LaserBond Limited v Hooper [2025] NSWSC 442 | Case summary | Zoe

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LaserBond Limited v Hooper [2025] NSWSC 442 | Case summary | Zoe

The defendant, Mr Hooper, was one of the founders and is a former director of the plaintiff (LaserBond). In the latter half of 2023, Mr Hooper seems to have waged a campaign of disparagement against LaserBond and its current management on a social media site for investors. LaserBond commenced these proceedings by Summons in late December 2023. It filed a statement of claim in February 2024 whereby it sought relief under the Australian Consumer Law and in injurious falsehood against Mr Hooper. It also sought urgent interlocutory injunctive relief pending final determination of the proceedings.
On 3 January 2024, the application for urgent interlocutory relief came before the duty judge in Equity. On that day, the parties reached an agreement which avoided the need for argument. At the request of the parties, the Court noted undertakings by Mr Hooper that he would refrain from making certain disparaging representations about LaserBond and its current management. The representations which he undertook not to make were those set out in paragraph 5(c) of the summons. The undertakings were expressed to be ‘pending further order of the Court’. LaserBond, through its counsel, gave the usual undertaking as to damages to secure Mr Hooper’s undertakings. The orders also noted, in effect, that the undertakings were offered without admission.
In July 2024, after the parties had gone some way down the road of preparing the case for final hearing, they attended a mediation. The mediation was successful. The parties, together with several directors of LaserBond, executed a document entitled ‘Heads of Agreement’ in which they relevantly agreed as follows:
The parties would seek orders dismissing the proceedings within seven days of executing a deed. However, they agreed that the Heads of Agreement would bind them immediately upon execution.
The parties gave mutual releases from ‘all claims that are the subject of the proceedings’.
Mr Hooper gave an undertaking that he would not make the representations set out in paragraph 5(c) of the summons. The content of this obligation was essentially the same as the content of the undertaking given in January 2024, save that this was an undertaking to ‘LaserBond and its directors’ rather than the Court.
The solicitors exchanged and all but agreed the terms of a draft deed of settlement, however it was not executed.
In the months following settlement, Mr Hooper made posts to two social media sites in which he made representations that arguably included at least some of the representations that were within the scope of his January 2024 undertaking to the Court and also within the scope of his inter-partes undertaking in the Heads of Agreement.
LaserBond now seeks orders to punish Mr Hooper for contempt of court on the footing that, despite settlement, Mr Hooper continued to be bound by the January 2024 undertakings.
LaserBond also seeks orders pursuant to s 73 of the Civil Procedure Act 2005 (NSW) to give effect to the settlement. These orders would (a) require Mr Hooper to execute the deed in the form agreed in correspondence between the parties’ solicitors and (b) grant permanent injunctions to restrain Mr Hooper’s ongoing defiance of his inter-partes undertaking in the Heads of Agreement.
For the reasons which follow, I decline to punish Mr Hooper for contempt. I will however grant the relief sought under s 73.

On 21 October 2024, LaserBond filed a notice of motion and a statement of charge. The notice of motion was supported by an affidavit of Ms Reynolds. Ms Reynolds said in paragraph [3] of that affidavit that LaserBond would rely on the principal affidavit and exhibit that had been relied on in support of the original application for urgent interlocutory relief in December 2023.
The notice of motion seeks (a) declarations that Mr Hooper is guilty of a contempt of court by reason of making the two HotCopper posts and the LinkedIn post and (b) orders pursuant to s 73 of the Civil Procedure Act requiring Mr Hooper to execute the draft deed and also permanently restraining him from making further publications in breach of the Heads of Agreement.
So far as contempt is concerned, the declaration sought in relation to each post is that Mr Hooper ‘wilfully breached his undertaking to the Court…and is guilty of a contempt of court’. LaserBond seeks orders that ‘there be verdict on Charges 1 to 3 of the Statement of Charge’.
The statement of charge identified three charges, one for each of the posts. In each case, it was stated that the post was ‘a serious communication’, that it included certain representations, that it was made to the public, that it was made in trade or commerce and that Mr Hooper ‘made the representation in wilful disobedience of his undertaking to the Court.’
