a number of acts of contempt of court and seeking that he be punished by committal.
4. She relied on an affidavit of her solicitor, Owen Pitt, affirmed 20 September 2024 which put into evidence a raft of material including extracts of some of the documents that Heng had produced and the transcripts of Heng's examinations. Mr Castelan (Counsel for the plaintiff) helpfully produced a table of the conduct alleged to have constituted each of the contempts.
5. Heng denied that he had committed any of the contempts charged. He relied on two affidavits affirmed on 8 December 2023 and 15 November 2024 in support of his defence.
6. He was cross-examined by Mr Castelan on these affidavits.
7. Both Mr Castelan and Ms Murphy(Counsel for Heng) filed written outlines of opening submissions dated 21 November 2024.
8. At the commencement of the hearing Mr Castelan opened the case against Heng. During the course of that opening I made comment on what I considered to be problems with some of the conduct charged against Heng. At the conclusion of that opening I invited Ms Murphy to provide an oral opening during the course of which she made certain further criticisms of the charges against her client.
9. At the conclusion of openings I invited Mr Castelan to amend his client's summons to accord with the matters discussed during openings. He produced an Amended Summons which withdrew 25 of the 44 charges initially laid. Leave to file the Amended Summons was formally opposed by Ms Murphy. Ms Murphy confirmed that her client suffered no prejudice if the amended summons was filed and I therefore gave leave for the hearing to proceed on the basis of these amended charges.
10. By the conclusion of the hearing, a further amended Table of Contempts dated 7 February 2025 was produced by Mr Castelan in which a further charge was not pressed leaving a total of 17 charges pursued. A copy of that Table is Annexed to these reasons. Final submissions were made by Mr Castelan and Ms Murphy by reference to this Table.
11. It should be appreciated that certain categories of documents, most particularly bank statements, were ordered to be produced on multiple occasions. For example, Heng was ordered to produce bank statements in each of the First to Sixth Orders. It is common ground that he did not produce bank statements for 2 accounts in particular (NAB 053 and NAB 446) until after the contempt application was commenced. Therefore, he is charged with a contempt on each occasion that he failed to produce the statements for each account in response to each order that he produce them.

The documents alleged not to have been produced and summary of conclusions

1. The particularised charges all relate to Heng's alleged failure to have produced certain documents. It is convenient now to outline what those documents are.
2. There are 7 categories of documents that the plaintiff says were not produced. I will describe those categories below. For Categories E, F and G, I am able shortly to dispense with the charges finding that they have not been proven to the requisite standard.
3. The remaining categories will be the subject of further detailed consideration below.
4. The table below sets out each of the contempt charge along with my corresponding decision as to whether the charge is made out.

Item Number/s in Plaintiff's Table of Contempts Annexed to these Reasons

Category E: Guarantee and Loan Agreements in Respect of Purchase of Mount Waverly Property

Category F: Utilities and Rates Notices in Respect of 3 Properties

Category G: Documents Relating to an $740,000 Receipt by Heng on 29 May 2018

1. Statements on NAB 053 account (Items 1, 5, 8, 10, 11,14, 17, 30, 42 and 43 of the Table Annexed)

1. First, Bank Statements for a National Australia Bank account held in the name of Sengly Heng No.11-365-1053 (NAB 053) for the period 11 December 2017 to 30 August 2023.
2. It is common ground that Heng first produced 82 pages of these statements to the plaintiff by email from his solicitor on 15 November 2024. It should be noted that this is after the contempt summons was issued on 30 September 2024 and after the affidavit of Pitt affirmed 20 September 2024 was served.
3. The charges allege that Heng's failure to have produced these documents was in breach of each of the First to the Sixth Orders. Indeed, the failure to produce these statements are alleged to be a breach of more than one of the orders for production in some of the sets of orders.
4. The failure to produce these documents was given the greatest attention during the hearing. This is not surprising because of the nature of that account and the conduct of it. The account was in Heng's personal name. It was agreed that during the period commencing on the date he was first ordered to produce them on 30 November 2021 to the closure of that account in August 2023, the account recorded total credits of $1,287,592.91 and total debits of $1,315,104.47. In other words, during the period that he was supposed to have produced these statements but had not, Heng was transacting heavily on the account for his own purposes. Mr Castelan submitted[1] that a search on those statements for the following words returned the following results:

(a) The word "Online" returned 696 results "indicating 696 online internet transactions";

(b) The words "Internet Transfer" returned 200 results; and

(c) The Words "Linked Acc Trns", short for Linked Account Transaction, returned 781 results.

1. I will deal with this category in further detail below, however at this point note that in defence of this charge, Heng says that he attended an NAB branch on multiple occasions to request statements for his personal accounts. He says that whatever statements were provided to him by the NAB he provided to his solicitors for production in response to the orders. He says that if the statements for this account were not produced this was a mistake made by the NAB or himself. But he says that the failure to produce them was not intentional.
2. It is noteworthy that on 13 December 2021, Heng did produce statements for an NAB Classic Banking Account 32-170-4965 (NAB 965) in Heng's personal name for the period 2 June 2020 - 11 December 2021. The production of these statements on that date, and the form of them, assumes some significance for the way in which the charges are pressed.
   1. Statements on NAB 446 account (Items 14 and 17 of the Table Annexed)
3. Secondly, bank statements for a National Australia Bank account held in the name of SLH Industries Investments Pty Ltd No.91-268-2446 (NAB 446) for the period 1 July 2018 to 1 December 2021.
4. It is common ground that Heng first produced 210 pages of these statements to the plaintiff by email from his solicitor on 15 November 2024. Again, it should be noted that this is after the contempt summons was issued on 30 September 2024 and after the affidavit of Pitt affirmed 20 September 2024 was served.
5. It should also be noted that as this account is in the name of SLH Industries Investments Pty Ltd, and not in Heng's or the first defendant's names, it is not charged that this was a breach of the First Order which only required production of statements for bank accounts "of the Judgment Debtor", defined as Heng.
6. It is alleged that the failure to have produced those statements was a breach of the Second and Third Orders which required production of all statements for each bank account in the name of or controlled by Heng.
7. I will deal this category of documents in further detail below, however note that in defence of these charges Ms Murphy disputed that the evidence established beyond reasonable doubt that Heng "controlled" that account. She also submitted that the Court should not be satisfied beyond reasonable doubt that Heng understood that he was required to produce statements for a bank account in the name of a trustee company of which he was the sole director.
   1. Marital asset settlement documents (Items 12, 15 and 36 of the Table Annexed)
8. Thirdly, documents evidencing the terms of settlement between Heng and his former wife, Raksmely Seng So, in relation to their marital assets.
9. Documents answering this description were never produced.
10. It is alleged that Heng's failure to have produced these documents was a breach of the Second, Third and Fourth Orders.
11. I will deal the way the charges are put, the evidence in support of them, and with Heng's explanation for not having produced these documents further below.
12. In summary Heng says that these documents were not in his actual possession, that he made efforts to obtain them but was unable to do so.
    1. Lease agreements (Item 23 of the Table Annexed)
13. Fourthly, a lease or rental agreement for Jayne Court, Dandenong South 3175 and/or Farquharson Street Mount Waverley VIC 3149.
14. It is common ground that these documents were not produced until 15 November 2024.
15. It is alleged that Heng's failure to have produced these documents was a breach of the Fourth Order.
16. Mr Castelan made only faint and summary closing submissions in respect of these documents.
17. Heng's explanation for not producing these documents earlier was that he had searched his emails for these documents at about the time he was ordered to produce them and not found them, but on further searching more recently he was able to locate them.
18. Although I find this explanation surprising, it is not entirely implausible. On that basis I am not prepared to find beyond reasonable doubt that Heng's failure to have produced the document was wilful and deliberate such as to constitute a contempt of court.
    1. Guarantee and loan agreements in respect of purchase of Mount Waverly property (Item 24 of the Table Annexed)
19. Fifthly, guarantees provided by Heng in respect of the purchase of a property located at Farquharson Street Mount Waverly VIC 3149 by SSA Property Investments Pty Ltd, including the loan agreements or guarantees signed by Heng in respect of Mortgage AV229081S and Mortgage AV229080U.
20. It is common ground that a loan agreement and guarantee answering the above description was not produced by Heng until 15 November 2024.
21. It is alleged that Heng's failure to have produced these documents prior to that date was a breach of the Fourth Order.
22. Heng's explanation for not having produced these documents earlier was that he did not have those documents in his possession at the time the order was made and that he had asked his former mortgage broker for them. They were not provided to him. He said that after again asking his broker in October 2024, those documents were provided to him and he produced them. Heng produced a WhatsApp message exchange between himself and his former mortgage broker in October or November 2024 in which he asked for those documents.
23. Mr Castelan formally put to Heng that his explanations should not be accepted but made no strong attack in respect of this category.
24. Having regard to Heng's evidence, and particularly the WhatsApp message which supports Heng's evidence of having previously sought but failed to receive the document, I regard Heng's explanations to be plausible. Under those circumstances I am not satisfied beyond reasonable doubt that Heng's failure to have produced the documents was wilful and deliberate such as to constitute a contempt of court.
    1. Utilities and rates notices in respect of 3 properties (Item 31 of the Table Annexed)
25. Sixthly, most recent municipal rate, gas and electricity bills as at 24 January 2023 directed to Heng, or a property at which Heng resides, including in respect of the properties located at:

(a) Cypress Court, Noble Park, VIC 3174;

(b) Brolen Way, Cecil Park, NSW 2178; and

(c) Farquharson Street, Mount Waverley, VIC 3149.

1. It is common ground that Heng produced documents answering this description on 15 November 2024 in respect of the property at Brolen Way, Cecil Park, NSW, however, no other documents answering that description were produced.
2. It is alleged that Heng's failure to have produced these documents prior to that date, or otherwise at all, was a breach of the Fourth Order.
3. Heng explained his failure to have produced those documents on the basis that he did not have those documents in his possession. He said that his former wife lives in the Noble Park property and his sister lives in the Mount Waverley property. If that is correct, and it was not put to Heng that this was not so, it seems likely that utilities and rates notices would have been forwarded to those addresses rather than to Heng at some other address.
4. As to the Cecil Park property which was Heng's own home, some documents were produced, but Heng said that he had no others.
5. At this point I can say that I accept Heng's explanation for the failure to have produced documents in respect of the properties in which his sister and former wife resided. It would be surprising if he had received those documents. In the usual course utilities bills would be directed to the address to which the utilities were connected. This is also the case for municipal rates notices - in the usual course they would be directed to the subject address. On that basis I consider Heng's explanation for his non-production of these documents to be plausible.
6. Even though the Cecil Park property was Heng's own residence, I accept it as plausible that he might not have retained these documents. They are not business or tax records that he was required to retain. It is entirely plausible that after having paid the notices, he might not have retained them or kept them in a way that they were easily found.
7. Under those circumstances I am not satisfied beyond reasonable doubt that Heng's failure to have produced those documents was wilful and deliberate such as to constitute a contempt of court.
   1. Documents relating to an $830,000.00 receipt by Heng on 29 May 2018 (Item 40 of the Table Annexed)
8. Seventhly, documents related to a transaction recorded in Westpac Choice Bank Account 732 243, Statement No. 43, which evidences the receipt by Heng of $830,000.00 on 29 May 2018, with the transaction description "Transfer Deposit at Knox Shopping Centre VIC", including:

(a) a copy of the loan agreement between Heng and Leang as stamped by police;

(b) documents evidencing all repayments Heng has made to Leang in respect of the loan agreement, including a copy of bank account statements with the relevant transactions identified.

1. Mr Heng produced a document on 15 November 2024 in purported compliance with this category of documents. The document produced was an undated handwritten Statutory Declaration apparently made by Heng and signed before an officer of Victoria Police (Stat Dec). No other documents were produced in compliance with this category.
2. It is alleged that Heng's failure to have produced the Stat Dec prior to that date was a breach of the Fourth Order.
3. Heng's evidence at [153] - [163] of his affidavit is somewhat confused. However he deposed that apart from the Stat Dec he had no further documents to produce in this category.
4. The Stat Dec is a surprisingly short, handwritten, lay person's drafted document to evidence a loan of this size. It is undated. It is at best a shorthand unilateral declaration by Mr Heng that he had borrowed $900,000 from Ms Sok Chong and that "according to this agreement I will pay back to her as soon as possible when she needs that back."
5. Heng's explanation for having failed to produce the document earlier than he did was that he did not have a copy in his possession, that he had asked for it many times but it had not been provided to him.
6. Heng produced a WhatsApp message exchange with Bong Leang dated 7 November 2024 which attached a screenshot of the document. He then produced the document to the plaintiff's solicitor.
7. Although it is surprising that Heng would not have some documentation relating to a loan of this size, the WhatsApp message that he has produced supports his explanation that he did not and that he needed to obtain that document from another person.
8. Under those circumstances I am not satisfied beyond reasonable doubt that Heng's failure to have produced the documents was wilful and deliberate such as to constitute a contempt of court.

1. The law on civil contempt charges is well settled and was recently stated by Harris J in Rose v Cwalina (Contempt).[2] I adopt this statement of the law.

The moving party must prove beyond a reasonable doubt the following elements of civil contempt for a breach of a court order:[3]

(a) the order was made by the Court;

(b) the terms of the order are clear, unambiguous and capable of compliance;

(c) the order was served on the alleged contemnor or excused in the circumstances, or service dispensed with pursuant to the Rules of Court;

(d) the alleged contemnor has knowledge of the terms of the order; and

(e) the alleged contemnor has breached the terms of the order.

For charges to be established it is necessary to establish that the breach of the order was wilful. It may suffice for that purpose that the act did not involve a direct intention to disobey an order, but the order was breached through carelessness or neglect.[4] As observed by the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd:[5]

[L]ying behind punishment for a contempt which involves wilful disobedience to a court order is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. ... It follows that a deliberate commission or omission which is in breach of an injunctive order or an undertaking will constitute such wilful disobedience unless it be casual, accidental or unintentional.

1. Given the criminal nature of the offence of contempt of court, the charge against the alleged contemnor must be stated with clarity and specificity.[6] This is in order that they may know exactly what they are charged with and are able to mount a defence to the charge.[7]
2. The requirement of particularity will be met as long it answers the question "does the alleged contemnor have enough information to meet the charge."[8]
3. Where the alleged contempt constitutes the failure to produce documents in answer to a subpoena or other court ordered production, mere non-production is not sufficient of itself to constitute contempt. It must also be established that, at the date on which the documents were required to be produced, the alleged contemnor had documents that met the description of the documents called for by the subpoena or other order to produce.[9]
4. In this context to have "had the document" means that there were, at the relevant time, in the defendant's possession, custody or power documents that fell within the terms of the order.[10]

1. In her written opening submissions, Ms Murphy accepted that elements (a) that the relevant orders were made by the Court, (c) that the orders were served on him and (d) that he had knowledge of the terms of the order, were each satisfied.
2. She did not accept that elements (b) and (e) had been made out. She submitted that some of the charges were infected with ambiguity and that otherwise the plaintiff had not established non-compliance with the relevant orders in the manner alleged.
3. I will now consider each of the remaining categories in turn.

1. As discussed above, these bank statements relate to one of Heng's personal accounts.
2. Heng's evidence explaining why he did not produce those bank statements until 15 November 2024 was summarised by the plaintiff at paragraph 19 of the PCS as follows:

(a) he repeatedly gave evidence that he attended the NAB branch before 13 December 2021, asked for all of his personal bank statements and everything that related to him, which he received and sent to his lawyers;

(b) he stated that between November 2021 and 26 November 2024 he had attended at the NAB Branch between five to ten times and on each occasion he had asked for the bank statements for all of his personal bank accounts;

(c) he stated that it was a mistake by the bank or from himself and he had forwarded all of the statements that he received from the bank to his lawyer;

(d) he stated that he only recently found out about having failed to produce the NAB 053 account statements and that it was a mistake in the past;

(e) when asked why he did not tell the court about the NAB 053 account when had $288,000 in it, he replied that he was not asked by the court how much money he had in it and if he had been asked, he would have told them."