The notice of motion and affidavit of Ms Reynolds were served on BlackBay Lawyers and the evidence satisfies me that Mr Hooper was provided with these documents. He has also been informed about the progress of the notice of motion, including procedural orders for the filing of evidence. However, Mr Leather explained in an affidavit that he has had continuing difficulties obtaining instructions from Mr Hooper. He has made numerous attempts to contact him for the purpose of obtaining instructions in relation to the notice of motion but has had no success. This is despite the fact that in November 2024 Mr Hooper told Mr Leather that he (Mr Hooper) intended to file and serve evidence in relation to the notice of motion.
On 21 March 2025, out of an abundance of caution, LaserBond caused the notice of motion, statement of charge, affidavit of Ms Reynolds and the order setting the motion down for hearing to be personally served on Mr Hooper at his home. I am satisfied that the documents were duly served on that date. I am in any event satisfied that these documents (save for the order listing the matter for hearing) had already been brought to Mr Hooper’s attention by Mr Leather.
When the matter was called, Mr Hooper was not in attendance. Mr Gasic of BlackBay Lawyers appeared but explained that although still on the record, BlackBay Lawyers had been unable to contact or obtain any instructions from Mr Hooper. Mr Gasic very courteously remained for the hearing but was understandably in no position to make any submissions.
It is ordinarily highly undesirable for a charge of contempt to proceed in the absence of the alleged contemnor: Doyle v Commonwealth (1985) 156 CLR 510; [1985] HCA 46. One reason for this is that, as I will explain, the Court has a discretion as to whether to punish a person for a contempt and there are circumstances in which it is appropriate for the contemnor to purge their contempt by giving an apology or by giving some assurance or taking some action that avoids the necessity to proceed with a charge. A contemnor should have the opportunity to do so up until the Court decides to proceed to hear the contempt charge. It is also ordinarily necessary to be sure that the contemnor knows exactly the case that is put against them and has an opportunity to answer the charge. Even in cases of civil contempt it is appropriate for the charge to be read to the defendant.
Nevertheless, in circumstances where it was quite clear that Mr Hooper had been served with all relevant material, and where it was equally clear that serious but unsuccessful efforts had been made by his own solicitor to secure his attendance, I was content to proceed to hear the application in Mr Hooper’s absence. This decision was informed by an authority relied on and handed to me by the solicitor for the plaintiff: Ronowska v Kus (No 2) [2012] NSWSC 817. In that decision, Pembroke J heard contempt proceedings in the absence of the contemnor. He did so on the basis of a finding that the contemnor, through his conduct, had voluntarily waived his right to be present at the hearing. The contemnor had deliberately evaded personal service whilst at the same time communicated directly with Pembroke J’s chambers. There had also been a previously adjourned hearing.
For reasons I will now explain, and despite the thoughtful submissions of Mr Furlan who appeared for LaserBond, I decline to punish Mr Hooper for contempt. If the contrary had occurred and, following the hearing and my consideration of the materials, I was in any way minded to make a finding of contempt against Mr Hooper, I would not have done so without first insisting on Mr Hooper’s attendance before the Court to enable him to answer the charges. Proceedings in which a conviction for contempt is sought should only be heard ex parte in ‘an extraordinary case’ (Doyle v Commonwealth at 518-519; Professor David Rolph, Contempt (2023, Federation Press) at 762). Despite my satisfaction that Mr Hooper had been personally served with the relevant documents and was aware of the contempt hearing yet failed to attend, I do not believe that the circumstances here were of such an extraordinary nature to permit a finding of contempt in his absence.
In my view, the appropriate course in that case would be to issue a bench warrant for the contemnor to be brought to Court and answer the case before them, consistent with the decisions of the Court of Appeal in Attorney-General for New South Wales v Hayden (1994) 34 NSWLR 638 and Registrar, Court of Appeal v Ritter (1985) 34 NSWLR 641 (see also Prothonotary of the Supreme Court of New South Wales v Jarvie [2016] NSWSC 1343).

LaserBond summarised the principles to be applied in an application to punish a person for contempt where the conduct involves breach of a court order or undertaking as follows.
First, the giving of an undertaking to the Court is equivalent to an injunction. Conduct that involves breach of an undertaking may be punishable as a contempt: Gonzales v State Coroner of New South Wales (No 2) [2018] NSWSC 1093 at [12]-[14]; In the matter of Jimmy’s Recipe Pty Ltd [2020] NSWSC 93 at [52].
Next, the breach of an undertaking is ordinarily a civil and not a criminal contempt: Novelly v Tamqia Pty Ltd [2024] NSWCA 167; Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at 530.
The elements of civil contempt must be proven beyond reasonable doubt: Witham v Holloway.
In the case of contempt arising from the breach of an undertaking, the following additional principles apply:
It must be established that the terms of the undertaking were clear, unambiguous and capable of compliance: In the matter of Jimmy’s Recipe Pty Ltd*.*
It is not necessary to prove that the contemnor had knowledge of their undertaking: Alexander v Crawford [2003] NSWSC 426 at [33]-[35]; Duncan-Strelec v Tate [2008] NSWSC 1145 at [17]-[18]; In the matter of Jimmy's Recipe Pty Limited at [52]. It is also not necessary to serve a copy of the undertaking with a copy of penal notice on the party bound: Alexander v Crawford at [35]-[39].
There is no requirement to prove that the contemnor intended to breach the undertaking. All that is required is that the contemnor intended to do the action constituting the breach: Re Group Pty Ltd v Kazal [2017] FCA 1084 at [73].
Enough must be proven for the Court to conclude that the action or inaction said to constitute the breach was deliberate and not casual, accidental or unintentional: Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 at [64].
These principles may be accepted at a level of generality. However, it is also necessary to bear some additional matters in mind.
The undertaking given by Mr Hooper on 3 January 2024 was an interlocutory undertaking. The notation to which the undertaking was subject made clear that it was given without admission as to the substantive issues in dispute, pending resolution of those substantive issues. In Australian Consolidated Press v Morgan (1965) 112 CLR 483; [1965] HCA 21, Barwick CJ described a motion to punish a party for contempt of such an undertaking as a ‘suit for what was in substance the enforcement for [the applicant’s] own benefit of the undertaking given to the Court for their protection pending the hearing of the suit’ (at 489). Windeyer J described the undertaking in that case as ‘a purely interlocutory undertaking’ (at 496).
The undertakings to the court – being Mr Hooper’s undertaking as well as LaserBond’s concomitant undertaking as to damages – were procedural in nature, designed to safeguard the parties’ rights on a without prejudice basis until the determination of the dispute. As such, LaserBond was entitled to waive compliance with Mr Hooper’s undertaking. In Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 at 217, Lord Oliver of Aylmerton explained that a civil contempt is punishable by the Court ‘at the instance of the party for whose benefit the order was made and which can be waived by him’. As Professor Rolph put it in Contempt at 152, ‘[t]he aggrieved party is not obliged to complain about another person’s non-compliance with a court order, injunction or undertaking.’
A related proposition emerges from cases such as Gilbert v Gilbert [1955] St R Qd 245 and Melksham v Fraser Island Barge Transport Pty Ltd [2003] 1 Qd R 520; [2002] QCA 218. Where parties enter into an agreement or arrangement after consent orders are made, the existence of the later agreement or arrangement may have an effect on the availability of the consent order to found a complaint of contempt. In Gilbert v Gilbert, Townley J said at 249:

The Heads of Agreement was entered into on 18 July 2024 and became immediately binding on the parties. Clause 11 made clear that the parties intended the operative clauses, including the mutual releases in clause 3, to take effect upon execution. The fact that the parties intended to enter into a deed ‘to more formally record their settlement agreement’ was expressly stated not to affect this fact. Nor was settlement made conditional on the Court making any particular order in the future.
LaserBond submitted that the 3 January 2024 orders remained on foot until such time as the Court made an order dismissing the proceedings following execution of the deed. That may be so, but the proposition that Mr Hooper remained bound by the undertaking during that period is difficult to reconcile with the language of the Heads of Agreement as a whole and with clause 3 in particular. The parties did not consider that the underlying claims which were the subject of the proceedings should remain in dispute pending the making of a final order. Rather, they sought and obtained mutual releases that put an immediate end to the litigation even prior to the making of final orders. The Heads of Agreement could have been relied on as a plea in bar to any and all claims ‘that are the subject of the proceedings and any liability arising from other events occurring from August 2023 to date’. These were sweeping releases.