1. Paragraph 13 of Ms Murphy's Written Closing Submissions[11] generally accepted this summary and stated in her own way the evidence as follows:

The second defendant's evidence is summarised at PS [19]. In short, the second defendant accepted that he ought to have produced the NAB Classic 053 Account and did not do so. His evidence was essentially that:

(a) he attended the NAB branch to request bank statements;

(b) the failure to produce the NAB Classic 053 account was a mistake;

(c) he had had numerous bank accounts at the time including another NAB account which he had produced statements for;

(d) he believed the account he had not produced belonged to SLH Industries Investments Pty Ltd, which he understood did not need to be produced;

(e) he relied significantly on others, particularly his assistant at the time Karen Rookes, to understand and comply with his discovery obligations.

1. These summaries do not differ greatly and generally accord with the evidence given. It is highly significant that the effect of Heng's evidence was that all statements that he did produce were obtained as a consequence of him having attended at an NAB Branch and asked for bank statements to be provided to him.
2. Mr Castelan submits that I should, beyond a reasonable doubt, reject Heng's explanations for the non-production as lacking credibility. I agree.
3. He submits that Mr Heng was a competent and experienced businessman who ran an asbestos removal business employing 100 people and turning over $30 million per year. This should lead the court to conclude that he would know what bank accounts he had and therefore that the non-production would not have been mistaken.
4. Ms Murphy submits that Mr Heng's business experience does not exclude the possibility that he might have been mistaken as to what statements had been obtained from the NAB branches and produced. She also submitted that there are explanations for the non-production that are inconsistent with deliberate non-production. She instanced the possibility that the NAB made an error in failing to produce what had been asked for, or that Heng failed to communicate clearly what he was asking for, or that Heng made a "simple error". I do not understand what is meant by this last matter.
5. There is a difficulty with all of Ms Murphy's submissions.
6. Heng's evidence was that the statements that he did produce were obtained as a consequence of his visits to, and requests from, the NAB branches. But this evidence is contradicted by his production on 13 December 2021 of statements for the NAB 965 account. This account was also in his personal name. The statements that were produced were self-evidently printed from an online banking download made on 13 December 2021 at 10.33am. This was the date that he was required to produce documents under the Second Orders. This was also the date that he actually produced them. When it was pointed out to him in cross-examination that this document was a printed download from NAB's online banking portal made on 13 December 2021 (and thus not likely produced by the NAB at a branch), he said that he himself had been involved in getting it printed out. This directly contradicts his primary excuse for not having produced the bank statements prior to November 2024.
7. He also accepted that he was able to, and did, operate his NAB Online Banking by himself. He accepted that each time he logged on to the NAB Online Banking portal using his own password he would see a listing of the NAB personal accounts that he held. This means that each time that he logged on to his online NAB banking portal he would have been reminded of the NAB 053 account. I also note the matters in paragraph 25 above, that Heng was heavily transacting on this account throughout the time that he was not complying with the orders for production.
8. Under those circumstances I can only conclude that by 13 December 2021, and at all times thereafter, Heng was well aware of this account and that he was able to download statements for the NAB 053 account but elected not to do so.
9. This evidence also leads me to reject his evidence that the cause of the non-production of the NAB 053 account statements was a "mistake" made by the NAB or a miscommunication with NAB as to what he was asking for or that he "simply made an error". This evidence only runs to the extent that he was somehow reliant on NAB to provide him with the bank statements. As it is evident that he knew that he could get them by downloading them from his online banking portal, he cannot lay the blame for non-production as a "mistake" at the feet of NAB or anyone else.
10. Ms Murphy submitted that Heng was reliant on his PA, Ms Karen Rooke, and that it could not be excluded that it was her error that led to the non-production of the NAB 053 statements. Mr Heng did at times give evidence that he was reliant on Ms Rooke for things such as typing and accessing his NAB business accounts. However, this does not overcome Heng's evidence that he himself was involved in printing the statements on the NAB 965 account, with the plain inference that he knew that he could have done the same for the NAB 053 account, or instructed Ms Rooke to do so. He did not give evidence that he instructed her to do so.
11. I also note that Heng accepted that he knew that he had to produce his personal bank accounts. Given his admission that he had been personally involved in printing out the statements to the NAB 965 account, I do not accept that responsibility for the non-production lay at the feet of Ms Rooke. To the contrary, his evidence rather suggests that Ms Rooke was helpful and competent and had she been asked to print these statements she would have done so.
12. I also note that each of the 6 sets of Orders that were made to produce documents included the requirement to produce Heng's personal bank statements. These orders were made throughout the period 5 November 2021 to 27 October 2023 with the last date for production required on 30 November 2023.
13. As indicated above, in that period of time the NAB 053 account was used heavily by Heng for his own purposes. During that period the account recorded total credits of $1,287,592.91 and total debits of $1,315,104.47. Heng agreed that the statements that were ultimately produced recorded 781 "linked account transactions" - that is, transactions between the NAB 053 account and another NAB account held by Heng or a connection related to him. The parties agreed that:

(a) No less than 30 transactions to and from, or in respect of, SSA Property Pty Ltd[12] were recorded in the NAB 053 statements totalling credits of $74,400 and debits of $214,843.80;

(b) The NAB 053 statements record 5 payments totalling $25,169 made to Kelly Hazell Quill, Heng's lawyers;

(c) The NAB 053 statements record that 17 payments were received by Heng into the account from Kim Thea in the total sum of $543,800.

1. The debits and credits in paragraph 90 above include transactions commencing on 1 December 2021 with the last on 20 March 2023.
2. Based on the use of this account and Heng's admission that he used internet banking "a lot" and did so using his own NAB password, I can only conclude that he was acutely aware of the existence of this account and therefore that the failure to have produced its statements was not "mistaken" or "casual, accidental or unintentional".
3. Mr Castelan also submitted that Heng knew of the obligation to produce bank statements on various dates (as required by the First to Sixth Orders). He submitted that some of these dates closely coincided with (or were nearabouts to) Heng's use of the NAB 053 account to make various transactions. He submitted that this coincidence provides further evidentiary support for the proposition that Heng's failure to produce the statements was intentional.
4. For example, on 3 December 2021 Heng attended court for the First Examination. He was required to produce bank statements including for the NAB 053 account on that day. The statements produced indicated that:

(a) on 1 - 2 December 2021 he received $48,000 into the account and made debits totalling around $32,00 from the account including transfers to himself.

(b) on 3 December 2021 he made transfers to himself from this account in the sums of $2,000 and $5,000.

1. By way of further example, on 3 December 2021 Heng was ordered to produce his bank statements by 13 December 2021.[13] Between 3 December 2021 and 17 December 2021 the balance in the account went from $300,174.90 to $9,839.90. Between those dates there were 37 debit transactions. Many of those were to Heng himself.
2. Further examples of this nature are given in paragraphs 28(c) - (e) of the PCS.
3. In the light of all of these transactions and their proximity in time to Heng's obligation to produce statements for this account pursuant to orders, it strains credibility to suppose that Heng was not fully cognisant of this account and of his obligation to produce statements for it.
4. The highest that Ms Murphy put her submissions on this point was that Heng thought that he had produced the statements to this account. The evidence she points to in this respect was this:

"It's pretty clear that when you were examined in this court on 3 December 2021, when you came to court and you were asked questions - - -?---Yeah.

You knew about the existence of your NAB 053 account, didn't you?---I knew that, right, and I believe I did provide them already. I did (indistinct) personal there. I send I got it, I send it out."

1. I regard that evidence as quite equivocal on the point. In any event I would reject this submission in light of the countervailing evidence I have referred to above. Heng's heavy use of the NAB 053 account to transact large sums of money makes it entirely unbelievable that his failure to have produced statements on the account as he was ordered to do, was "mistaken" "casual" or that he thought that he had previously produced them. The obligation to produce these accounts continued throughout the First to Sixth Orders. He was legally represented throughout. There is no basis in the evidence to explain why he would have thought that he had previously provided these statements. I reject his evidence on this point.
2. Mr Castelan relied on a number of matters going to Heng's credit.[14] It is unnecessary for me to make a ruling on these matters in order to decide this application and I will not do so.
3. For the above reasons I conclude that Mr Heng's failure to have produced the statements on the NAB 053 account on each occasion that he was ordered to do so was intentional and deliberate.
4. The leads me to submissions made in respect of each of the particular orders that it is alleged Heng breached by not having produced the NAB 053 account statements. I will do this by reference to the Item Numbers in the Table Annexed to these reasons.

1. This item called for production of "current statements for all bank accounts, building society accounts and credit union accounts of the Judgment Debtor."
2. Other than as dealt with in my reasons above Ms Murphy made no further submission as to this item.
3. Under those circumstances I can and do find beyond reasonable doubt that Mr Heng's failure to have produced current statements for the NAB 053 account on 3 December 2021 was wilful and deliberate and that he was thereby in contempt of paragraph 3 (Schedule paragraph 2) of the Court's orders made on 5 November 2021.

1. This item called for the production of "any other documents evidencing current debts owed to the or by the Judgment Debtor."
2. Ms Murphy made 4 submissions to support the position that Mr Heng had not breached this order for production. They were all directed to establishing that the Item 5 of the orders was relevantly ambiguous such that it could not support a contempt charge.
3. First, she submitted that a bank statement is not a document that "evidences a current debt". I do not accept this submission. An entry in a bank statement that is by its description a transaction advancing a sum to a borrower or a repayment of a loan to a lender is self-evidently a document that evidences a current debt. Such payments are evidenced in the statements on the NAB 053 account that were produced in November 2024.
4. For example:

(a) On 22 November 2021 there is a debit entry "Karen Rookes - Pay back - $9,900".

(b) On 25 November 2021 there is a debit entry "Karen Rookes - Sengly Pay back $20,000".

(c) On 26 November 2021 there is a debit entry "Repay Borrowings - $100,000".

(d) On 26 November 2021 there is a debit entry "Andy Lim - Sengly Pay back $5,000".

(e) On 26 November 2021 there is a debit entry "Pheng Sok - Sengly Pay back $5,000".

(f) On 3 December 2021 there are payments described as "Channa Ear - pay back - $5,000" and "Pheng Sok - Sengly Pay back - $5,000."

(g) On 11 April 2022 there are credit entries "Loan - Kim Hor Thea - $10,000" and "Loan Kim Hor Thea - $20,000".

(h) On 13 April 2022 there is an entry "Loan from Kim Thea - $170,000".

On their face these transactions evidence, in respect of (a) - (f) payments by Heng out of this account in repayment of an amount owing to the transferee, and in respect of (g) and (h) receipt of loan funds from Kim Thea.

In this way it is plain that bank statements can and do evidence current debts owed to or by Heng.

1. I do note that only the transactions contained in sub-paragraphs (a) to (e) predate the date for production of the statements on 3 December 2021. As a consequence, as at the date for production, it is only those transactions that fell within the category concerned. Notwithstanding this limitation, those transactions are enough for me to conclude that this category of documents obliged Heng to produce statements on the NAB 053 account as at 3 December 2021.
2. Secondly, Ms Murphy argued that having regard to the fact that Item 1 called for production of bank statements, the description "other document" in Item 5 must be understood to exclude bank statements. I understand this submission to be that the order for production is relevantly ambiguous such that it cannot ground a charge of contempt.
3. This submission is problematic. Item 1 actually calls for the production of "current bank statements". On its face Item 5 includes production of "other documents" which may therefore encompass any historical bank statements (other than the most current statement) that evidences current debts owed to or by Heng. On that basis I consider that the terms of the order for production were sufficiently "clear, unambiguous and capable of compliance."[15]
4. Thirdly, Ms Murphy argued that as Item 1 dealt with bank statements, a reasonable reading of "other documents" in Item 5 would necessarily exclude bank statements. She said that there was no reason to suppose that bank statements would be included in more than 1 category. This submission must fail in light of the narrower compass of Item 1 as being limited to "current" bank statements. On that basis again, I consider that the terms of the order for production were sufficiently "clear, unambiguous and capable of compliance."[16]
5. Her final submission on this category was that as long as I find her submitted interpretation of this category to be "reasonably open" rather than "correct" then:

(a) I should find that the order is ambiguous; and

(b) it cannot be established beyond reasonable doubt that the failure to have produced the statements was wilful or contumacious.

1. This submission has difficulties. The proper construction of an order for production is a question of law.[17] Upon the completion of the construction exercise the legally correct construction is yielded.
2. The true question raised by this submission is whether the terms of Item 5, read in context of the entirety of the Schedule of documents to be produced, was clear and unambiguous such that it was capable of being complied with.[18]
3. Paragraph 3 of the Orders of Judicial Registrar Muller made 5 November 2021 required Heng to "produce to the Court on the day of the oral examination [3 December 2021], the documents set out in Schedule 1."
4. Schedule 1 commenced with this chapeau:

"You are required to bring with you a copy of the following books, records and documents in your possession, custody and control:"

1. It then contained 33 categories of documents including:
   1. All books of accounts of the Judgment Debtor for the last 3 financial years including profit and loss statements, balance sheets, cash flow statements, general ledgers, and statements of receivables;
   2. Current statements for all bank accounts, building society accounts and credit union accounts of the Judgment Debtor;
   3. Tax returns and BAS statements for the last 3 financial years;
   4. Documents containing details of any ownership and/or interest by the Judgment Debtor in a business or partnership (including number of shares owned, names and addresses of each partner, registered business name and ACN);
   5. Documents containing details of any business assets, plant and equipment stock that the Judgment Debtor owns or otherwise has an interest in;
   6. Documents concerning any interest held by the Judgment Debtor in property, land or buildings;
   7. Documents relating to the Judgment Debtor's ownership of other property and assets (including for example: motorboats, caravans, trailers, shares, debentures);
   8. All relevant files dealing with the sums owed to the Judgment Debtor;
   9. All relevant files dealing with the debts of the Judgment Debtor;
   10. Any other documents evidencing current debts owed to the or by the Judgment Debtor; and
   11. Any other documents evidencing assets owed by the Judgment Debtor including property, land and building, shares or interests in businesses or partnerships.

33. Documents relating to any other outstanding debts owed by you.

1. It should be apparent from reading the categories enumerated above, that they describe documents that may be relevant to the financial affairs of the Judgment Debtor. Some categories describe particular documents (for example categories 1, 2 and 3). Some describe documents that relate to or concern ownership of assets (for example categories 4 -7 and 11). Some describe documents relating to debts owed by the Judgment Debtor (categories 9, 10 and 33). Some describe documents relating to debts owed to the Judgment Debtor (categories 8, 10 and 31).
2. Read in context, it is apparent that the categories of documents were intended to cast a wide net to capture all documents that related to the Judgment Debtor's financial affairs - their assets, liabilities, property, tax affairs, income, bank statements, debts owed by them and monies owing to them.
3. In casting a wide net, it is clear that any particular document in the possession, power or control of the Judgment Debtor may well be responsive to more than 1 category in the Schedule.
4. Read in this context, I regard the category of documents to be produced under paragraph 10 of the Schedule (Item 5 of the Contempt Table) is clear, unambiguous and capable of being complied with.[19] As described above, transactions recorded in bank statements can provide evidence of current debts owed to or by the Judgment Debtor. Such transactions are actually contained in the statements for the NAB 053 account. That bank statements may be captured by other categories does not mean that they need not also be captured by this category.
5. Under those circumstances I can and do find beyond reasonable doubt that Mr Heng's failure to have produced current statements for the NAB 053 account on 3 December 2021 was wilful and deliberate and that he was thereby in contempt of paragraph 3 (Schedule paragraph 10) of the Court's orders made on 5 November 2021.

1. This item called for the production of "Your most recent personal and/or joint bank, building society, credit union accounts and credit card statements."
2. It is coextensive with Item 1, save to the extent that the plaintiff relies not only on the non-production on 3 December 2021 of the NAB 053 account, but also on the non-production of statements for 4 other accounts. Statements for those 4 accounts were later produced on 13 December 2021.
3. Ms Murphy submitted that the effect of Heng's evidence was that he had requested statements from his banks in relation to these 4 accounts, but that they had not been received by 3 December 2021. They were received by 13 December 2021 and they were then produced.
4. Although the statements were not produced by their required date of 3 December 2021, the fact that they were produced 10 days later provides some evidentiary support for Heng's evidence that he had requested the statements earlier.
5. Under those circumstances I cannot be satisfied that the non-production of statements on those 4 accounts was wilful or deliberate.
6. As I have said, the plaintiff also alleges that the non-production on 3 December 2021 of statements on the NAB 053 account was a contempt of court.
7. For the reasons given above, I can and do find beyond reasonable doubt that Mr Heng's failure to have produced current statements for the NAB 053 account on 3 December 2021 was wilful and deliberate and that he was thereby in contempt of paragraph 3 (Schedule paragraph 16) of the Court's orders made on 5 November 2021.

1. This item called for the production of "Documents relating to any money owed to you."
2. The plaintiff relied on the non-production of statements on the NAB 053 account.
3. In order to establish a breach of this category, the plaintiff would need to prove beyond reasonable doubt that the statements contained evidence relating to monies owed to Heng by others prior to the production date which was 3 December 2021.
4. There are within the statements on the NAB 053 account a number of debit entries with narrations that make clear that Heng lent money to others. They all carry the narration "loan". Given that these are debit entries one would expect that they were loans made by Heng to the transferee of the funds. As a consequence they contain evidence of money owed to Heng.
5. Some of the debit transactions are:

(a) on 13 April 2022 "Teralen Tit - Loan - $4,900";

(b) on 13 April 2022 "Teralen Tit - Loan - $5,100";

(c) on 19 April 2022 "SSA Property Inv - Loan - $5,100"; and

(d) on 6 June 2022 "SSA Property Inv - Loan - $30,000".

1. I note that these transaction post-date the production date required under the First Orders which was 3 December 2021. They therefore do not constitute evidence that can ground a charge of contempt of those orders.
2. Heng did give evidence in cross-examination that at times he borrowed monies from other people and thus, owed them money. He was also cross-examined on the question of having borrowed money from his sister through the company SSA Property Investments Pty Ltd (SSA) and of having lent monies to her through SSA. He was asked about the 6 June 2022 transaction. The exchange was as follows:
   1. So just going back then to 6 June 2022, the day you were examined, on that day did you lend to SSA Property $30,000?
   2. In here, I can see yeah but I got relate to my sister some of them, there's a fair bit, I can't remember.

I'm sorry, I did not understand that. Could you just say that and repeat what you said, please?---

You said something else about your sister, what else did you say?

1. Me and my sister, I only have one my sister here and then sometimes she needs some help lending. I know I get involved with my sister lending, borrow, paying in and out. That's the only way after someone else help me, my sister can help me.

1. Although the answer was somewhat garbled, I understand the gist of it to be that he has one sister in Australia and he sometimes lends money to her and she sometimes lends money to him.
2. Having said that, it is not sufficiently clear from the transactions recorded in the NAB 053 bank statements that predated 3 December 2021, that they provide evidence of money owed to Heng.
3. Ms Murphy submitted in respect of this Item that as category 31 was contained in a Schedule which had separate categories specifically directed to bank statements, this category did not include bank statements and that as a consequence the category was ambiguous. As such she submitted that this category of documents was not sufficiently clear, unambiguous and capable of compliance so as to ground a charge of contempt.[20] For the reasons given in paragraphs 117 - 123 above, I reject this submission.
4. For the reasons given above, I am unable to find beyond reasonable doubt that Mr Heng's failure to have produced statements for the NAB 053 account on 3 December 2021 has breached paragraph 3 (Schedule paragraph 31) of the Court's orders made on 5 November 2021.

1. This item called for the production of "Documents relating to any other outstanding debts owed by you."
2. This category contains a subset of documents answering Item 5 which called for production of "any other documents evidencing current debts owed to the or by the Judgment Debtor."
3. Although it is unclear why these categories overlap in the way that they do, for the reasons given at paragraphs 120 to 122 above, it is likely that any particular document may well be responsive to more than 1 category. Therefore I reject Ms Murphy's submission that the category is intended to capture documents other than those already captured by other categories. To the extent that her submission was intended to be that this category of documents was not sufficiently clear, unambiguous and capable of compliance so as to grou[21] a charge of contempt,21 for the reasons given in paragraphs 117 - 123 above, I reject this submission.
4. For the same reasons given above in relation to Item 5, I find beyond reasonable doubt that Mr Heng's failure to have produced current statements for the NAB 053 account on 3 December 2021 was wilful and deliberate and that he was thereby in contempt of paragraph 3 (Schedule paragraph 33) of the Court's orders made on 5 November 2021.

1. This category concerned bank statements for the NAB 053 account for the period 1 July 2018 to 1 December 2021.
2. By the Second Orders Heng was required to produce by 13 December 2021, bank statements for each account in his name for that period.
3. Heng's evidence and Ms Murphy's submissions in respect of this category mirrored and repeated those made in respect of Item 1.
4. For the reasons I gave in respect of Item 1, I reject those submissions.
5. Ms Murphy further submitted that by reason of paragraph 4 of the Orders of Judicial Registrar Muller made 9 May 2022 the date for compliance with this item was extended to 18 May 2022. I deal with this submission in paragraphs 188 to 191 below in respect of the Category B documents. For the reasons set out in those paragraphs I reject this submission.
6. As a consequence I am satisfied beyond reasonable doubt that Heng's failure to have produced statements for the NAB 053 account for the period 1 July 2018 to 1 December 2021 by 13 December 2021 was wilful and deliberate and that he was thereby in contempt of paragraph 1(c) of the Court's orders made on 3 December 2021.

1. This category concerned bank statements for the NAB 053 account for the period 1 July 2018 to 1 December 2021.
2. By the Third Orders (made on 9 May 2022), the date for compliance with paragraph 1(c) of the Second Orders was extended to 18 May 2022. As a consequence, Heng was under a further obligation to produce bank statements for the NAB 053 account for the relevant period.
3. He did not do so.
4. In response to this Item Ms Murphy relied only on her submissions in respect of Item 1.
5. For the reasons I gave in respect of Item 1, I reject those submissions.
6. As a consequence I am satisfied beyond reasonable doubt that Heng's failure to have produced statements for the NAB 053 account for the period 1 July 2018 to 1 December 2021 by 18 May 2022 was wilful and deliberate and that he was thereby in contempt of paragraph 4 of the Court's orders made on 9 May 2022 and paragraph 1(c) of the Orders made on 3 December 2021.

1. This item concerned any other bank accounts or credit cards held by [Heng], including any bank accounts held in countries other than Australia, for the period 3 June 2022 to date.
2. By paragraph 1(a) of the Fourth Orders (made on 24 January 2023), Heng was required to produce by 3 February 2023 documents responsive to paragraph 14(g) of Schedule 1 to those orders.
3. As a consequence, Heng came under a further obligation to produce bank statements for the NAB 053 account for the relevant period.
4. He did not produce those statements by the required date.
5. Again Ms Murphy's submissions in response to this Item relied only on her submissions in respect of Item 1.
6. For the reasons I gave in respect of Item 1, I reject those submissions.
7. As a consequence I am satisfied beyond reasonable doubt that Heng's failure to have produced statements for the NAB 053 account for the period 3 June 2022 to 24 January 2023 by 3 February 2023 was wilful and deliberate and that he was thereby in contempt of paragraph 1(a) and Schedule 1, Item 14(g) of the Court's orders made on 24 January 2023.

1. This item concerned statements for all bank accounts and credit cards held by [Heng], including any bank accounts held in countries other than Australia, for the period 3 June 2022 to 7 February 2023 not yet produced.
2. By paragraph 2(a) of the Fifth Orders (made on 16 August 2023), Heng was required to produce by 29 August 2023 documents responsive to Item 42.
3. As a consequence, Heng came under a further obligation to produce bank statements for the NAB 053 account for the relevant period.
4. He did not produce those statements by the required date.
5. Ms Murphy's submissions in response to this Item relied only on her submissions in respect of Item 1.
6. For the reasons I gave in respect of Item 1, I reject those submissions.
7. As a consequence I am satisfied beyond reasonable doubt that Heng's failure to have produced statements for the NAB 053 account for the period 3 June 2022 to 7 February 2023 by 29 August 2023 was wilful and deliberate and that he was thereby in contempt of paragraph 2(a) of the Court's orders made on 16 August 2023.

1. This item concerned statements for any bank accounts and credit cards held by [Heng] in Australia for the period 7 February 2023 to 5 September 2023 not yet produced.
2. By paragraph 2(a) of the Sixth Orders (made on 27 October 2023), Heng was required to produce by 30 November 2023 documents responsive to Item 43.
3. As a consequence, Heng came under a further obligation to produce bank statements for the NAB 053 account for the relevant period.
4. He did not produce those statements by the required date.
5. Ms Murphy's submissions in response to this Item relied only on her submissions in respect of Item 1.
6. For the reasons I gave in respect of Item 1, I reject those submissions.
7. As a consequence I am satisfied beyond reasonable doubt that Heng's failure to have produced statements for the NAB 053 account for the period 7 February 2023 to 5 September 2023 by 30 November 2023 was wilful and deliberate and that he was thereby in contempt of paragraph 2(a) of the Court's orders made on 27 October 2023.

Category B - Statements on NAB 446 account (Item 14 and 17 in Contempt Table)

1. This category concerned bank statements for a National Australia Bank account held in the name of SLH Industries Investments Pty Ltd No.91-268-2446 (NAB 446) for the period 1 July 2018 to 1 December 2021.
2. Statements on this account were not produced until 15 November 2024 when Heng produced 210 pages of statements spanning the period 25 September 2018 to 31 October 2024.
3. It is common ground that SLH Industries Investments Pty Ltd was the trustee of the Sengly Family Trust.
4. Mr Castelan submitted that Heng controlled this account. He noted that when cross-examined about this company Heng said this:
   1. "And you are the sole director and shareholder of that company, that's right?---Yes.
   2. So you control that company, that's right?---Yes.
   3. You control the trustee of the Sengly Heng Family Trust?---Yes.
   4. And you have control over all of their bank statements, that's right?---Ah, yes, pretty much, yes.
5. Ms Murphy submitted that this evidence should be contrasted with other passages of cross-examination that she said demonstrated that Mr Heng was confused about the control of this trust. I reject this submission. Ms Murphy has relied on isolated answers to support this submission such as that at TS81.16. When considering the entirety of the passage of cross-examination at TS81-82, Heng was perfectly clear that he controlled the trustee and that he controlled the trust.
6. I also reject her submissions at DCS 40(a)(ii) and (iii) that those answers demonstrated that he was confused about his control of the trust. His answers in the passages that Ms Murphy relied on concerned a particular balance sheet item that he had been directed to by the cross-examiner.
7. The clear impression he gave in these passages was that he understood that he controlled the trustee of this trust and its bank accounts.
8. Mr Castelan submitted that in view of Heng's admitted knowledge that he controlled the bank accounts for this trust, I should find that his failure to have produced the bank statements prior to 15 November 2024 was a wilful breach of the Orders that he do so on 13 December 2021 and 18 May 2022.
9. Ms Murphy made 2 further submissions in respect of these items. First, she submitted that paragraph 4 of the Orders of J R Muller made 9 May 2022 extended the date for production of these bank statements pursuant to paragraph 1(c) of his orders made 3 December 2021.
10. In essence she submitted that because the later orders extended the date for production of these statements, the failure to have produced them on 13 December was no breach.
11. This submission cannot be correct. By the 3 December 2021 orders, Heng was obliged to produce these statements by 13 December 2021. He did not do so by that date. As a consequence, on that date Heng was in breach of those orders.
12. The orders made on 9 May 2022 extending the date for production of those statements to 18 May 2022 imposed a further obligation on Heng to produce those statements by the extended date. The order was not expressed to have been retrospective by the use of the words "nunc pro tunc" or "now for then". The extension did not operate retrospectively to validate a later production of documents such that the earlier failure was not a breach.
13. Secondly, Ms Murphy submitted that Heng's explanation, that because SLH Industry Investments Pty Ltd was not a part of the proceedings he did not consider that he was bound to produce its statements, was not inherently implausible. In a similar vein she submitted that Heng lacked legal experience and relied on his assistant, Ms Rooke to assist with these affairs.
14. I have already dealt above with a submission about reliance on Ms Rooke. I reject this explanation for the same reasons as I gave above.
15. As to the plausibility of the explanation that Heng gave, the explanation appears in the TS as follows:

"I believe, because on the court order it say SLH Industry and Sengly Heng and the account ending of the 446 business SLH Industry Investment I believe this is not the entity. This is, I believe, another entity not involved with SLH Industry and my personal. I only provide my personal and SLH Industry, and this account completely another entity, SLH Industry Investment that I believe.

1. Heng's reference to the court order referring to SLH Industry Pty Ltd and not SLH Industry Investments Pty Ltd is to paragraph 1 of the Orders made 3 December 2021. I set it out below in order to consider paragraph 1(c) in the context of the entire paragraph.
   1. By 13 December 2021 at 4.00pm, the second judgment debtor must produce the following documents:
      1. all documents evidencing the terms of settlement between the second judgment debtor and his former wife, Raksmeiy Seng So, as to their marital assets;
      2. the general ledgers of each of SLH Industries Pty Ltd and the Sengly Heng Family Trust for each of past three financial years; and
      3. bank statements for each bank account held in the name of or controlled by the second judgment debtor for the period 1 July 2018 to 1 December 2021.
2. It is readily apparent that sub-paragraphs (a), (b) and (c) deal with quite discrete subject matters. Sub-paragraph (a) deals with the documents evidencing the terms of settlement between Heng and his ex-wife is relation to their marital assets. It is directed to a quite specific set of documents. That has nothing to do with the subject matter of sub-paragraphs (b) and (c).
3. Sub-paragraph (b) deals with general ledgers for a particular company and trust for a given period. Again it is quite specific in terms of the of documents sought (general ledgers) and the entities concerned.
4. Sub-paragraph (c) concerns a broader set of documents. It requires production of bank statements. The statements required are those for "each bank account held in the name of or controlled by" Heng. The use of the words "each bank account" makes clear that if there are more than one set answering the description, each of them must be produced. The bank statements are then identified by reference to Heng. It is each bank account that (a) was held in his name, or (b) was controlled by him.
5. On the face of these orders, there is no correlation of subject matter between paragraphs (a), (b) or (c). There is no textual or contextual indication that the person or entity whose bank statements were required to be produced in (c) were limited by the entitles mentioned in (b).
6. I note again that sub-paragraph (c) requires bank statements for accounts "controlled by Heng". This expression correlates to Heng's answers in cross-examination referred to in paragraph 183 above. I have found that Heng's evidence was not confused and that he seemed well to understand what was meant by controlling a bank account. Given that correlation of expression and the clarity of the terms of sub-paragraph (c), I do not consider Heng's explanation of not having produced this account to be at all plausible.
7. To the extent that Ms Murphy's submission was that this category of documents was not sufficiently clear, unambiguous and capable of compliance so as to ground a charge of contempt,[22] for the reasons given in paragraphs 195 to 200 above, I reject this submission.
8. As to Heng's lack of legal experience, I note that he was legally represented throughout this process.
9. Mr Castelan did not cross-examine Heng about the detail of any transactions recorded in these bank statements nor did he rely on those matters in his closing submissions. He really only submitted that Heng's failure to have produced them in the knowledge that he controlled the bank accounts was enough to satisfy me that the non-production was wilful and deliberate.
10. I note that Ms Murphy did not submit that these documents were not in Heng's possession, power or control and I therefore do not need to determine that question. In any event, the fact that he did ultimately produce them rather suggests that they were.
11. Ms Murphy finally submitted that I should not be satisfied beyond reasonable doubt that Heng wilfully and deliberately failed to produce the statements for this account.
12. I have found that Heng's explanation for not producing these accounts was implausible. Having regard to Heng's obvious knowledge of the business and legal structures of his own affairs including of this trust, its trustee and its bank accounts, I am comfortably satisfied beyond reasonable doubt that Mr Heng's failure to have produced statements for the NAB 446 account for the period 1 July 2018 to 1 December 2021 on 13 December 2021 was wilful and deliberate and that he was thereby in contempt of paragraph 1(c) of the Court's orders made on 3 December 2021.
13. For the same reasons I am also satisfied beyond reasonable doubt that Mr Heng's failure to have produced statements for the NAB 446 account for the period 1 July 2018 to 1 December 2021 by 18 May 2022 was wilful and deliberate and that he was thereby in contempt of paragraph 4 of the Court's orders made on 9 May 2022 (which extended the date for compliance with paragraph 1(c) of the orders made on 3 December 2021).

Category C. Marital asset settlement documents (Items 12, 15 and 36 of the Table Annexed)

1. This category called for the production of a specific set of documents. It concerned documents evidencing the matrimonial property settlement between Heng and his ex-wife.
2. Heng accepts that he never produced any documents falling within this category.
3. He explained the non-production on several bases. These were summarised as follows in Ms Murphy's closing submissions:

"In relation to the Divorce Agreement itself, [Heng's] evidence was that:

(a) he did not have in his possession a copy of the Divorce Agreement at the time he was requested to produce it;

(b) the lawyer who acted for him in his family law proceeding, Mr Scott Goodman, passed away by suicide;

(c) he did not make inquiries about what firm may have taken over and kept Mr Goodman's files;

(d) while he "believe[d]" it may have been emailed to him he was not able to access it after his company went into liquidation because the liquidators took possession of his computer and records and he was not allowed to access them without permission;

(e) he had had a computer that he used for work and personal affairs, that was left at the office and was under the control of the liquidator; and

(f) he asked for permission to access his computer and was refused.

1. Upon this evidence Ms Murphy submitted that I could not be satisfied beyond reasonable doubt that Heng's non-production of the settlement agreement was deliberate and wilful. She relied particularly on 2 matters.
2. First, the fact that Heng's computer (that may have had the settlement agreement stored upon it) had been taken by liquidators and he had been refused access to it. Secondly, although she conceded that another solicitor's practice may have taken over Mr Goodman's records after he had died and enquiries could have been made of the successor firm, there was no evidence before the court that this had in fact occurred.
3. I accept those submissions. The explanation given by Heng in relation to his computer is plausible. In relation to the solicitor's records, the plaintiff did not put before me evidence to enable me to conclude that Mr Goodman's records had actually been taken over by another firm and that enquiries of that firm by Heng would have proved fruitful. To the extent that Heng was under a positive obligation to produce such documents as were in his possession, power or control,[23] absent some evidence that the documents were in another firm's possession, I cannot be satisfied that they were in Heng's power or control.
4. For those reasons I find that this charge is not proven.

1. In conclusion, for the reasons above I have found that Mr Heng is guilty of 11 charges of contempt of court. In light of these findings I will hear the parties on the question of costs and on directions for the further conduct of the matter.

ANNEXURE A: PLAINTIFF'S TABLE OF CONTEMPTS DATED 7 FEBRUARY 2025[24]

ORDERS OF JUDICIAL REGISTRAR MULLER DATED 5 NOVEMBER 2021, DOCUMENTS TO BE PRODUCED TO BY 3 DECEMBER 2021, BEING THE DATE OF THE FIRST ORAL EXAMINATION.

Class of documents that were ordered to be produced by the Second Defendant/ Judgment Debtor and were not.

Status of Compliance by the Second Defendant/ Judgment Debtor at date of filing (from Summons).

Current statements for all bank accounts, building society accounts and credit union accounts of the Judgment Debtor.

By 3 December 2021, the Second Defendant produced bank account statement 49 for Westpac account 732 243 for the period 9 March 2021 to 9 September 2021. He subsequently produced bank account statements for an additional four other bank accounts in his name at a later date.

On 15 November 2024, the Defendant produced 82 pages of bank statements for NAB Account ending 053 (NAB Classic 053 Account) for the period 11 November 2017 to 30 August 2023.

No proper explanation why the current NAB Classic 053 Account statements as at 3 December 2021, were not produced earlier.

Any other documents evidencing current debts owed to the or by the Judgment Debtor.

On 15 November 2024, the Defendant produced 82 pages of bank statements for the NAB Classic 053 Account, for the period 11 November 2017 to 30 August 2023.

No proper explanation why the NAB Classic 053 Account statements were not produced earlier.

The Judgment Debtor's most recent personal and/or joint bank, building society, credit union accounts and credit card statements.

By 3 December 2021, the Judgment Debtor produced bank account statement 49 for Westpac account 732 243 for the period 9 March 2021 to 9 September 2021. He subsequently produced bank account statements for an additional 4 other bank accounts in his name at a later date.

On 15 November 2024, the Defendant produced 82 pages of bank statements for the NAB Classic 053 Account, for the period 11 November 2017 to 30 August 2023.

No proper explanation why the most recent NAB Classic 053 Account statements, as at 3 December 2021, were not produced earlier.

Documents relating to any money owed to the Judgment Debtor.

On 15 November 2024, the Defendant produced 82 pages of bank statements for the NAB Classic 053 Account, for the period 11 November 2017 to 30 August 2023.

No proper explanation why the NAB Classic 053 Account statements were not produced earlier.

Documents relating to any other outstanding debts owed by the Judgment Debtor.

On 15 November 2024, the Defendant produced 82 pages of bank statements for the NAB Classic 053 Account, for the period 11 November 2017 to 30 August 2023.

No proper explanation why the NAB Classic 053 Account statements were not produced earlier.

ORDER OF JUDICIAL REGISTRAR MULLER DATED [6][3] DECEMBER 2021, DOCUMENTS TO BE PRODUCED BY 13 DECEMBER 2021 AT 4.00PM.

All documents evidencing the terms of settlement between Sengly Heng and his former wife, Raksmeiy Seng So, in relation to their marital assets.

Bank statements for each bank account held in the name of or controlled by the second judgment debtor for the period 1 July 2018 to 1 December 2021.

On 13 December 2021 the Judgment Debtor produced bank account statements for:

(i) Westpac Account 853 379 from 29 August 2019 to 1 December 2021.

(ii) NAB Classic Banking" Account 32-170-4965 from 2 June 2020 to 11 December 2021.

(iii) Bank of Melbourne 451853926 from 21 July 2019 to 12 December 2021.

(iv) ANZ Account 3133-94661 21 January 2019 to 10 December 2021.

On 15 November 2024, the Defendant produced 82 pages of bank statements for the NAB Classic 053 Account, for the period 11 November 2017 to 30 August 2023.

No proper explanation why the NAB Classic 053 Account statements for the period 1 July 2018 to 1 December 2021 were not produced earlier.

On 15 November 2024, the Defendant produced 210 pages of bank statements for the NAB Account ending 446 (NAB 446 Account), for the period from 25 September 2018 to 31 October 2024.

The NAB 446 Account is in the name of SLH Industries Investments Pty Ltd, the Trustee of the Sengly Heng Family Trust. It is contended that the Second Defendant had control of the NAB 446 Account.

No proper explanation why the NAB 446 Account statements for the period 1 July 2018 to 1 December 2021 were not produced earlier.

ORDERS OF JUDICIAL REGISTRAR MULLER ON 9 MAY 2022, DOCUMENTS TO BE PRODUCED BY 18 MAY 2022 AT 4.00PM

Order 4 that extended Order 1(a) of the orders of 6 December 2021

All documents evidencing the terms of settlement between Sengly Heng and his former wife, Raksmeiy Seng So, in relation to their marital assets.

Order 4 that extended Order 1(c) of the orders of 6 December 2021

Bank statements for each bank account held in the name of or controlled by the second judgment debtor for the period 1 July 2018 to 1 December 2021.

No further bank account statements produced by 18 May 2022.

On 20 May 2022, the Second Defendant Debtor produced eight bank account statements for Westpac account 732 243 for the period 17 May 2018 to 9 March 2022.

On 15 November 2024, the Defendant produced 82 pages of bank statements for the NAB Classic 053 Account, for the period 11 November 2017 to 30 August 2023.

No proper explanation why the NAB Classic 053 Account statements for the period 1 July 2018 to 1 December 2021 were not produced earlier.

On 15 November 2024, the Defendant produced 210 pages of bank statements for the NAB 446 Account, for the period for the period from 25 November 2018 to 31 October 2024. It is contended that the Second Defendant had control of the NAB 446 Account.

No proper explanation why the NAB 446 Account statements for the period 1 July 2018 to 1 December 2021 were not produced earlier.

ORDERS OF JUDICIAL REGISTRAR MULLER DATED 24 JANUARY 2023, DOCUMENTS TO BE PRODUCED BY 3 FEBRUARY 2023 AT 4.00PM.

Any lease or rental agreements for Jayne Court Dandenong South 3175 and/or 2 Farquharson Street Mount Waverley VIC 3149

Not produced until 15 November 2024 and no proper explanation why it was not produced earlier.

The guarantees provided by the Second Judgment Debtor in respect of the purchase of the property located at Farquharson Street Mount Waverly VIC 3149 by SSA Property Investments Pty Ltd, including:

a. the loan agreements/guarantees signed by the Second Judgment Debtor in respect of Mortgage AV229081S and Mortgage AV229080U

Not produced until 15 November 2024 and no proper explanation why it was not produced earlier.

Any other bank accounts or credit cards held by the Second Judgement Debtor, including any bank accounts held in countries other than Australia, for the period 3 June 2022 to date

On 15 November 2024, the Defendant produced 82 pages of bank statements for the NAB Classic 053 Account, for the period 11 November 2017 to 30 August 2023.

No proper explanation why the NAB Classic 053 Account statements for the period from 3 June 2022 to 3 February 2023 were not produced earlier.

Most recent municipal rate, gas and electricity bills directed to the Second Judgment Debtor or a property at which the Second Judgment Debtor resides, including in respect of the properties located at:

1. Cypress Court Noble Park VIC 3174;
2. Brolen Way Cecil Park NSW 2178;
3. Farquharson Street Mount Waverley VIC 3149

Not produced until 15 November 2024 and no proper explanation why documentation was not produced earlier.

Documents relating to any Child Support or Maintenance paid or received by the Second Judgment Debtor, including the Divorce Settlement Agreement between the Second Judgment Debtor and his former wife Raksmeiy Seng So

Divorce Settlement Agreement never produced and no proper explanation provided.

Nothing pressed in relation to any of the Child Support or Maintenance documents.

Documents related to the transaction recorded in Westpac Choice Bank Account 732 243 Statement No. 43, which evidences the receipt by the Second Judgment Debtor of $830,000.00 on 29 May 2018, with the transaction description "Transfer Deposit at Knox Shopping Centre VIC", including:

1. a copy of the loan agreement between the Second Judgment Debtor and Leang as stamped by police;
2. documents evidencing all repayments the Second Judgment Debtor has made to Leang in respect of the loan agreement, including a copy of bank account statements with the relevant transactions identified.

"Loan Agreement" not produced until 15 November 2024 and no proper explanation why it was not produced earlier.

ORDERS OF JUDICIAL REGISTRAR MULLER ON 16 AUGUST 2023, DOCUMENTS TO BE PRODUCED BY 29 AUGUST 2023 AT 4.00PM.

The statements for all bank accounts and credit cards held by the second judgement debtor, including any bank accounts held in countries other than Australia, for the period 3 June 2022 to 7 February 2023 not yet produced.

On 15 November 2024, the Defendant produced 82 pages of bank statements for the NAB Classic 053 Account, for the period 11 November 2017 to 30 August 2023.

No proper explanation why the NAB Classic 053 Account statements for the period 3 June 2022 to 7 February 2023 were not produced earlier.

ORDERS OF JUDICIAL REGISTRAR MULLER ON 27 OCTOBER 2023, DOCUMENTS TO BE PRODUCED BY 30 NOVEMBER 2023 AT 4.00PM.

The statements for any bank accounts and credit cards held by the second judgement debtor in Australia for the period 7 February 2023 to 5 September 2023 not yet produced.

On 15 November 2024, the Defendant produced 82 pages of bank statements for the NAB Classic 053 Account for the period 11 November 2017 to 30 August 2023.

No proper explanation why the NAB Classic 053 Account statements for the period 7 February 2023 to 5 September 2023, were not produced earlier.

I certify that these 47 pages are a true copy of the judgment of His Honour Judge Wise delivered on 11 April 2025.

[1] Outline of Closing Submissions dated 7 February 2025 (PCS).

[2] [2024] VSC 719 [7] - [8].

[3] National Australia Bank Ltd v Juric [2001] VSC 375, [37] (Gillard J); Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201, [31] (Gillard J); Witham v Holloway (1995) 183 CLR 525, 529 (Brennan, Deane, Toohey and Gaudron JJ); Liu v Gan [2024] VSC 566, [36]-[37] (Osborne J).

[4] Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46; (1986) 161 CLR 98, 107, 111 (Gibbs CJ, Mason, Wilson and Deane JJ).

[5] Mudginberri, 107, 112-113 (Gibbs CJ, Mason, Wilson and Deane JJ), cited in Liu v Gan, [38]-[39] (Osborne J).

[6] Doyle v Commonwealth (1985) 156 510, 516.

[7] Winmar v Bromfield [2013] WASC 141 at [26]; see also Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573, 579-580.

[8] Harmsworth v Harmsworth [1987] 1 WLR 1676, 1683.

[9] Markisic v Commonwealth of Australia [2007] NSWCA 92; (2007) 69 NSWLR 737 at [61].

[10] Jordan v Goldspring (No 2) [2022] NSWSC 780 at [62] - [64].

[12] Heng asserted that this company was his sister's set up to enable her to purchase a property. Heng said that apart from setting the company up he had no further involvement with it. The relevant evidence is set out in PCS [33]. The transactions in the NAB 053 account in respect of SSA property Pty Ltd demonstrate that this evidence was false.

[13] The order was made on 3 December but authenticated on 6 December 2021.

[17] Universal Music Australia Pty Ltd v Sharman Networks Ltd [2006] FCAFC 41; (2006) 150 FCR 110 at 117 (Branson J); Wyszynski v Bill [2005] NSWSC 110 110 at [36] (White J).

[23] Jordan v Goldspring (No 2) [2022] NSWSC 780 at [62] - [64].

[24] With evidentiary references omitted.