It is also important to recall the notation to which Mr Hooper’s undertaking was subject. Although not quite expressed as being ‘without admission’, that was its substance. The undertaking was intended to operate in a way that preserved Mr Hooper’s rights in relation to the subject matter of the dispute until those rights could be determined on a final basis. But by the time of the conduct which LaserBond now seeks to punish as contempt, that dispute had been conclusively resolved on the terms of the Heads of Agreement. It is difficult to know how the undertaking could have operated ‘subject’ to the notation after 18 July 2024 because, from then on, Mr Hooper’s and LaserBond’s rights in relation to the dispute were entirely resolved on the basis of the Heads of Agreement.
The substantive obligations assumed by Mr Hooper in the Heads of Agreement were twofold. He undertook to LaserBond and its directors (who were not parties to the litigation) not to ‘denigrate or publish insults about’ the other parties to the deed. He also gave the undertakings in clauses 5(a) to (c) which overlap almost entirely with the interlocutory undertaking given on 3 January 2024.
This, coupled with the fact that the Heads of Agreement contained the sweeping, immediately-effective, mutual releases to which I have referred, suggests that the parties considered their rights in relation to the subject of the litigation to be governed by the Heads of Agreement on and from the time it was executed. In substance, LaserBond gave up all existing claims against Mr Hooper in return for the inter-partes undertakings contained in the Heads of Agreement. In my view, the claims which the parties released included any claims to enforce compliance with the interlocutory undertakings.
I therefore dismiss all three charges.

The Court has power to make orders declaring the existence of a settlement agreement and requiring a party to do the things necessary to give effect to that agreement: s 73 Civil Procedure Act. I am comfortably satisfied that the parties settled proceedings on the basis of the Heads of Agreement. However, the evidence shows that Mr Hooper has failed to execute and deliver the deed, as he is required to do. It is appropriate in these circumstances for the Court to make orders in accordance with paragraphs 7(a), (b) and (c) of LaserBond’s notice of motion.
The question of whether the Court should make the orders sought in paragraph 7(d) is a little more complicated.
The difficulty is that the whole gist of the Heads of Agreement was that LaserBond gave up its claim to permanent injunctions in return for the inter-partes undertakings and other promises. In a sense, permanent injunctive relief in the same terms as the Heads of Agreement would revive (and would in fact go beyond) the final relief which LaserBond was originally seeking in the proceedings. In that sense, the orders would seem to set the settlement at nought.
LaserBond submitted that it is appropriate for the Court to make an order under s 73 that amounts to an order for specific performance of the terms of settlement. It points out that the section, at least in significant part, is designed to avoid a multiplicity of proceedings because it allows a party to enforce a settlement in the same proceedings without having to start fresh enforcement proceedings. I was referred in this respect to the reasons of Basten JA in Gorczynski v Bendigo and Adelaide Bank Ltd [2016] NSWCA 170 at [6]. I was also referred to Yu v Yu [2020] NSWSC 1904 where, at [121], Williams J made injunctive orders for (in effect) specific performance of a settlement agreement.
The bulk of Mr Hooper’s obligations in the Heads of Agreement are in the nature of covenants not to disparage LaserBond or its directors. The covenants are in some respects indistinct, especially in applying only to those representations made ‘in serious communications’. Real questions could arise as to the meaning of that expression, particularly in circumstances where it is clearly intended to mean something other than ‘in trade or commerce’. In Orleans Investments Pty Ltd v MindShare Communications Ltd (2009) 254 ALR 81; [2009] NSWCA 40 (Orleans Investments), the Court of Appeal considered a challenge to injunctions which had been granted in terms that mirrored negative non-disparagement covenants contained in a deed. Those covenants, like the terms of the Heads of Agreement here, were somewhat indistinct in their scope. At [99] and following, Giles JA explained that the primary judge had been correct to grant the injunctions despite these difficulties. At [106], he said: