Bakir v Doueihi & Ors [2002] QSC 19

SUPREME COURT OF QUEENSLAND CITATION: Bakir v Doueihi & Ors [2002] QSC 019 PARTIES: RONNY MUHUDDINE BAKIR (plaintiff/first respondent) v JEAN DARK DOUEIHI (first defendant/applicant) CRAZY RON’S PTY LTD (ACN 081 277 161) (second defendant/second respondent) CRAZY RON’S MOBILE PHONES PTY LTD (ACN 083 358 114) (third defendant/third respondent) PORTVISTA PTY LTD (ACN 876 714 033) (fourth defendant/fourth respondent) AUSTRALIAN TELECOMMUNICATIONS NETWORKS PTY LTD (ACN 085 169 106) (fifth defendant/fifth respondent) CRAZY RON’S COMMUNICATIONS HOLDINGS PTY LTD (ACN 093 598 479) (sixth defendant/sixth respondent) FILE NO/S: 6124 of 2000 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 8 February 2002 DELIVERED AT: Brisbane HEARING DATE: 24 – 26 October, 8 November 2001 JUDGE: Atkinson J ORDER: 1. The first, second and fourth respondents are guilty of contempt in that they have not provided all copies of air time reports of service providers to the applicant or her nominees within 48 hours of receipt of the same, thereby contravening the order of the Honourable Justice Douglas made by consent on 27 July 2001. 2. The first to sixth respondents are guilty of contempt in that they have prevented the applicant from taking an equal share of the stock referred to in paragraph 6(c) of the order of the Honourable Justice Douglas made by consent on 27 July 2001, thereby contravening that order. 3. The first and second respondents are not guilty of -- 1 of 45 -- 2 contempt in relation to the charge of denying the applicant access to the database referred to in paragraph 6(d) of the order of the Honourable Justice Douglas made by consent on 27 July 2001. 4. The first to sixth respondents are guilty of contempt in that they have denied the applicant access to all connection contracts to 13 July 2001 for 30 days from 27 July 2001, thereby contravening the order of the Honourable Justice Douglas made by consent on 27 July 2001. 5. Matter adjourned to a date to be fixed for the purpose of hearing further submissions as to penalty, compensation and costs. CATCHWORDS: PRACTICE – CONTEMPT OF COURT – CIVIL CONTEMPT – BREACHES OF COURT ORDERS – BREACHES OF UNDERTAKINGS TO COURT – application seeking committal for contempt of court for failure to comply with undertakings and court orders – application proceeding on charges in respect of which court held case to answer exists – procedural requirements for bringing an application for contempt of court – construction and meaning of orders and undertakings – implication of term – time for compliance with orders – nature and evidence of charges against individual and corporations – compensation and penalty for contempt of court Uniform Civil Procedure Rules, r 668, r 891, r 898, r 898(2)(a), r 898(2)(c)(i), r 900, r 900(3), r 900(4), r 904, r 925, r 925(a), r 925(1)(a), r 926, r 930, r 931, r 932 Adelaide Corporation v Jennings Industries Ltd (1985) 156 CLR 274, referred to Associated Alloys Pty Ltd v ACN 001 106 Pty Ltd, [2000] HCA 25, No S65 of 1999, 11 May 2000, considered Australasian Meat Industry Employees’Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, referred to Australia and New Zealand Banking Group Ltd v Bank of Melbourne Ltd, Supreme Court of Victoria, No 5141 of 1995, 26 June 1995, referred to Australian Consolidated Press Ltd v Morgan [1964] 112 CLR 483, applied Australian Guarantee Corporation Ltd v Gold Shute Pty Ltd, Supreme Court of Western Australia, No 2470 of 1992, 26 May 1994, referred to BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, referred to Byrne v Australian Airlines Ltd (1995) 185 CLR 410, referred to Cabassi v Vila (1940) 64 CLR 130, referred to Carter v Roberts [1903] 2 Ch 312, considered -- 2 of 45 -- 3 Ccom Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524, considered Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, applied Commissioner of Water Resources v Federated Engine Consolidated Press Ltd v McRae (1955) 93 CLR 325, referred to Drivers’Association [1988] 2 Qd R 385, referred to Duda v Duda [1963] QWN 73, considered Environment Protection Authority v Caltex Refining Co. Pty Limited (1993) 178 CLR 477, referred to Evenco P/L v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) & Ors [2000] QCA 108, CA No 3536 of 1999 and 3610 of 1999, 14 April 2000, followed Exagym Pty Ltd v Professional Gymnasium Equipment Company Pty Ltd [1994] 2 Qd R 6, referred to Exagym Pty Ltd v Professional Gymnasium Equipment Company Pty Ltd (No 2) [1994] 2 Qd R 129, referred to Federal Commission of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499, distinguished Festival Records Pty Ltd v Tenth Raymond Management Pty Ltd, (1987) 11 IPR 61, referred to Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 at 596, considered Gilbert v Endean (1878) 9 Ch D 259, referred to Hawkins v Clayton (1988) 164 CLR 539, referred to Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, referred to Iberian Trust, Ld v Founders Trust and Investment Co [1932] 2 KB 87, considered In re Wilde (1910) WN 128, referred to Jendell Australia Pty Ltd v Kesby [1983] 1 NSWLR 127, applied Jonesco v Beard [1930] AC 298, referred to K G K Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13, referred to Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, referred to Madeira v Roggette Pty Ltd [1990] 2 Qd R 357, referred to McIntyre v Perkes (1988) 15 NSWLR 417, applied McNair Anderson & Assoc v Hinch [1985] VR 309, referred to Melksham v Fraser Island Barge Transport Pty Ltd [2001] QSC 441, No S673 of 2001, 22 November 2001, considered Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117, referred to Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414, referred to -- 3 of 45 -- 4 Needham v Needham (1842) 1 Hare 633; 66 ER 1183, referred to Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd [1998] 4 VR 220, referred to R & I Bank v Anchorage Investments (1992) 10 WAR 59, referred to Redwing Ltd v Redwing Forest Products Ltd (1947) 177 LT 387, referred to Repatriation Commission v Nation (1995) 57 FCR 25, referred to Richardson v Landecker (1950) 50 SR 250, referred to S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358, referred to Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VR 834, referred to Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, referred to Southern Foundries (1926) Ltd v Shirlaw [1940] AC 701, referred to Spunwill P/L v BAB P/L (1994) 36 NSWLR 290, considered Stewart v Gymboree Pty Ltd [2000] QSC 313, SC No 5023 of 2000, 12 September 2000, considered Stewart v Gymboree Pty Ltd [2001] QCA 307, CA No 8947 of 2000, 3 August 2001, considered Taylor Bros v Taylors Group Ltd [1991] 1 NZLR 91, considered The Karen Oltmann [1976] 2 Ll Rep 708, referred to TPC v Abbco Iceworks Pty Ltd (1994) 52 FCR 96, considered Union Bank of Australia Ltd v Jones (1919) 36 WN(NSW) 83, referred to Witham v Holloway (1995) 183 CLR 525, referred to COUNSEL: D R Cooper SC and C W Smiley for the applicant D B Fraser QC and M J Burns for the respondents SOLICITORS: Ffrench Commercial Lawyers for the applicant McCullough Robertson for the respondents [1] By application filed on 28 August 2001, Jean Doueihi has made an application to the court to have the respondents committed for contempt of court. This application arises out of the order made by consent on 27 July 2001 by Douglas J for the settlement of litigation between the parties. The litigation was between the plaintiff, Ronny Bakir, and the first defendant, Ms Doueihi, and a number of companies. Mr Bakir and Ms Doueihi had been in a de facto relationship for about six years and had also been in business together until about November 2000. That business concerned the sale of mobile phones and was conducted by a number of companies, the second to sixth defendants in the matter, which were jointly operated by Ms Doueihi and Mr Bakir. Ms Doueihi alleges that the respondents are in breach of orders made by and undertakings given to this court in a consent order made by Douglas J on 27 July 2001 (the “consent order”). The consent order was an agreement between the parties made into an order of the court and thus enforceable by contempt proceedings. -- 4 of 45 -- 5 [2] At the close of the applicant’s case the respondents submitted that there was no case to answer with regard to the charges against them. This application was in part successful, however, a number of charges remain. It remains to consider whether or not the applicant has proved the remaining charges against the respondents or any of them to the requisite standard, that is, beyond reasonable doubt.1 I have set out much of the applicable law to applications of this kind in the reasons I gave on 6 November 2001 with regard to the no case submission which need not be repeated. The charges [3] The charges which remain are as follows: 1. Charge 1 – air time reports: The charges against the first respondent, Mr Bakir, and the second and fourth respondents, Crazy Ron’s Pty Ltd (“Crazy Ron’s”) and Portvista Pty Ltd (“Portvista”), are found in paragraphs 1(a) and 9(a) of the amended application. The charge against the first respondent is that he failed to comply with an undertaking given to the court on 27 July 2001 in that he has not provided all copies of air time reports of service providers to the applicant or her nominees within 48 hours of receipt of the same. The charges against the second and fourth respondents are in similar terms. 2. Charge 3 – stock: The charges against the first respondent and the second to sixth respondents are found in paragraphs 5(a) and 13(a) of the amended application respectively. Those paragraphs charge that the respondents have prevented the applicant from taking an equal share of the stock referred to in paragraph 6(c) of the consent order. 3. Charge 4 – database: This charge against the first and second respondents is found in paragraphs 5(b) and 21(a) respectively of the amended application. The charge is that the first and second respondents have denied the applicant access to the data base referred to in paragraph 6(d) of the consent order. 4. Charge 5 – connection contracts The charges against the first respondent and the second to sixth respondents are found in paragraphs 5(c) and 13(b) of the amended application respectively. They charge that the respondents have denied the applicant access to all connection contracts to 13 July 2001 for 30 days from 27 July 2001, pursuant to paragraph 6(e) of the consent order. Various consequential orders for punishment and compensation are sought in the amended application. 1 Consolidated Press Ltd v McRae (1955) 93 CLR 325 at 333; Witham v Holloway (1995) 183 CLR 525 at 534. -- 5 of 45 -- 6 The consent order [4] The consent order was comprehensive, containing 13 paragraphs of undertakings and 14 paragraphs of orders. It provided: “UPON:- 1. The Plaintiff undertaking on his own behalf and on behalf of the Second to Sixth Defendants to use his best endeavours to assist the statutory trustees to collect the aged receivables referred to in para 2 of the Orders below and any other aged receivables identified as a consequence of the implementation of this order. 2. The Plaintiff, Second, Third, Fourth, Fifth and Sixth Defendants permitting the First Defendant’s accountant Mr Tim Davis and the Plaintiff’s accountant Mr Rodger Flynn access within the next 100 hours to all records to verify that the aged receivables in attachment A are aged receivables of Crazy Ron’s Pty Ltd and any other aged receivables of that company or the Third to Sixth Defendants. 3. The Plaintiff warranting that the stock level is $280,000 as at 13 July 2001 plus or minus 10%. 4. The First Defendant undertaking not to use the name “Crazy Ron’s”. 5. The First Defendant undertaking not to use any derivative of the words “Crazy Ron’s” in any business or corporate name for a period of 3 years. 6. The Plaintiff, Second, Third, Fourth, Fifth and Sixth Defendants undertaking to use their best endeavours to cause the Service Providers to pay to the First Defendant one half of the air time commission payable on existing contracts to 13 July 2001 in accordance with order 9 hereof or to assign the benefit of one-half of the income of those contracts by value to the First Defendant and in the event the Service Providers decline to do so or fail to accept such assignments the Plaintiff, Second, Third, Fourth, Fifth and Sixth Defendants will cause the Service Providers to pay the air time commission received on contracts or connections to 13 July 2001 to a trust account controlled by Scott Bruce Wedgwood and John Robert MacPherson Ffrench for them to pay equally to the Plaintiff and the First Defendant or their nominees. PROVIDED ALWAYS that all copies of air time reports of Service Providers will be provided by the Plaintiff and Second to Sixth Defendants to the First -- 6 of 45 -- 7 Defendant or her nominees within 48 hours of the receipt of the same. 7. The Plaintiff undertaking to provide to the First Defendant the stock identified in the list not chosen by the Plaintiff pursuant to Order 7(c) below. 8. The Plaintiff and the Second to Sixth Defendants undertaking to do all things necessary on their part to procure the assignments referred to in Order 7(j) below. 9. The Plaintiff and the Second to Sixth Defendants undertaking to do all things necessary on their part to procure the assignments referred to in Order 7(k) below. … BY CONSENT THE COURT ORDERS: 1. That Scott Bruce Wedgwood and John Robert MacPherson Ffrench be appointed statutory trustees of the following properties for sale:- (a) Lot 67 Marrakesh Apartments, Lot 67 BUP 106903; (b) 31 Albatross Avenue, Mermaid Beach, Lot 19 and 26 RP 21864; (c) Couran Cove, Lot 55 BUP 106870 and the statutory trustees appoint Mr Scott Wagner of Ray White Mermaid Beach to market and sell the properties by auction; 2. The statutory trustees be empowered to collect the aged receivables of Crazy Ron’s Pty Ltd as at 13 July 2001 referred to in attachment A and any other aged receivables of the Second to Sixth Defendants identified as a consequence of the implementation of this order. 3A. Each of the Plaintiff and First Defendant be at liberty to purchase the above properties from the statutory trustees at auction. 3B. In the event the Plaintiff or the First Defendant is the highest bidder at auction, the consequential transfer by the statutory trustees be deemed to be a transfer pursuant to this order. 4. The statutory trustees pay the net sale proceeds after payment of the encumbrances to Westpac Bank Limited or Portvista Pty Ltd and Crazy Ron’s Pty Ltd [including the monies referred to in order 10 hereof] and reasonable -- 7 of 45 -- 8 selling, agent and commission costs of sale and aged receivables collected as follows:- (a) the statutory trustees reasonable costs of their appointment … (c) reimbursement to the Second and Fourth Defendants of any mortgage payment made to Westpac after 13 July 2001. (d) The balance after (a), (b) and (c) above to the Plaintiff and First Defendant equally, care of their respective solicitors whose receipt shall be a sufficient discharge as to compliance with this order. 5. The parties forgive inter-parties loans or debts as follows: (a) any costs orders made in the proceedings; (b) any orders for payment of monies to the First Defendant by the Plaintiff or the Second to Sixth Defendants; (c) any wages due to the First Defendant; (d) any loan payable by the First Defendant to the Second to Sixth Defendants. 6. The stores and businesses currently operated by the parties including all furniture, plant and equipment, fixtures and fittings be transferred as a going concern and on a walk in walk out basis and subject to any chattel leases or mortgages applicable to the respective stores to the Plaintiff and the First Defendant or their nominees as follows:- (a) Plaintiff:- (i) ATN Call Centre, Level 2, 3031 Gold Coast Highway, Surfers Paradise; (ii) Ashmore Store, Shop 6, 406 Nerang Southport Road, Ashmore; (iii) Tweed Heads Store, Cnr Machinery Drive and Pacific Highway, Tweed Heads; (b) First Defendant:- (i) Labrador Store, Shop 1 and 2, 100 Brisbane Road, Labrador; (ii) Mermaid Beach Store, 2482 Gold Coast Highway, Mermaid Beach; on the basis that:- (c) There be a stock-take conducted of all stores by Hymans Auctioneers appointed by Scott Bruce Wedgwood and John Robert MacPherson Ffrench as at 13 July 2001 reconciled back to source documents and such stock existing as at 13 July 2001 to be shared equally between the Plaintiff and the First -- 8 of 45 -- 9 Defendant or their nominees. The Plaintiff and First Defendant be at liberty to attend the stock-take if they so desire. The First Defendant shall on completion of the stocktake prepare two lists of stock which she estimates constitutes an equal division between the First Defendant and the Plaintiff as at 13 July 2001. The Plaintiff shall then choose the stock on either list in satisfaction of his share. (d) The Plaintiff and First Defendant each have access to the Service Providers database maintained for connections to 13 July 2001 be [sic] the Second, Fourth and Fifth Defendants. (e) The First Defendant have access to all connection contracts to 13 July 2001 for a period of 30 days from the date hereof under the supervision of a servant or agent of the Plaintiff to copy such of the contracts as she may desire and at her expense. (f) The Plaintiff and the First Defendant be free to compete directly or indirectly against the other within the radius of 400m from their respective stores in paragraphs 7(a) and (b) above for so long as the Plaintiff or First Defendant by themselves or by a corporate entity owned and controlled by them continue to trade from the stores specified in paragraphs 7(a) and (b) or for a period of 12 months whichever is the sooner. (g) The First Defendant, forthwith, resign as a director of and transfer all her right title and interest in the shareholding in the following corporations:- (A) the Second Defendant (B) the Third Defendant (C) the Fourth Defendant (D) the Fifth Defendant (E) the Sixth Defendant in exchange for the stock referred to in para 7(c) herein. (h) the Plaintiff consent to the First Defendant’s applications to obtain dealers licences and pending the result of any such applications the First Defendant may for a period of 30 days from 17 July 2001 use the Second Defendant to Fourth Defendants’ dealer code numbers for the Mermaid Beach and Labrador Stores subject to proper identification of connections between the First Defendant and the Second to Fourth Defendants and payment of commissions and air time commissions to the First Defendant. (i) The First Defendant not take possession of the above shops referred to in para 7(b) above until 5 pm -- 9 of 45 -- 10 Friday 20 July 2001 to enable the above referred stock-take to occur. (j) The monies due to the First Defendant pursuant to para 4(e) above be retained by the statutory trustees until such time as the First Defendant obtains assignments of the leases of the stores referred to in para 7(b) above and the First Defendant indemnify the Plaintiff and Second Defendant in respect of the liabilities associated with such leases on and from 20 July 2001. (k) The monies due to the First Defendant pursuant to para 4(e) above be retained by the statutory trustees until such time as the First Defendant obtains assignments of the chattels leases in respect of the plant and equipment in the Mermaid Beach and Labrador Stores and the First Defendant indemnify the Plaintiff and Second Defendant in respect of the liabilities associated with such leases on and from 20 July 2001. 7. A declaration pursuant to s.286 of the Property Law Act 1974 that the First Defendant is entitled to receive one half of the air time commission payable or to become payable to the Second and Fourth Defendants by Service Providers in respect of contracts or connections existing at 13 July 2001 for the duration of those contracts or connections, whichever is longer. 8. The parties pay their own costs of and incidental to the proceedings. 9. The Plaintiff and First Defendant be at liberty to borrow the sum of $30,000 from Westpac secured over the property at 31 Albatross Avenue, Mermaid Beach, Lot 19 and 26 RP 21864 in the name of the Fourth Defendant to be shared equally. 10. All orders made to date in the proceedings be vacated. 11. The parties be released from undertakings previously given in the proceedings save for those contained in this order. 12. All unresolved applications in the proceedings be dismissed. 13. Liberty to apply.” [5] This application concerns, in particular, paragraphs 3 and 6 of the undertakings and paragraphs 6(c), (d) and (e) of the orders. -- 10 of 45 -- 11 Enforcement of non-money orders and undertakings [6] The enforcement of non-money orders is governed by Chapter 20 of the Uniform Civil Procedure Rules (“UCPR”). Rule 891 of the UCPR provides that a non- money order may be enforced under Chapter 20. [7] Part 2 of Chapter 20 of the UCPR provides for enforcement of particular non- money orders. Each of the particular means of enforcement provides for punishment for contempt of the person liable under the order if r 898 applies and subject to r 904. Rule 898 provides that: “(1) This rule applies to an order if – (a) the order is a non-money order and requires a person to perform an act and the act is to be performed within a time specified in the order and the person does not comply with the order within the time; or (b) the order requires a person to abstain from performing an act and the person does not comply with the order. (2) An order to which this rule applies may, subject to rule 904, be enforced in 1 or more of the following ways – (a) punishment for contempt of the person liable under the order; (b) seizing property of the person liable under the order under rule 917; (c) if the person liable under the order is a corporation, without limiting paragraphs (a) and (b), either or both of the following – (i) punishment for contempt of any officer of the corporation; (ii) seizing property of any officer of the corporation under rule 917.” [8] The enforcement of undertakings, other than for the payment of money, is covered by r 900. It provides: “(1) An undertaking, other than for the payment of money, may be enforced in one or more of the following ways; (a) punishment for contempt of the person liable under the undertaking; (b) seizing property of the person liable under the undertaking under rule 917; (c) if the person liable under the undertaking is a corporation, without limiting paragraphs (a) and (b), either or both of the following – (i) punishment for contempt of any officer of the corporation; (ii) seizing property of any officer of the corporation under rule 917. (2) An undertaking for the payment of money may be enforced as if it were a money order. -- 11 of 45 -- 12 (3) If a party is in breach of an undertaking, another party may apply for compensation to the court in the proceeding in which the undertaking was given. (4) If the court decides that a party is in breach of an undertaking and that another party has sustained a loss because of the breach for which the party in breach should pay the other party compensation, the court may give judgment against the party who is in breach for the amount the court decides should be paid.” Procedural requirements [9] The procedure for bringing an application for punishment for contempt of court in Queensland is found in Chapter 20, Part 7, Division 3 of the UCPR. Rule 925 provides that Division 3 applies to specified contempts. Subparagraph (a) of r 925 says that this Division applies to “contempt constituted by failure to comply with an order of the court or an undertaking given to the court”. [10] Rule 926 specifies the procedure that must be followed by a person applying for punishment of a contempt. It provides: “(1) A person applying for punishment of a contempt must file an application specifying the alleged contempt. (2) The application may be filed in the proceeding in which the contempt was committed or to start a new proceeding. (3) The application and any affidavit in support of it must be served on the respondent personally. (4) An affidavit in support of or opposing the application must not contain evidence which the person making it could not give if giving evidence orally.”2 Charges against the individual and the corporations [11] The charges against the first respondent in this case are made against him in a dual capacity both as an individual and as the other respondents of which he was the only director (or officer).3 He exercised full control over the operations and finances of the other respondents. The first respondent may be liable therefore under both paragraphs (a) and (c)(i) of sub-rule 898(2). In addition, his acts as officer of the other respondents may be treated as their acts so that the corporations are also liable for what Mr Bakir did.4 2 Under O 62 r 9 of the Rules of the Supreme Court, the affidavits relied upon had to be served with the notice of motion for attachment. This is no longer necessary: cf Commissioner of Water Resources v Federated Engine Drivers’Association [1988] 2 Qd R 385 at 394. 3 Evenco P/L v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) & Ors [2000] QCA 108, CA No 3536 of 1999 and 3610 of 1999, 14 April 2000, at [34] per Pincus JA. 4 Evenco P/L v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) & Ors (supra) at [34]; Stewart v Gymboree Pty Ltd [2000] QSC 313, SC No 5023 of 2000, 12 September 2000, de Jersey J at [14]. -- 12 of 45 -- 13 [12] The applicant, in compliance with paragraph 6(g) of the orders, resigned as a director of and transferred her shareholding in the corporate respondents to the first respondent. She has been restrained by court order from being involved in the running of the business as at 13 July 2001. Consequently, when giving undertakings or consenting to orders and acting thereafter, with regard to the property and companies, the first respondent acted in a dual capacity, both for himself and as each of the companies as the sole owner and director of them.5 The respondents have conceded that the first respondent exercised control over the corporate respondents.6 His state of mind was the state of mind of the relevant company.7 The evidence [13] Evidence was given on affidavit by Ms Doueihi and her legal advisers, Mr Ffrench and Mr Shneider from Ffrench Commercial Lawyers. Mr Bakir exercised his right not to give evidence. He also objected to making disclosure in accordance with an order made by Moynihan J on 28 September 2001, on the ground that such disclosure might have a tendency to incriminate him.8 He led limited evidence by way of affidavit from Phillip Downie, receiver of the second, third and fourth respondents and Mario Mancini, commissions manager, from RSL COM Australia Pty Ltd (“RSL.com”). [14] Detailed objections were taken to various paragraphs of the affidavit evidence read on behalf of the applicant. Some of the affidavits were then not relied upon by the applicant. In those that were, objections were taken variously on the grounds of argument, assertion, speculation, secondary evidence of a document which speaks for itself, incomprehensibility, irrelevance, hearsay and that the affidavits were in reply to affidavits filed by the respondents, but not read in this application. [15] Where the affidavits contain inadmissible material of the kind that were the subject of objection, I have ignored them. I have taken account of material that I consider admissible to the extent that I have referred to it in these reasons. I have, therefore, ignored matters of argument, assertion, speculation, description of or commentary on documents that speak for themselves, inadmissible hearsay and matters that are irrelevant. Construction of the orders and undertakings [16] Strict obedience is required of an order or undertaking.9 However, the meaning of an injunction or undertaking must be clear if it is to be enforced by contempt 5 See Richardson v Landecker (1950) 50 SR 250 at 259; Stewart v Gymboree Pty Ltd [2001] QCA 307, CA No 8947 of 2000, 3 August 2001, at [7]. 6 Transcript pp 202-203. 7 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 582-583; Evenco P/L v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) & Ors (supra) at [100] per Williams J. 8 Exagym Pty Ltd v Professional Gymnasium Equipment Company Pty Ltd [1994] 2 Qd R 6; Exagym Pty Ltd v Professional Gymnasium Equipment Company Pty Ltd (No 2) [1994] 2 Qd R 129; cf Environment Protection Authority v Caltex Refining Co. Pty Limited (1993) 178 CLR 477 and TPC v Abbco Iceworks Pty Ltd (1994) 52 FCR 96 at 129, 131 per Burchett J with regard to corporations. 9 Borrie and Lowe: The Law of Contempt, 3rd ed, pp 567-568; McNair Anderson & Assoc v Hinch [1985] VR 309 at 313-314. -- 13 of 45 -- 14 proceedings.10 The parties were all legally represented and had the advantage of legal advice in drawing up the consent order. They are bound both by its precise meanings and its limitations. This does not mean that the court is precluded from ascertaining the meaning using the ordinary rules of construction. The meaning of the order may either be clear on its face or once its meaning has been ascertained and any potential ambiguities resolved by application of the ordinary rules of constructions of contracts. In this jurisdiction,11 the judgment of Barwick CJ in Australian Consolidated Press Ltd v Morgan12 has been followed, where his Honour said: “The appellant submitted that unless the language of the undertaking was unambiguous and certain, it should not be enforced by contempt proceedings: and sought support for the submission in Redwing Ltd v Redwing Forest Products Ltd[13] and Iberian Trust, Ld v Founders Trust and Investment Co.[14] In my opinion, these authorities do not support this conclusion. If the order or undertaking is so expressed as to be meaningless, there is of course nothing which can be enforced. But, if it bears a meaning which the Court is satisfied is one which ought fairly to have been in the contemplation of the person to whom the order was directed or who gave the undertaking as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not, in my opinion, preclude the Court from enforcing the order or undertaking in the sense which the Court assigns to it.” [17] Williams J (as his Honour then was) in Evenco P/L v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) & Ors,15 quoted from part of the reasons of the Chief Justice and then explained why it was the preferable view: “Counsel for the BLF submitted that the learned trial judge erred in relying on that passage because Barwick CJ dissented in the result in that case. Though he agreed with Owen J to constitute a majority with respect to the end result of the case, Windeyer J appears to have agreed with Barwick CJ on the specific point in issue; at 503 he said: ‘This is not a case in which the extent of obligations undertaken is ascertainable simply by construing the undertaking according to ordinary grammatical rules. If that were so, I would agree that a mistake in construction could not excuse disobedience, although it might perhaps mitigate its consequences. 10 Borrie and Lowe: The Law of Contempt, 3rd ed, pp 560-561; Iberian Trust, Ld v Founders Trust and Investment Co [1932] 2 KB 87 at 95; McNair Anderson & Assoc v Hinch (supra) at 312; Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd [1998] 4 VR 220 at 222; Commissioner of Water Resources v Federated Engine Drivers’Association (supra) at 390; Evenco P/L v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) & Ors (supra) at [48]. 11 cf R & I Bank v Anchorage Investments (1992) 10 WAR 59 at 68 and 78; Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 140. 12 (1965) 112 CLR 483 at 492. 13 (1947) 177 LT 387. 14 [1932] 2 KB 87. 15 (supra) at [58]-[60]; Australian Guarantee Corporation Ltd v Gold Shute Pty Ltd, Supreme Court of Western Australia, No 2470 of 1992, 26 May 1994, Nicholson J at 6. -- 14 of 45 -- 15 Those who give undertakings to a Court are bound by the language they use. If its true meaning, although not immediately plain, can be ascertained according to ordinary rules of construction, then the person giving the undertaking is bound by it in that sense.’ Here, the true meaning is readily ascertainable by applying ordinary principles of construction, and that meaning is confirmed by a consideration of the matrix of facts in which it was given. That is then the meaning which the BLF and its organisers are taken to have conveyed when they proffered the undertaking and they are bound by it in those terms. That meaning is so obvious it must have been in the contemplation of the BLF at the time the undertaking was given.” [18] An order of the court should be read, so far as is reasonably possible, to give it the effect which was apparently intended, so as to achieve the court’s purpose.16 As Brooking J held in Festival Records Pty Ltd v Tenth Raymond Management Pty Ltd,17 in the Full Court of the Supreme Court of Victoria: “The court will always discourage subtle attempts to tease some ambiguity out of an injunction which, fairly viewed, bears a plain meaning.” [19] The same principle should be applied to ascertaining the meaning of an order made by consent. A consent order operates not only as an order of the court but also as a contract between the parties who therefore have an implied positive obligation to do all that is reasonably necessary to secure performance of the contract.18 There is also a negative obligation not to do anything to prevent the contract operating according to its terms.19 To do otherwise would put the party in breach of contract and therefore in breach of the order. [20] In this case, because the undertakings were given and orders made by consent, the rules relating to the interpretation of contracts, may be used as a guide to their proper construction.20 As Drummond J held in Ccom Pty Ltd v Jiejing Pty Ltd, where undertakings were given and orders made by consent:21 “Prima facie the words used in the written agreement are to be understood in their ordinary or popular sense in the search for the presumed intent of the parties to the agreement. However, few words have a single inflexible ordinary meaning, so the context in which they are used, the evidence of the background circumstances 16 Australia and New Zealand Banking Group Ltd v Bank of Melbourne Ltd, Supreme Court of Victoria, No 5141 of 1995, 26 June 1995, Ashley J at 41; Repatriation Commission v Nation (1995) 57 FCR 25 at 33-34 per Beaumont J. 17 (1987) 11 IPR 61 at 73. 18 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607; Goldtaper Pty Ltd v Berela Ltd [2001] QCA 564 at [1] per Davies JA. 19 Southern Foundries (1926) Ltd v Shirlaw [1940] AC 701 at 717. 20 Ccom Pty Ltd v Jiejing Pty Ltd (1992) 36 FCR 524 at 527; Australian Guarantee Corporation Ltd v Gold Shute Pty Ltd (supra) at 7; Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 at 596. 21 (supra) at 527-528. -- 15 of 45 -- 16 against which the agreement was made, which is always admissible as an aid to interpreting a contract, are of paramount significance in identifying the particular meaning to be adopted. … It is also well established that the context and the background evidence may require a word in common usage to be given a special or technical meaning to better reflect the objective intent of the parties, and that evidence is admissible to prove that both parties jointly intended to use the word in a special sense.” [21] In Codelfa Construction Pty Ltd v State Railway Authority of NSW,22 Mason J (as his Honour then was) considered the exception to the parol evidence rule which is that evidence of surrounding circumstances is available as an aid to construction of an ambiguous written contract. His Honour held that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning, although it cannot be used to contradict the plain meaning of the language of the contract. Prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract and to the extent that they have this tendency they are admissible. They are not admissible, however, to the extent that they consist of statements and actions of the parties which are reflective of their actual intentions and expectations, as these statements and actions reveal the terms of the contract they hoped to make and are superseded by the contract itself. When the issue is which of two or more possible meanings is to be given to a contractual provision, the court looks not to the actual intentions and expectations of the parties before or at the time of the contract, but to the objective framework of facts within which the contract came into existence and to the parties’presumed intention.23 [22] In Spunwill P/L v BAB P/L,24 Santow J examined the settled principles for the construction of a written document. These principles are that the language of a term is generally assigned its natural and ordinary meaning, read in light of the whole contract, but that where it is ambiguous, surrounding circumstances may be taken into account in assigning the presumed meaning. The surrounding circumstances include the matrix of mutually known facts, and the background, object, context and commercial purpose of the transaction, in the objective sense of what reasonable persons in the position of the parties would have had in mind.25 [23] Santow J also held that the scope of the ‘surrounding circumstances’ exception as outlined in Codelfa is to be determined in the context of the objective theory of contract – ie to ascertain the intention of reasonable persons in the position of the actual parties to the contract. The language of the contract is placed in the context of the objective framework of facts from which it arose. Extrinsic evidence of facts, statements and conduct will be relevant in this, as it will illuminate the 22 (1982) 149 CLR 337. 23 Goldtaper Pty Ltd v Berela Ltd (supra) at [4], [14]. 24 (1994) 36 NSWLR 290. 25 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (supra) at 347-352; Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VR 834 at 844-850. -- 16 of 45 -- 17 meaning that reasonable persons in the position of the parties objectively intended ambiguous language to bear. Citing The Karen Oltmann,26 Santow J held that extrinsic evidence will be admissible to show that the parties negotiated on the basis that ambiguous language had a particular meaning and that parties can in effect give their own dictionary meaning to words as a result of their common intention. [24] This is apposite to this case, where the meaning of the consent order made can be determined by reference to the objective framework of facts from which it arose and the meaning given to particular words by the parties. Implied terms [25] As to implied obligations, the respondents submitted that the terms which may be implied into an agreement, which has been made an order of the court in compromise of litigation, are not, in general, enforceable by contempt proceedings. Although the respondents conceded that what may or may not be implied in terms of imposing obligations on a party to an agreement and whether a particular act is in breach of such an implied term are matters the subject of litigation in the courts on a regular basis, they submitted that if a particular action or omission is required by the order, that must be set out in the order to enliven the power to punish for contempt. In such a case, they submitted, a supplementary order would be necessary before contempt proceedings could be brought. [26] The principles relating to the implication of an implied term in a contract are reasonably straightforward and have been restated recently by the High Court in Associated Alloys Pty Ltd v ACN 001 106 Pty Ltd,27 where the majority held: “The rules governing the implication of an implied term as a matter of fact were stated by the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings[28] and have subsequently been approved and applied in numerous decisions of this Court.[29] In Codelfa Construction Pty Ltd v State Rail Authority of NSW,[30] Mason J restated the five conditions laid down by the Privy Council: ‘(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that ‘it goes without saying’; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.’” These rules of construction apply whether or not the agreement between the parties has been reduced to a consent order. Liberty to apply 26 [1976] 2 Ll Rep 708. 27 [2000] HCA 25, No S65 of 1999, 11 May 2000 at [44]. 28 (1977) 180 CLR 266 at 283. 29 These include Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (supra) at 605-606; Codelfa Construction Pty Ltd v State Rail Authority of NSW (supra) at 351-352, 404; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 65-66, 95, 117- 118, 121; Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414 at 435; Adelaide Corporation v Jennings Industries Ltd (1985) 156 CLR 274 at 281-282; Hawkins v Clayton (1988) 164 CLR 539 at 571-573; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422, 441. 30 (supra) at 347. -- 17 of 45 -- 18 [27] Liberty to apply was expressly reserved in the order of 27 July 2001 and the respondents submitted that if the action required was necessary for the carrying out of the order, then such further relief should be obtained. However, as McPherson SPJ (as his Honour then was) said in the case relied upon by the respondents, Fylas Pty Ltd v Vynal Pty Ltd:31 “For reasons that are self-evident, the power of the Court or a judge to set aside or vary a judgment or order made inter partes is closely circumscribed. Leaving aside powers exercisable on appeal, a judgment that is final given after a contested hearing cannot be set aside or varied after it has been drawn up, passed and entered except to the limited extent allowed by the slip rule … ; or under the peculiar provisions of O. 45 r. 1;[32] or, in some circumstances, by reason of fraud in obtaining the judgment, in which event independent proceedings are required to set it aside.[33] ‘Liberty to apply’ is sometimes said to be a further exception. It is, however, not a true exception at all, because a judgment or order that expressly reserves to parties a leave or liberty to apply can be varied on an application pursuant to such leave only so far as may be necessary for the purpose of working out the actual terms of the order so as to make it more efficacious in matters of detail.” [28] What cannot be done under the guise of ‘working out’ an order is to vary it. This order was not interlocutory in terms but was intended to compromise the whole of the litigation between the parties. It results from agreement between the parties. The Court therefore lacked the power to vary its terms. [29] The respondents have submitted that the applicant should, however, have taken advantage of the liberty to apply to obtain supplementary orders not to vary its terms but to provide for more precision in what the respondents were obliged to do or not to do.34 Time for compliance [30] The time for compliance with the undertaking the subject of the first charge was said in the consent order to be within 48 hours of receipt of the airtime reports by the relevant respondents. The fifth charge was in respect of the denial of access to all connection contracts. The consent order provided that access should be for 30 days from the date of the consent order. It remains to be determined whether the time for compliance was specified in respect of the orders that form the basis of the third and fourth charges. [31] However, it seems reasonably clear that the orders made in paragraphs 6(c) and (d) of the consent order were to be complied with forthwith. 31 (supra) at 597-598. 32 See K G K Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13. This provision is now reproduced in r 668 of the UCPR. 33 Jonesco v Beard [1930] AC 298; Cabassi v Vila (1940) 64 CLR 130 at 147. 34 Iberian Trust, Ld v Founders Trust and Investment Co (supra) at 96. -- 18 of 45 -- 19 [32] In considering whether a failure to specify a time in an undertaking rendered it unenforceable in contempt proceedings, Byrne J held in Carter v Roberts:35 “I am not going to lay down any general rule as to undertakings, that they can never be enforced by attachment or committal because a time is not mentioned. It depends of course on the nature of the undertaking; but in a simple case, where there is an undertaking to pay into court or to a joint account, it does not appear to me that the position ought to be worse for the party undertaking to pay, than if an order had been made, and if it is desired to enforce the undertaking, no time having been mentioned, an order fixing the time ought to be obtained first, or relief may be obtained by an application for the appointment of a receiver, if it is a proper case for such an appointment.” [33] In Duda v Duda,36 Gibbs J (as his Honour then was) held that an order should state the time, or the time after service of the order, within which the act is to be done. If the order does not fix a time for compliance with it, it is not thereby rendered ineffectual, for the court may make a supplementary order fixing a time, but until this is done the order cannot be enforced.37 Meaning of orders and undertakings [34] If, by construing the undertakings and orders by ordinary principles of construction, the meaning is clear and unambiguous then a breach of them may be proved in proceedings for contempt. In determining whether or not a breach is proved to the requisite standard, the court must look at the terms of the order or undertaking to determine what a party must do or refrain from doing in order to comply with its terms.38 What is obedience to the order or undertaking will inevitably turn on its language. Charge 1 – air time reports: [35] In paragraph 1(a) of the application, the applicant seeks an order that the first respondent be committed for contempt for failing to comply with an undertaking given by him in the consent order, in that he has not provided all copies of airtime reports of service providers to the applicant (or her nominees) within 48 hours of receipt of the same. Further, in paragraph 9(a) of the application, the applicant seeks an order that the second and fourth respondents be fined for their contempt of court for their failure to comply with their undertaking, in that they have not provided all copies of airtime reports of service providers to the applicant (or her nominees) within 48 hours of receipt of the same. [36] The obligation of the respondents is said to arise under the proviso which forms part of the undertakings in paragraph 6 of the order of Douglas J of 27 July 2001. Paragraph 6 of the undertakings provides: “UPON:- 35 [1903] 2 Ch 312 at 321. 36 [1963] QWN 73 at 74. 37 Needham v Needham (1842) 1 Hare 633; 66 ER 1183; Gilbert v Endean (1878) 9 Ch D 259 at 266; In re Wilde (1910) WN 128. 38 Australia and New Zealand Banking Group v Bank of Melbourne (supra) at 44-46. -- 19 of 45 -- 20 The Plaintiff, Second, Third, Fourth, Fifth and Sixth Defendants undertaking to use their best endeavours to cause the Service Providers to pay to the First Defendant one half of the airtime commission payable on existing contracts to 13 July 2001 in accordance with order 9 hereof or to assign the benefit of one half of the income of those contracts by value to the First Defendant and, in the event the Service Providers decline to do so or fail to accept such assignments, the Plaintiff, Second, Third, Fourth, Fifth and Sixth Defendants will cause the Service Providers to pay the airtime commission received on contracts or connections to 13 July 2001 to a trust account controlled by Scott Bruce Wedgwood and John Robert Macpherson Ffrench for them to pay equally to the plaintiff and the First Defendant or their nominees. PROVIDED ALWAYS that all copies of airtime reports of Service Providers will be provided by the Plaintiff and Second to Sixth defendants to the First Defendant or her nominees within 48 hours of the receipt of the same.” (Italics added). [37] The proviso makes clear that the plaintiff and second to sixth defendants must provide all copies of airtime reports of service providers to Ms Doueihi or her nominees within 48 hours of the receipt of them. Ms Doueihi has not appointed any nominee for the purpose of receiving the airtime reports. [38] The applicant particularised this charge by saying that the first and second respondents have failed to provide airtime reports sent to the second respondent by RSL.com for the months of July and August 2001 and that the first and the fourth respondents have failed to provide airtime reports sent to the fourth respondent by Vodafone Pty Ltd (“Vodafone”) dated 2 August 2001, 4 September 2001 and 3 October 2001. It is further alleged that the first and second respondents received the reports from RSL.com on or about 18 August and 19 September 2001 and that the first and fourth respondents received the reports from Vodafone P/L on or about 2 August 2001, 4 September 2001 and 3 October 2001. [39] In paragraph 22 of her affidavit filed on 28 August 2001 with the application, Ms Doueihi says that she had not at any stage received an airtime report of a service provider. By then, as she alleges, the first and second respondents had received an airtime report from RSL.com and the first and fourth respondents had received an airtime report from Vodaphone which had not been provided to the applicant or at all. The particulars allege a continuation of that behaviour after the application was filed. [40] Mario Mancini, the commissions manager for RSL.com, described an airtime report as a listing by a service provider of all the customers who were originally connected by a dealer and who are generating commission for the dealer through the use of their mobile phones. The reports are generated in the middle of the month following the month to which they relate. The commission which the report shows is paid at about the same time. The reports are sent by email and Mr Mancini recalls sending reports for July and August to the email address of the second respondent on 18 August and 19 September respectively. The person with whom Mr Mancini had contact was the first respondent. He also sent the July and August -- 20 of 45 -- 21 reports to the second respondent’s email address at the request of the second respondent on 23 October 2001. [41] The supervisor of partners at Vodafone, Alexander Cook, was responsible for the delivery of airtime reports on behalf of Vodafone to dealers such as the fourth respondent with whom Vodafone had an agreement. The contact person for the fourth respondent was the first respondent. The airtime reports show the names of the customers, date of connection and amount of commission payable and are sent to dealers monthly by mail. The reports were sent to the first and fourth respondents. The reports dated 2 August, 4 September and 3 October were posted within 7 days of the date on the report. A test letter was sent with each batch to ensure there were no problems with it. I am able to safely infer that these letters were received in the ordinary course of the post by the first and fourth respondents on or about 10 August, 12 September and 11 October 2001. Neither of those respondents provided copies of those reports to Ms Doueihi within 48 hours of their receipt. [42] Mr Mancini gave evidence that he had never received a letter from the respondents or their solicitors to forward copies of airtime reports to Ms Doueihi. He said that had he received such an instruction, he would have acted on it. A letter was sent by the respondents’ solicitors on 24 July 2001 to RSL.com, which dealt with a number of matters. Included was a query asking if RSL.com was able to forward copies of airtime reports to Ms Doueihi. A letter in similar terms was sent to Vodafone. No instruction to do so was ever sent by any of the respondents. [43] It does not appear that RSL.com ever sent airtime reports to Ms Doueihi but then it does not appear that the respondents ever actually instructed them to do so. The airtime reports were eventually sent to Ms Doueihi’s solicitors by Vodafone but not until some time during the week before the evidence given by Mr Cook on the hearing of this application, i.e. in the week prior to 25 October 2001. [44] On 7 August 2001, the applicant’s solicitors sent a letter by facsimile transmission to the respondents’ solicitors complaining, inter alia, of the first respondent’s failure to provide copies of airtime reports in accordance with his undertaking and saying that they required them to be provided on that day. A commission summary for July was sent by the respondents’ solicitors to the applicant’s solicitors on 7 August 2001. On 31 August 2001, after filing this application Ms Doueihi received a commission summary which had been provided to her solicitors by Vodafone on 30 August 2001. These are not airtime reports, a copy of which she exhibits to her affidavit filed 9 October 2001, which shows what such reports contain. On 31 August 2001, Ms Douiehi also received, from the respondents’ solicitors, what appeared to be an airtime report from RSL.com relating to the payment of commission due on 15 August 2001. This is the only airtime report she has received. [45] On 4 September 2001, the respondents’ solicitors wrote to the applicant’s solicitors saying that the recurring commission summary for the period July 2001 was received by Crazy Ron’s on 17 August 2001 and that Mr Bakir instructed that he sent a copy of it to Ms Doueihi by facsimile transmission at 4.00pm on 21 August 2001. They attached a further copy of the recurring commission summary for July 2001. On cross examination, Ms Doueihi denied receiving this recurring -- 21 of 45 -- 22 commission summary by facsimile from Mr Bakir. He did not give evidence that he sent it and I do not accept that he did. [46] The summaries do not disclose the customers in respect of whom commission is paid nor the amount of commission payable for each customer. Such facts are disclosed in the airtime reports. From the airtime reports Ms Doueihi would be able to ascertain whether she was being paid the correct amount in respect of airtime commission for each customer. She has been unable to do so because of the failure to provide these reports. These reports have a subsidiary benefit to the businesses conducted by Mr Bakir and by Ms Doueihi in that they allow the usage of customers to be monitored, which gives rise to business opportunities to contact the customer and recommend any other plans which may better suit their mobile phone usage. [47] Attached to their letter dated 4 September 2001, the respondents’ solicitors provided to the applicant’s solicitors the recurring commission summary for July referred to earlier as well as the rebate commission statements for the period 20 July to 16 August 2001. These statements from RSL.com are dated 27 July and 3, 10 and 17 August from RSL.com and show commission payable on individual new connections made by or on behalf of the second respondent, showing which store made the connection. They also provided a copy of an email from RSL.com indicating those customers who had been disconnected and to which “clawbacks” therefore applied; and an amount that had been calculated as due to Ms Doueihi, for the period 20 July to 16 August 2001, being $28,042.00. There is no evidence as to who had performed that calculation. [48] It appears from documents produced in an answer to a subpoena directed to the second respondent, that airtime reports were received by the second respondent by email from RSL.com on 17, 18, 19, 20 August and 17, 18, 19 and 20 September 2001. The fourth respondent produced airtime reports from Vodafone dated 2 August, 4 September and 3 October 2001 addressed to the first and fourth respondents. Mr Bakir or Mr Ellaz asked for those emails to be sent again on 23 October 2001, so that they could be readily produced in answer to a subpoena. Even without those documents, I would be satisfied to the requisite standard that airtime reports were received by the first, second and fourth respondents between 27 July and 28 August 2001, when the application was filed, which were not provided to the applicant within 48 hours of their receipt. [49] The respondents argued that this obligation is not an undertaking. But if that submission is correct, and in my view it is not, then it constitutes an order to provide all copies of the airtime reports within 48 hours of receipt, an order which has not been complied with. [50] The failure to provide the airtime reports was deliberate. They are important customer databases, the receipt of which would not have been overlooked by the respondents. They well knew of their importance to the applicant for information about customers and commission owing. This charge has been proved beyond reasonable doubt. Charge 3 – stock: -- 22 of 45 -- 23 [51] In paragraph 5(a) of the amended application, the applicant seeks an order that the first respondent be committed for contempt for preventing the applicant from taking an equal share of the stock referred to in paragraph 6(c) of the consent order. Further, in paragraph 13(a) of the amended application, the applicant seeks an order that the second to sixth respondents be fined for their contempt of court for a similar breach. [52] Paragraph 6(c) of the consent order, which is said to be breached, provided: “There be a stock-take conducted of all stores by Hymans Auctioneers appointed by Scott Bruce Wedgwood and John Robert Macpherson Ffrench as at 13 July 2001 reconciled back to source documents and such stock existing as at 13 July 2001 to be shared equally between the Plaintiff and the First Defendant or their nominees. The Plaintiff and the First Defendant be at liberty to attend the stock-take if they so desire. The First Defendant shall on completion of the stock-take prepare two lists of stock which she estimates constitutes an equal division between the First Defendant and the Plaintiff as at 13 July 2001. The Plaintiff shall then choose the stock on either list in satisfaction of his share.” This was said in the order to be one of the bases on which various stores and businesses then operated by all the parties were to be transferred as a going concern and on a walk in/walk out basis either to the applicant or the first respondent or their nominees. [53] There are a number of related orders and undertakings which must be taken into account because, as previously observed, the order must be read as a whole. The orders made and undertakings given must be understood in the context of the settlement of litigation intended to sever their financial relationship but fairly compensate each party. As the applicant submitted, the second to sixth respondents were necessary parties because they held the property, chattel and business leases and were liable for taxes. Consequently, the determination of the parties’ respective entitlements necessitated the adjustment of their rights qua the companies as well as between themselves. [54] In paragraph 6(g) of the orders, the applicant was ordered to forthwith resign as a director of and transfer all her right, title and interest in the shareholding in the second, third, fourth, fifth and sixth defendants in exchange for the stock referred to in paragraph 6(c). She has done so. [55] Ms Doueihi’s resignation as a director and shareholder of the relevant companies was acknowledged in writing by Mr Bakir in Mr Shneider’s presence on 30 July 2001. [56] Paragraph 6(c) of the order contained the following distinct obligations: 1. There was to be a stock-take conducted of all stores by Hymans Auctioneers appointed by Mr Wedgwood and Mr Ffrench as at 13 July 2001 reconciled back to source documents; -- 23 of 45 -- 24 2. Such stock existing as at 13 July 2001, which was warranted by the first respondent in paragraph 3 of the undertakings to be worth $280,000 plus or minus 10 per cent, was to be shared equally between the applicant and the first respondent or their nominees; 3. The applicant, on the completion of the stock-take, was to prepare two lists of stock which she estimated constituted an equal division between herself and the first respondent as at 13 July 2001; 4. The first respondent was to then choose the stock on either list in satisfaction of his share. [57] The applicant complains in her application of a breach of the second obligation arising under paragraph 6(c) of the consent order, i.e. to share equally the stock existing as at 13 July 2001. The application is brought pursuant to r 925(1)(a) of the UCPR. Rule 897 is not relevant because this was not an order, in terms, for the delivery of goods. The time for compliance with this obligation was as soon as the stocktake, the subject of the first obligation, had been undertaken. [58] The applicant has particularised this charge by saying that an equal share of stock is a 50/50 division of the stock by value agreed between the applicant and the first respondent on 30 July 2001. She says that the material facts relied upon to allege that the respondents have prevented the applicant from taking an equal share of the stock, are that when they met at the offices of the second respondent on 30 July 2001, the applicant and the first respondent, acting on behalf of himself and the other respondents: “ … agreed that the value of the stock to be divided between them was $260,228. Therefore the value of the share of stock to which the [applicant] was entitled was $130,114. The [applicant] obtained and took away stock on 30 July 2001. It was agreed between the [first respondent] and the [applicant] that this stock had a value of $65,057. It was also agreed between the [first respondent] and the [applicant] that the [applicant] was entitled to further stock to a value of $65,057 which she could obtain by lodging orders with the [first respondent] over the next 14 days. Despite demands for that stock it was never provided. That failure is the manner in which the [first respondent] has prevented the [applicant] from obtaining her share of the stock. The demands for stock are referred to at Ex JDD8 to the Affidavit of the [applicant] sworn on 28 August 2001.” [59] The factual matrix which led to this order can be seen from the correspondence between the parties’ solicitors. On 20 July 2001, the applicant’s solicitors sent a letter by facsimile transmission to the respondents’ solicitors with regard to the order which was under negotiation. With regard to stock they said: “We have not yet received the stock listings although we understand that they will be available shortly. These will need to be given to the accountants who will then value the stock according to invoices. Clearly this cannot be done today. We understand the stock lists have been completed store by store. Therefore there cannot be any dispute about the stock which our -- 24 of 45 -- 25 client takes on handover today, subject to variations for sales today which can be verified from records.” They also noted that the respondents must maintain proper stock levels so that the Labrador and Mermaid Beach stores could be handed over as a going concern. [60] The respondents’solicitors said in reply, on the same day: “The issue of stock is referred to in para 7(b) of the Order. This is a distinct Order which directs the manner by which stock will be shared. Our client will move all stock from the relevant stores to the call centre. Our client does not agree with your proposal as it, in our client’s opinion, will lead to further unnecessary argument. Our client appreciates the need for your client to have access to stock as soon as possible so she may commence trading. In those circumstances, Mr Bakir proposes that Ms Doueihi or her agents provide a list of the stock which she wishes to trade and, if possible, our client will fulfil that list. We therefore will have a clear list of those items which your client has in her possession. This will avoid the need for further, costly reconciliations. Mr Bakir is prepared to provide the stock to your client this afternoon when she/her agent collects the keys. Mr Bakir will make a staff member available until 8.00pm tonight to facilitate this. Please accept this gesture as a sign of our client’s good faith.” [61] On 22 July 2001, Ms Doueihi wrote to Mr Bakir telling him that it was “imperative” that she receive the “stock ordered” urgently. After raising the matter of the payment of commissions she concluded: “I would also appreciate your co-operation in the return of all stock, plant, equipment, fixtures and fittings of the Mermaid store so that this settlement can be resolved as soon as possible and at a benefit to both of us.” [62] On 25 July 2001, the respondents’ solicitors sent a letter to the applicant’s solicitors attaching stock sheet forms used by Hymans Auctioneers and noted that Mr Bakir had forwarded to Ffrench Commercial Lawyers a complete list of stock, showing pricings as at 18 July 2001 and a list of stock sold between 13 and 18 July 2001. McCullough Robertson, the respondents’ solicitors, said these documents confirmed stock on hand valued at approximately $281,141.28 as at 13 July 2001. [63] The consent order was made on Friday, 27 July 2001. At 7.00am on Monday 30 July 2001, Mr Shneider, the Litigation Manager of Ffrench Commercial Lawyers, the applicant’s solicitors, went to the head office of the second respondent, Crazy Ron’s. This appointment was made by Mr Shneider with Mr Wedgwood, solicitor for the respondents. Mr Wedgwood had arranged for professional stocktakers to attend at that time, but they did not arrive to commence the stocktake until 8.35am. Mr Shneider gave evidence about these events which, like the rest of his evidence, appeared careful and reliable and was of great assistance to the court in determining precisely what occurred. -- 25 of 45 -- 26 [64] Once the stocktakers had arrived, Mr Shneider went into the head office of Crazy Ron’s with Ms Doueihi and her accountant, Tim Davis of Elliotts Partners. There they met and spoke with an employee of the first respondent, Hardi Ellaz and the first respondent’s brother, Alan Hassan. At about 9.00am Mr Shneider ascertained that Mr Wedgwood was ill and would not be in attendance, but that he had no objection to Mr Shneider being at the premises during the stocktake, nor did he object to Mr Shneider discussing matters concerning the stocktake with Mr Wedgwood’s client. During the telephone conversation in which Mr Shneider ascertained those things, he suggested that a representative of McCullough Robertson, which has an office on the Gold Coast, might be sent to oversee matters on behalf of the first respondent. Mr Wedgwood said that would not be necessary. Mr Bakir arrived at approximately 10.00am. [65] Mr Hassan gave Ms Doueihi a stock list created from the records of Crazy Ron’s. It was the same as a list she had previously been given by Mr Bakir which she had already divided into two columns marked 1 and 2, together with a column marked “extra”, and which she had sent to Mr Bakir. It appears that the “extra” column provided for items which could not be equally shared because there was not an even number. So for example where there were 16 Ericsson T28 leather cases, these were divided into 8 in each list. There were however 17 Ericsson T28 PVC cases. These were divided 8 each with 1 extra. [66] During the course of the day the stocktake moved to the other stores of Crazy Ron’s and was finally completed at 4.00 pm or thereabouts. Towards the end of the stocktake Mr Bakir told Mr Shneider that the level of stock was much different to what he had been led to believe by his staff. He said that he doubted there would be stock to the value of two hundred thousand dollars ($200,000.00), even after adjusting back to 13 July 2001. No explanation for this apparent deficiency has been provided to the court by the respondents. [67] At the end of the stocktake, Ms Doueihi asked Mr Bakir to choose which of the columns, 1 or 2, he wished to have, and Mr Bakir chose the second column. At this stage they were seated in Mr Bakir’s office, with Mr Bakir sitting behind his desk and Ms Doueihi, Mr Ellaz, Mr Hassan and Mr Shneider seated around the other side of the desk. Discussion ensued concerning the apparent lack of stock. Mr Bakir pleaded with Ms Doueihi to allow him to retain one half of the stock despite the fact that the total of all stock was only approximately one half of the warranted figure of two hundred and eighty thousand dollars ($280,000.00). Ms Doueihi told him that she needed stock with which to commence her own businesses, and Mr Bakir continued to insist that he could not give her all of the stock which he held. [68] Mr Bakir then offered to make up the balance of stock within fourteen days of that date. At that point the parties believed that the deficiency in stock which would be then suffered by Ms Doueihi was in the order of fifty thousand dollars ($50,000.00). During this conversation Mr Bakir and his brother, Mr Hassan, demanded share transfers and resignations as director from Ms Doueihi. Mr Bakir was adamant that Ms Doueihi could not remove any stock from the premises unless and until she handed to him share transfers and forms resigning as director of the companies. Ms Doueihi sought Mr Shneider’s advice and he reminded her of her obligations under the court order made 27 July 2001. Mr Shneider then hastily wrote out in his own hand an acknowledgement which he asked Mr Bakir to sign after he had -- 26 of 45 -- 27 forwarded it to his solicitors seeking advice. Mr Bakir, however, signed the documents then. It provided: “I the undersigned Ron Muhadine Bakir Hereby Acknowledge that I have received share transfers and resignations from Jean Dark Doueihi despite that I have not yet supplied her with all of the stock pursuant to the Order of the Supreme Court of Queensland of the Honourable Justice Douglas made on 27 July, 2001 And that she has provided the said share transfers and resignations on my promise to provide the balance of stock in the approximate sum of $50,000.00 within fourteen days of this date.” [69] Immediately after the handwritten document was signed by Mr Bakir and witnessed by Mr Shneider, Mr Bakir and Ms Doueihi went about the task of assessing the value of stock which Mr Bakir was prepared to allow Ms Doueihi to take. That figure came to $65,057.00. A number of arrangements were then entered into between Mr Bakir and Ms Doueihi concerning individual items of stock in the form of telephone handsets and accessories. At the conclusion of this exercise, Mr Bakir and Ms Doueihi agreed that rather than trying to estimate any further figure, they would settle on a balance of stock to be supplied within fourteen days by Mr Bakir to Ms Doueihi in exactly the same sum as was to be taken that day, that is to say the value was to be a further $65,057.00. Mr Bakir, in his own handwriting, then wrote out an acknowledgement which he signed and Mr Shneider witnessed. This provided: “The balance of stock to be supplied within 14 days to the value of 65,057 sixty-five thousand $$ 57 only to Joenny Doueihi to be delived [sic] to the Mermaid or Labrador Store. Accessories = $16,432 Phones = $48,625.” He faxed a copy of this to his solicitors before signing it. Ms Doueihi countersigned this document to evidence her agreement to this arrangement for complying with the court order. [70] The applicant submitted that this arrangement was in conformity with the obligations cast upon the respondents by paragraph 6(c) of the order and paragraph 7 of the undertakings. [71] Further conversation then took place between Mr Bakir and Ms Doueihi which led to their agreeing that a reconciliation report and weekly payment would be made by Mr Bakir to Ms Doueihi for all connections sold to members of the public by Ms Doueihi under the respondents’ dealer codes. This was also reduced to writing by Mr Bakir who signed the acknowledgement which Mr Shneider witnessed. Mr Bakir also orally agreed with Ms Doueihi that she could keep the BMW for a little longer. [72] Despite numerous requests by Ms Doueihi, neither Mr Bakir nor any of his companies delivered any of the outstanding stock to her. On 2 August 2001, Mr Shneider wrote to the respondents’ solicitors with regard to the respondents’ non-compliance with the orders made by Douglas J. With regard to the stock he said: “Your client has only delivered one half of the stock to which our client is entitled. He stated, in the presence of the writer, that she -- 27 of 45 -- 28 could order stock to her order through him as to the balance and this would be supplied within 14 days of that date, which we note was 20 July 2001. Our client has forwarded lists to your client which have not been filled, nor even acknowledged.” [73] In respect of these and other alleged failures to comply with the consent order, the applicant’s solicitor said that unless the respondent made genuine attempts to comply with the orders, they would have to bring him before the court without further notice. On the following day, referring to a further breach, the applicant’s solicitors said they were seeking instructions from her to initiate contempt proceedings. On 10 August 2001, the applicant’s solicitors again wrote to the respondents’ solicitors complaining of the respondents’ failure to comply with their obligations pursuant to the orders and undertakings given to the court. [74] A response to the letter of 2 August was received on 6 August 2001, when the respondents’solicitors wrote: “4. We acknowledge receipt of the stock request prepared by your client and this has been onforwarded to Mr Bakir. Our client instructs that he is unable to fulfil your client’s request. Put simply, our client is running very low on stock. As you are aware, the stocktake has shown that he held significantly less stock than that which he thought was available. Our client appreciates that he has given a warranty with respect to the level of stock and notes that he has yet to provide your client with stock totalling approximately $60,000. Mr Bakir instructs that he cannot do this at the moment. Further, we are instructed that our client is on stop credit with several suppliers and cannot physically obtain stock on credit. 5. Our client has taken the burden of all trade creditors and other payables as you are aware. With the burden of all of these creditors, our client proposes that your client receive money in lieu of stock out of the proceeds of sale of the real properties. Our client cannot provide any other solution to this difficulty, however trusts that this will ensure that your client receives that which she is entitled to.” [75] On 7 August 2001, the applicant’s solicitors sent a letter by facsimile transmission to the solicitors for the respondents setting out a number of problems which had arisen in the respondents’ compliance with the consent order. With regard to stock, they said: “Stock (1) Our client has now run out of most saleable stock. (2) Your client has refused to supply her with stock as requested despite the fact that he has had such stock on hand. -- 28 of 45 -- 29 (3) Our client has already sent an order by fax and email. In view of the delay our client now needs double the quantity listed. (4) In the interests of dealing fairly, your client should provide a reasonable level of good and saleable stock in view of the shortfall which has occurred. We point out that such shortfall has always been within your client’s control as he has been trading and selling stock since the 13th July. (5) The further stock is required by 3pm today.” [76] On 8 August 2001, the solicitors for the respondents replied in the following terms: “Our client warranted the stock level at $280,000, plus or minus 10%. It appears that the stock level was actually in the sum of approximately $170,000, some $110,000 less than that warranty. Our client appreciates the meaning of the warranty and we therefore must work on a minimum stock level of $252,000. Our client instructs that your client has received stock to the value of $65,057, thus far. In the circumstances, our client owes yours stock to the value of $60,943. Our client does not have sufficient stock to provide to your client. Our client proposes that your client receive the sum of $60,943 from our client upon the sale of the properties. This can take place by way of the necessary adjustments when the trustees are distributing funds pursuant to para 4 of the Order. Please let us have your confirmation that your client is agreeable. We take this opportunity to remind you that your client has yet to provide the 2 lists as were required by the Order. Your client prepared something different, which in the spirit of compromise our client worked to.” This was a further proposal for a means of complying with the order. There is no evidence that it was accepted. The accusation that the applicant had not provided two lists is spurious. As has been set out, the two lists were provided. A third list was created only to record the extra when there was an odd number of items. [77] On 9 August 2001, Ms Doueihi wrote to Mr Bakir in the following terms: “I have made numerous attempts to order stock from you over the last 2 weeks with no success. I am unable to continue operating the business without stock, for which you are well aware of. I handed over the resignations and transfers of the companies in good faith as you promised to provide stock as I ordered. The position you have left me in is unfair and cruel. I have no means to purchase stock from suppliers as I have no funds. I have done over twenty-five thousand dollars worth of connections to date, using the Crazy Ron’s dealership. You continuously promise to pay me for the connections you have been paid for since last Friday, however I have still received nothing.” [78] On the same day, Mr Shneider asked Mr Hassan and Mr Ellaz for stock that Ms Doueihi had requested on many occasions. Mr Ellaz advised that Mr Bakir -- 29 of 45 -- 30 simply did not have any stock available to him, that he had virtually run out of stock. Mr Hassan confirmed this and said that there was no stock available for Ms Doueihi. Mr Shneider then rang Ms Doueihi and advised her that the representatives of the first respondent had informed him there was no stock available which could be delivered to her. [79] Ms Doueihi then asked Mr Shneider to hold and listen on the telephone while she made a call to a Crazy Ron’s Call Centre. He heard her speaking and heard an indistinct voice replying to her comments, which he presumed was from someone she had telephoned. That person identified himself as Derek. Ms Doueihi pretended to be a prospective customer by the name of Sonia. Mr Shneider heard Derek say to her that the stock which she ordered was readily available and she could come and collect it any time. Mr Shneider heard Ms Doueihi say to Derek that she would be grateful if he would fax confirmation to her at a fax number which is the fax number of Ffrench Commercial Lawyers, namely 07 5591 7450. [80] Mr Shneider received a fax from Derek of Crazy Ron’s Call Centre at approximately 4.30pm on that day. The contents do not refer to specific items of stock but the existence of this document supports the evidence given by and on behalf of the applicant, which was not denied by the respondents, that such a telephone call took place where an employee or agent of the respondents represented that they had stock readily available contrary to the representation made by Mr Ellaz and Mr Hassan. This suggests that Mr Ellaz and Mr Hassan, speaking on behalf of the respondents, were being deliberately untruthful. [81] Ms Doueihi herself again asked for the stock on 11 August 2001, pointing out the damaging effect on her business: “ I have requested stock for both of my shops that are needed for customers. Once again you continue to ignore all attempts of mine to gain product from you. It is now at a point were [sic] I will be closing the shops in the following week as I cannot trade with no goods. As you know reputation is everything in business, and I am getting a bad reputation with my new customers, as I am unable to get them phones or accessories. I am also loosing [sic] sales to walk-ins because I do not have what they need there and then, people these days will not wait for a product. I have been forced to send 80% of all walk-ins to your stores and I only do this because I prefer that one of us get the sales and not another mobile phone store. All of this is unacceptable, I am trying to get on with my life and run my own company. I am requesting once again that you pay all commissions owed to me and deliver the stock that I have ordered over the past few weeks.” Ms Doueihi says, and I accept, that Mr Bakir has not, despite many requests, provided any of the stock which has remained owing to her. She has been in urgent need of this stock and was unable to run her businesses properly without it. As a consequence, she has lost many sales. -- 30 of 45 -- 31 [82] The respondents submitted that a subsequent agreement made between the parties has the effect of precluding the enforcement by contempt proceedings of that part of the order. The court will not lend its coercive power to enforce terms of an agreement made between the parties which are not incorporated as undertakings or orders by the court. [83] An example of this is found in Melksham v Fraser Island Barge Transport Pty Ltd.39 The court had granted interlocutory injunctive relief in January 2001. In February, the parties compromised the whole action by providing that, notwithstanding the injunction made in January, the defendants were at liberty to engage in certain specified conduct which would otherwise be in breach of the order. In September, the plaintiffs applied to have the defendants dealt with for contempt of the January order. Moynihan J held that the February agreement, which compromised the action, regulated the relations between the parties from that date. His Honour held that it specifically varied the rights of the parties given by the January order and the court could not, in the circumstances, enforce the order of the court made in January. [84] The applicant in this case submitted that the obligation under paragraph 6(c) of the consent order was that stock be shared equally. The mechanism for that was not obligatory. The parties resolved to do it more simply. The applicant’s submission that that the parties intended this revised procedure to be in satisfaction of court orders and not in place of it is borne out by the correspondence between the solicitors to which I have referred. [85] In my view, the evidence gives rise to the inference that the further arrangements made between the parties were a means of giving effect to the obligation to share the stock equally rather than the substitution of a new obligation. The respondents have failed to comply with their obligation and the deliberateness of their conduct may be seen from the fact that they lied to the applicant about the availability of stock and continued to trade on taking the full commercial advantage of the situation, which they denied to Ms Doueihi. [86] I am satisfied, beyond reasonable doubt, that the respondent deliberately breached the second obligation found in paragraph 6(c) of the consent order. Charge 4 - database [87] In paragraph 5(b) of the amended application, the applicant seeks an order that the first respondent be committed for contempt for denying the applicant access to the database in breach of paragraph 6(d) of the consent order. Further, in paragraph 21(a) of the amended application, the applicant seeks an order that the second respondent be fined for its contempt of court in denying the applicant access to that database. [88] Paragraph 6(d) of the consent order provides that: “The Plaintiff and the First Defendant each have access to the Service Providers database maintained for connections to 13 July 2001 [by] the Second, Fourth and Fifth defendants.” 39 [2001] QSC 441, No S673 of 2001, 22 November 2001. -- 31 of 45 -- 32 This was one of a number of the conditions, found in paragraph 6 of the consent order, of the transfer of the businesses of the corporate respondents to the applicant or the first respondent on a walk in/walk out basis. It apparently cast an obligation on the second respondent, who was a party to the consent order, and its controlling mind, the first respondent, to provide access to the relevant database to the applicant. The duty to comply with the obligation arose immediately upon the making of the consent order. The obligation and its timing should have been unambiguous but there are nevertheless a number of unsatisfactory features to this order. The order does not specify when the respondents should provide access or precisely what was meant by the “Service Providers database”. [89] In the request for particulars of the charge with regard to paragraph 5(b), the respondents asked the applicant to identify the database referred to and specify the date, place and manner of the denial referred to. With regard to paragraph 21(a), the respondents, in addition to the same request, also asked the applicant to specify which of the second to sixth respondents denied the applicant access to the databases alleged therein and the identity of the person who acted on behalf of the corporation specified. It should be noted, however, that the charge can only be made out against the first and second respondents. [90] In answer, the applicant said that the database referred to is “a spreadsheet of all mobile telephone connections made by the Second Defendant on behalf of customers of that company since 1994.” The database is maintained on computer and shows the name of the customer, the number of the mobile service which they had acquired, serial number of the handset which they had purchased, the serial number of the mobile service providers’ network access plan which had been purchased, the accessories the customer purchased and the representative who made the sale. The particulars also said that the denial is to be inferred from the fact that the first respondent, acting on his own behalf and on behalf of the second to sixth respondents, has never provided access to the database. It is said that requests for access to the database are set out in the affidavit of J R M Ffrench filed 28 August 2001 at paragraphs 12 and 13 and the Affidavit of J R M Ffrench sworn 23 October 2001. [91] Paragraphs 12 and 13 of Mr Ffrench’s affidavit, which was sworn on 28 August and filed 29 August 2001, provide: “12. Exhibit “JRMF2” to this my affidavit deals with this matter at page 2 under the heading “Database and Connection Contracts”. It states that on July 20 2001, the Solicitors for the Plaintiff stated that the database would be downloaded to disk and provided in the following week. This had not occurred by the date on which the exhibit was written and transmitted, 7 August 2001. 13. Now produced and shown to me and marked with the letters “JRMF7” is a true copy of a facsimile dated 7 August 2001 sent on that day by Solicitors for the First Defendant to solicitors for the Plaintiff. This letter acknowledges receipt by e-mail from Solicitors for the Plaintiff of what purported to be the database. This was unreadable. McCullough -- 32 of 45 -- 33 Robertson were arranging for a legible database to be forwarded.” It would appear that the reference to Exhibit JRMF2 in paragraph 12 of the affidavit is in error. Exhibit JRMF2 is a letter from the respondents’ solicitors to the applicant’s solicitors. Exhibit JRMF3 is a letter from the applicant’s solicitors to the respondent’s solicitors dated 7 August 2001. On page 2, the letter refers to database and connection contracts. [92] The affidavit sworn 23 October 2001, exhibits a letter sent by Mr Ffrench to the respondents’ solicitors by facsimile transmission on 20 July 2001. All of these documents will be referred to again in more detail during my narration of the facts of this matter. [93] Prior to the consent order, the solicitors endeavoured to reach agreement about what was meant by the word “database”. On 20 July 2001, the applicant’s solicitors sent a letter by facsimile transmission, stating: “The Orders permit our respective clients to have equal access to the “database”. We understand this comprises both computer records and hard copy connection contracts together with information held by the service providers. Could you please verify that our understanding is correct. If so, could we suggest that any computer records should be downloaded to disk and provided to our client. If a service provider cannot do so, it should provide a hard copy printout of its data.” [94] By letter dated 20 July 2001, the respondents’ solicitors set out their understanding of this part of the order: “We agree with your assertion that the Order permits your client to have access to the computer records and hard copy connection contracts. A copy of the database will be downloaded to disk and provided to your client next week. Our client cannot organise for someone to oversee the photocopying this weekend, however, anticipates being able to do so from 9.00am next Tuesday. We trust this assists.” The database is more than the database of connections supplied by the service providers which, as Mr Cook confirmed in his evidence, is very similar to the airtime reports which are the subject of a different paragraph of the order which has already been dealt with. It is the computer records held by the second respondent which relates to information held about customers. However, the order refers to the service providers’ database which was not defined. There does not seem to be a common understanding as to precisely what this meant. Although an undertaking must be construed “in the factual matrix which was known to both parties,”40 as I have previously observed, an order or undertaking must be clear and unambiguous to be enforced. 40 S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358 at 387; Evenco P/L v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) (supra) at [58]; The Karen Oltmann (supra). -- 33 of 45 -- 34 [95] It does not appear that the respondents at any time thought, as they now submit, that the order did not require them to take any positive steps. It obliged the second to fourth respondents, through their controlling mind, to provide access to the database to the applicant. On 25 July 2001, the respondents’ solicitors in a letter to the applicant’s solicitors said that it had been proposed that Ms Doueihi would collect the database and connection contracts from 9.00am on Tuesday, 24 July 2001, but she had not done so. They then said, “Please advise when your client wishes to collect these documents and our client will do everything to assist.” [96] Ms Doueihi disputed the assertion that it had been arranged that she would collect the database and connection contracts. In a reply dated 26 July 2001, the applicant’s solicitors said: “No firm arrangement was made in relation to photocopying. Your para 4 of your facsimile of 20 July 2001 stated that your client “anticipates being able” to organise someone to oversee the photocopying from 9:00am the following Tuesday. When can the photocopying be done? We also note from your para 4 that your client would provide a copy of the database on disk. When will this be done?” [97] On 30 July 2001, after the consent order had been made, Ms Doueihi and Mr Bakir discussed the database which was the subject of the consent orders in the presence of Mr Shneider. Mr Bakir said that he would ensure the complete database would be delivered by Mr Ellaz to Ms Doueihi’s Mermaid Beach store. At this stage it was close to 5.00pm and Mr Ellaz said to Ms Doueihi that he would deliver her stock to her first, then come back and later that day deliver the books of documents which made up the database. The promised access to the database did not occur. [98] On 1 August 2001, Ms Doueihi wrote to Mr Bakir seeking his compliance with the consent order including access to the database by 1.00pm on the following day. [99] On 2 August 2001, when Mr Shneider wrote to the respondents’ solicitors with regard to non-compliance with the court orders, he gave as an example that the applicant had still not received the database. [100] On 7 August 2001, the applicant’s solicitors sent a letter by facsimile transmission to the respondents’solicitors reminding them that on 20 July 2001, the solicitors for the respondents had sent a letter by facsimile transmission to the effect that a copy of the database would be downloaded to disk and provided to the applicant in the following week. The disk had not been provided nor had the information been forwarded by email. They said that it should be handed over or emailed on that day. [101] Until and including 9 August 2001, Ms Doueihi telephoned Mr Bakir every day except Sundays both on his mobile telephone and at Crazy Ron’s requesting access to the database and the folders of contracts. Almost every day he agreed to deliver them to the Mermaid Beach Store but they were never delivered. [102] Ms Doueihi had not had access to the database by the time of swearing her affidavit on 28 August 2001. -- 34 of 45 -- 35 [103] On 31 August 2001, at the commencement of the hearing of this application in this court before another judge, the respondents’ solicitor handed to the applicant’s solicitor what appears to be the databases of both RSL.com and Vodafone. [104] The database which the applicant apparently intended to be referred to in the order is a database maintained by Crazy Ron’s of all connections made with customers since 1994. This database is in the form of spreadsheets which showed the invoice number, date, the name of the customer, a description of the purchase made, the serial number of the handset or the barcode of the item purchased, the serial number of the mobile carrier’s plan to which they had subscribed and notations as to the amount which they had paid, the accessories they had acquired, the method of payment, the carrier revenue (being the expected rebate, commission, bonuses and reps commission), the net profit and the place where the sale was made. An example of such a spreadsheet is exhibit 17. This record has always been in the possession of the first and second respondents. However, the order does not in terms refer to this database but to the service providers’database. [105] On 4 September 2001, the first respondent’s solicitor asserted by letter that they had delivered to Mr Shneider two computer printouts representing the databases of Vodafone and RSL.com. The first respondent authorised the applicant to contact the networks directly to obtain such further information as she required. There was no time specified in the order within which the service providers’ database was to be provided. Although the respondents’ behaviour is open to serious criticism, I could not be satisfied to the requisite standard that he should be convicted of contempt for breach of this order. Supplementary orders stating more precisely the obligations of the respondents would be necessary before contempt findings could be made. Charge 5 – connection contracts [106] In paragraph 5(c) of the amended application, the applicant seeks an order that the first respondent be committed for contempt for denying the applicant access to all connection contracts to 13 July 2001. Further, in paragraph 13(b) of the application, the amended applicant seeks an order that the second to sixth respondents be fined for their contempt of court in denying the applicant access to the connection contracts. [107] The obligation of the respondents arises under paragraph 6(e) of the consent order. Paragraph 6(e), which was another of the terms of the transfer of the businesses, provides that: “The First Defendant have access to all connection contracts to 13 July 2001 for a period of 30 days from the date hereof under the supervision of a servant or agent of the Plaintiff to copy such of the contracts as she may desire and at her expense.” [108] The request for particulars with regard to the allegation against the first respondent asks the applicant to: “(i) Identify the connection contracts referred to therein; (ii) Specify the date, place and manner of the denial referred to therein.” -- 35 of 45 -- 36 In addition, with regard to the second to sixth defendants, the applicant was asked in paragraph 10(ii) of the request to specify which of the second to sixth respondents denied the applicant access to such connection contracts as alleged therein and the identity of the person who acted on behalf of the corporation specified. [109] In the particulars given, the connection contracts are said to be “the contracts entered into by the Second, Fourth and Fifth Defendant with each customer who purchased a mobile telephone handset or mobile telephone network access plan since the Second Defendant commenced business in 1994, up to and including 13 July 2001.” The denial is said to be inferred from the fact that neither the first respondent, nor any of the second to sixth respondents, has ever provided access to the connection contracts. [110] While the order is permissive in its terms, it necessarily imposed a negative obligation not to deny permission and to act reasonably in allowing access to the information. [111] The respondents submitted that the applicant’s evidence as to the refusal of access to the connection contracts, did not identify any occasion upon which the applicant attended at the respondents’ premises “to obtain access in the way in which conventionally it might be expected that access would be had under an Order in these terms.” They referred to Federal Commission of Taxation v Australia and New Zealand Banking Group Ltd41 in support of a submission that access conventionally means the right to enter a building and examine the documents. But that decision related to the terms of s 263 of the Income Tax Assessment Act 1936 and does not assist in determining how access was to be provided to the connection contracts in this case. [112] On 30 July 2001 at the Surfers Paradise office of Crazy Ron’s, Mr Bakir told Mr Shneider and Ms Doueihi that all of the folders of connection contracts, approximately 60 folders in all, would be delivered that day to her Mermaid Beach store. This is clear evidence of his control over the connection contracts. The delivery was to be made by Mr Ellaz. Ms Doueihi waited in the store until 10.00pm. The folders were not delivered. She telephoned Mr Bakir and asked for the folders. He said she was not to receive any folders in any circumstances and abruptly terminated the conversation. The respondents did not deny the conversation and his behaviour but submitted that the terms and context of that conversation fell short of establishing a categorical denial of access to the contracts. It is difficult, however, to see in what other way it could be characterised. It was an explicit refusal of access. It is also telling evidence of the wilfulness of his conduct. [113] As previously noted, Ms Doueihi wrote to Mr Bakir on 1 August 2001, requesting him to make available “all folders for all connections from September 1995 to 13 July 2001, for link communications, first direct, RSL.com, Vodafone and Newtel; pursuant to the court orders ... .” [114] On 6 August 2001, the respondents’ solicitors wrote to the applicant’s solicitors with regard to the connection contracts in the following terms: 41 (1979) 143 CLR 499 at 524. -- 36 of 45 -- 37 “The client contracts have been available for your client’s copying since 17 July 2001. In any event, our client will organise for an employee to attend at the Mermaid Beach store commencing at, say, 4.00pm today, when 3 folders will be taken down for photocopying by your client. As previously agreed, our client’s staff member will stay to oversee the photocopying of the documents. Thereafter, the staff member can return to the Crazy Ron’s head office and collect further folders for photocopying periodically until all copying is completed. This obviously will taken [sic] place at some expense to our client and our client expects that your client will cooperate by using her best endeavours to photocopy the documents quickly.” [115] On 7 August 2001, the applicant’s solicitors wrote to the respondents’ solicitors by facsimile saying, inter alia: “(4) Contrary to your assertion in your facsimile of the 6th August 2001, the client contracts have not been available for copying since 17th July 2001. (5) We refer you to your own correspondence of the 20th July when you state that “Our client cannot organise for someone to oversee the photocopying this weekend, however, anticipates being able to do so from 9am next Tuesday”. (6) The Orders provide that our client must have access to all connection contracts for a period of thirty days from the 27th July. Your client has refused to grant that access. (7) Your client’s offer to deliver three folders to our client’s premises yesterday at 4pm is unacceptable and does not comply with the Order. In any event, your client failed to deliver them. (8) Our client requested the files to be made available last weekend, but your client refused to do so. (9) If your client is concerned about security, the files may be delivered to this office and we will undertake to hold them for your client and not to release them to our client except for inspection and copying within this office. (10) Your client may have a representative present during any time which our client has access to the documents, normally after 6pm. (11) Your client has offered to deliver the files to our client. That should be done by 6pm today, either to our client or our office.” In the same letter, the applicant’s solicitors said that the BMW was being held by them. They also put the respondents on notice in the following terms: -- 37 of 45 -- 38 “We are instructed to put you on notice that unless your client rectifies the outstanding matters detailed above by 5pm today (unless otherwise stated in this letter) then proceedings for contempt of court will be issued.” [116] Later on the same day, the solicitors for the respondents said that Mr Bakir would deliver the folders of client customer contracts, 10 folders at a time, to the office of Ffrench Commercial Lawyers to be copied by Ms Doueihi at her expense at her solicitors’ offices on the undertaking provided in the facsimile sent to Ffrench Commercial Lawyers earlier on that day. In a letter of that date sent by facsimile transmission at 12.47pm, the respondents’solicitors said: “… our client proposes that his agent attend at your office with 10 folders at a time, commencing at say 2.00pm today. Please confirm the vehicle will be exchanged today.” Ms Doueihi said, when cross-examined on this topic, that the proposal to have the documents, ten folders at a time, would not work because she would have to have staff available to photocopy them at various times whenever they were delivered. In any event, neither Mr Bakir nor his agent delivered the folders in accordance with his proposal. [117] The respondents submitted that it was “plain that what [the applicant] regard[s] as entailed in the concept of ‘access’ under the Order was an obligation on the part of the Respondents to physically deliver to her the documents and permit her to retain them for her own purposes.” That this submission cannot be sustained is shown by the fact that on 8 August 2001, Ms Doueihi’s solicitors wrote to Mr Bakir’s solicitors saying their client’s offer was not satisfactory, asking for access to all of the connection contracts with what appears to be a practical suggestion as to how that could be done at the respondents’premises out of business hours. [118] On 9 August 2001, the respondents’ solicitors responded to that proposal as follows: “A batch of 10 files are being delivered to your office today for inspection and copying by your client on your undertaking to oversee such inspection and copying and to retain the files in your office until collection by our client’s agent. Upon notification that the files are available for collection, a further batch of 10 files will be delivered on the same basis with this procedure to be updated until all files have been copied for your client. Please understand that these documents are business records to which our client or his employees often refer. Your client’s assistance in a timely turnaround of the documents is requested. We note your client’s proposal that she attend at our client’s business premises to photocopy the documents. This is neither practical, due to the hours proposed (out of the ordinary business hours) nor desirable (given the level of animosity involved in this matter).” [119] On Thursday, 9 August 2001, Mr Ellaz and Mr Hassan attended Mr Shneider’s office by appointment. The appointment had been arranged earlier between Mr Wedgwood, solicitor for the respondents and Mr Shneider. Mr Hassan and Mr Ellaz were there on instructions from Mr Bakir. Mr Hassan pulled a wad of bank notes from his pocket and told Mr Shneider that there was approximately -- 38 of 45 -- 39 $3,500 which he could have for Ms Doueihi if Mr Shneider would release the BMW motor vehicle which was the subject of the consent order. He said it was in part payment for the commissions claimed by the applicant. Mr Hassan gave Mr Shneider’s secretary a handwritten receipt for her to type out. Mr Hassan was aggressive and said that if Mr Shneider did not take the cash, nothing would be paid to the applicant. Because of Mr Hassan’s aggressive attitude, Mr Shneider told him that he would not be stood over by someone like him and told him that if this remained his attitude, he could leave immediately. Mr Shneider is a sixty-one year old man who was being bullied in a threatening manner by a much younger, fitter man. [120] Mr Shneider contacted Ms Doueihi. He advised her that Mr Hassan and Mr Ellaz were present at his office on instructions from Mr Bakir to collect her BMW motor vehicle. He said to her, “I have Hardi Ellaz and Assam Hassan here and they have $3,500 in cash which they will give me if I release the car.” She asked him if they had the things with them. By “things” she meant folders, the database, stock and the money for the connections she had done pursuant to the consent order. He replied that they did not. Mr Shneider asked Mr Hassan to speak to Ms Doueihi and handed him the handset of the telephone. She then spoke to Mr Hassan. She asked him whether he had the stock, the folders and the database with him. He said, “No, I have $3,500 cash, you take this or you take nothing”. He then said to her that he had the folders for her. He said he would drop them off at her office, however, he had to have them back at his head office by 5.00pm. The applicant recalls that the time of this conversation was approximately 4.15pm. She asked him if he was joking. He said, “No, this is the way it goes.” [121] Ms Doueihi then instructed Mr Shneider that unless she received some stock that afternoon, plus a promise of folders of contracts, he was not to release the car to the representatives of the first respondent, and he so advised Mr Hassan and Mr Ellaz. [122] Mr Hassan then advised Mr Shneider that he was prepared to deliver 10 folders to Ms Doueihi at the Mermaid Beach store, but said that those folders could only remain on the premises until 5.00pm and he would then remove them until another day. He did not promise to provide any on the following day. Mr Shneider pointed out to him that it was already 4.15pm, that it would take him some time to get the folders to Ms Doueihi at Mermaid Beach, which would mean she would only have them for a matter of minutes. Mr Shneider said that Mr Hassan did not appear to have any folders with him. Mr Shneider told Mr Hassan that the effect of the consent order was that the applicant had access to the information for 30 days. He replied: “That’s bad luck, she can have them the way I say or not at all.” [123] Mr Shneider told Mr Hassan and Mr Ellaz that they could not take the BMW car, whereupon Mr Hassan placed the cash back in his pocket and said he was not prepared to leave the cash. Mr Shneider then told them that there was no purpose in their remaining on the premises, and asked them to leave. They left at approximately 4.20pm. Shortly afterwards, when Mr Shneider checked, the BMW had been removed by persons unknown. No folders of connection contracts were delivered. -- 39 of 45 -- 40 [124] On 13 August 2001, the respondents’ solicitors wrote to the applicant’s solicitors about the visit by Mr Hassan and Mr Ellaz to the offices of Ffrench Commercial Lawyers showing the deepening mistrust and hostility which had grown between the disputants: “In the meantime our client instructs that your client has again, contacted him by way of facsimile correspondence. Your client has made complaints concerning the issues of stock and payment of commission. For the record, we note that our client’s brother attended at your offices last Thursday when he attempted to pay over the sum of approximately $3,500 representing the first rebate commission owing to your client. We note the amount was tendered in cash monies so as to facilitate its quick payment to your client. We note that the payment was rejected and that your client offered a message to ours, which we shall not reproduce in this correspondence.” [125] The reply by Ffrench Commercial Lawyers was pointed: “We are instructed as follows: 1. Your client’s account of his agents’ visit to this office is untrue in a number of respects. 2. Nothing was said or done by any member of this firm to indicate that your client was not required to comply with his obligations under the Consent Orders. 3. Following the visit of your client’s agents, the BMW motor vehicle was removed from our premises without our knowledge. Would you please confirm that your client has custody of the vehicle. If he does not, he should immediately report to the police that the vehicle has been stolen and notify his insurers. 4. Your client still fails to comply with his obligations under the Consent Orders. 5. As your client well knows, our client does not have adequate financial resources and was relying on the payments which your client was obliged to make. 6. His failure to make those payments has made our client’s financial position even more perilous. This has been exacerbated by a break-in to our client’s Mermaid Beach store last weekend when equipment was damaged and her personal effects and connection contracts were stolen. May we assume that your client will now comply with his obligations immediately?” -- 40 of 45 -- 41 [126] The respondents made no further attempts to provide access to the connection contracts until after this application was filed. By letter dated 4 September 2001, the respondents’solicitors again addressed the issue: “Our client remains willing to deliver the connection contracts for your client’s inspection on the following basis: (a) our client proposes delivering the connection contracts in batches of 10 folders at a time; (b) our client seeks your cooperation in making the folders available for your client’s inspection at your offices, on the basis that the documents not leave your office, save when collected by our client. We note that you have proposed an inspection previously, which proposal was subsequently withdrawn; (c) you will note our client is not required to deliver the documents to any place, however he makes this proposal in an attempt to resolve the issue quickly and amicably.” [127] Ms Doueihi has not any time had access to any of the connection contracts other than about six folders left at the Labrador store when she took over. The connection contracts are required because they are a valuable resource in relation to chasing further business leads. The connection contracts are used in connection with the airtime commission payments to enable Ms Doueihi to contact customers in relation to business needs resulting from their mobile phone usage. It is only with the records contained in the connection contracts that she can locate and contact these people. The respondents having possession of these contracts, gives them a business advantage over the applicant. [128] On 10 October 2001, the respondents finally made arrangements for all folders containing connection contracts to be accessible at their solicitors’ office at the Gold Coast for inspection by Ms Doueihi, upon one hour’s notice during normal business hours. Mr Bakir had authorised a representative of his solicitors to oversee any copying required by Ms Doueihi which might be carried out at the solicitors’ office or a nearby commercial copying centre, at her choice. [129] Until then, access to the connection contracts was refused. The first and second respondents had been obliged to provide that access for the 30 days from 27 July 2001 and this they failed to do. The denial of access was deliberate. [130] The connection contracts were finally produced by the second respondent on 24 October 2001, in answer to a subpoena. [131] I am satisfied beyond reasonable doubt that the first and second respondents deliberately denied the applicant access to the connection contracts in breach of the consent order. Were the breaches intentional? -- 41 of 45 -- 42 [132] The breach of an order will not constitute contempt unless it is wilful and not casual, accidental or unintentional.42 [133] Mr Ffrench deposes to the numerous attempts made by him and his staff to gain compliance by the first respondent with his obligations and duties under the undertakings and orders. He refers in particular to letters from Ffrench Commercial Lawyers dated 2, 3, 6, 10, 13, 15 and 21 August 2001, the contents of which, where relevant to particular issues, have been referred to in these reasons. In those letters Mr Ffrench or Mr Shneider expressed continuing disquiet about the respondents’ failure to comply with various orders and undertakings. [134] On 27 August 2001, Mr Shneider asked Mr Wedgwood, solicitor for the respondents, whether he had instructions to accept service of contempt proceedings. [135] In addition to the matters already referred to, the behaviour of the first respondent, which shows the wilfulness and contumacy of his disobedience, is shown by the following actions: 1. The first respondent’s conduct at the meeting of 30 July 2001 with Ms Doueihi and Mr Shneider, was calculated to obtain the removal of Ms Doueihi as director and shareholder of the second to fourth respondents, in spite of the first respondent’s failure to comply with orders. 2. The first respondent made promises to comply with orders which he did not keep. For example: • on 30 July 2001, he promised to deliver the connection contracts to Ms Doueihi that evening but, when contacted by her that evening, he told her she was not to have them under any circumstances; • on many other occasions, Mr Bakir told Ms Doueihi that he would give her access to the connection contracts but he did not provide that access; • on 9 August 2001, Mr Ellaz, on behalf of the first respondent, made it clear to both Ms Doueihi and Mr Shneider that access to the connection contracts would be on the first respondent’s terms or not at all; • Mr Bakir unilaterally attempted to impose conditions in respect of his compliance with the order by attempting to deliver limited numbers of the contracts and for a limited time; • despite, on 30 July 2001, affirming his obligation to deliver stock to a value of $65,057, none was ever delivered. Claims were made that there was no stock available which were untrue. No reason was offered to the applicant or the court to suggest any genuine difficulty in complying with the obligations the subject of the charges. The respondents were made aware that the applicant would bring contempt charges if the orders and 42 Australasian Meat Industry Employees’Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 113; Madeira v Roggette Pty Ltd [1990] 2 Qd R 357 at 363, 366; Stewart v Gymboree Pty Ltd (Supra) at [35]; Evenco P/L v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) & Ors (supra) at [32]. -- 42 of 45 -- 43 undertakings were not complied with and yet he continued in his failure. His failures were contumacious and deliberate. [136] In addition to the complaints about failure to abide by these particular undertakings and orders, the applicant also alleged that the respondents failed to comply with money orders including the payment of commission and the order made by Moynihan SJA on 24 August 2001. While these alleged breaches cannot be the subject of contempt proceedings for reasons set out in my decision on the no case submission, Mr Bakir’s actions may provide some insight into the respondents’ behaviour and whether any breaches which might be found were wilful or accidental or unintended. [137] On 8 and 10 August, the solicitors acting for the applicant and the respondents wrote to the relevant service providers informing them that airtime commissions should be paid into the trust account of Ffrench Commercial Lawyers. However, Mr Ffrench has sworn in an affidavit filed on 29 August 2001, that no commissions had been paid into that account by that date. It appears that moneys were in fact paid directly to the first respondent.43 The commissions payable include commissions on sales of mobiles phones with new connections, plus airtime commissions for actual use of the mobile phone less “clawback” for disconnections. The two types of commissions were the subject of separate monthly payments from each service provider. Without the airtime reports and database, it has not been possible for the applicant to calculate precisely how much commission she is owed. [138] It appears that Mr Bakir has co-operated with the receivers appointed by the court on 24 August 2001. On 10 September 2001, he sent a letter to the receivers which was addressed to RSL.com directing future airtime commission payments “for connections dated pre 13th July 01” be paid to the receivers’trust account. [139] Mr Bakir has sworn an affidavit in which he deposed to the amount owing to Ms Doueihi. On 25 September 2001, the receivers appointed by this court calculated that approximately $70,000 was due and payable to Ms Doueihi in respect of commissions. In denying liability for this amount, Mr Bakir nevertheless admitted liability in the sum of $44,211.94. The relevant paragraph of his affidavit, which had been filed by the respondents, was read by the applicant. In final submissions, the respondents’ counsel conceded that the applicant was owed $10,551.90 in unpaid commissions. Exhibited to Mr Downie’s affidavit is a copy of what purports to be an irrevocable authority from Mr Bakir directing that that sum be paid to Ms Doueihi from his share of the proceeds of sale of the property at Albatross Avenue. [140] The respondents rely on an affidavit by Mr Mancini filed by leave on 8 November 2001, as to the amount of commission paid by RSL.com to the second respondent. He calculates the net rebates on the Labrador and Mermaid Beach stores between 31 July and 17 August 2001 at $24,201.00 and the airtime commission payments as $24,101.60. He has not calculated other rebates and payments in respect of connection contracts made after 13 July 2001. 43 Letter from McCullough Robertson to Ffrench Commercial Lawyers dated 7 August 2001. -- 43 of 45 -- 44 [141] Ms Doueihi alleges that she has received no payments for air time commissions or other commissions or the money order made by Moynihan J. When she rang Mr Bakir on 21 August 2001, to tell him in some distress about the difficulties she was experiencing as a result of his failure to comply with the court orders, he said: “I offered you some money and you wouldn’t take it so its too fucking bad, go eat shit and die … You are getting nothing from me.” [142] When she asked if she would have to take him back to court, he said, “Fuck the Court, take me to Court, I guess I’ll see you in the Court.” His attitude of contemptuous disregard of orders made by the court is obvious. [143] In my view, Mr Bakir consciously defied orders of the court and refused to comply with undertakings he had given on behalf of himself and his companies. I am satisfied, beyond reasonable doubt, that as at 28 August 2001, the date the application was made: 1. the first, second and third respondents wilfully failed to comply with an undertaking given to the court on 27 July 2001, in that they have not provided all copies of airtime reports to the applicant or her nominee within 48 hours of receipt of the same; 2. the first, second, third, fourth, fifth and sixth respondents have deliberately prevented the applicant from taking an equal share of the stock in breach of paragraph 6(e) of the order made by Douglas J on 27 July 2001; 3. the first, second, third, fourth, fifth and sixth respondents wilfully denied the applicant access to all connection contracts to 13 July 2001, for 30 days from 27 July 2001 in breach of paragraph 6(e) of the order made by Douglas J on 27 July 2001. [144] Mr Bakir and the corporate respondents should be punished for that contempt, not just to satisfy the private interests of the litigants, but to vindicate the authority of the courts. As McLelland J held in Jendell Australia Pty Ltd v Kesby:44 “The purpose of the imposition of sanctions for criminal contempt is the protection of the public interest in the due administration of justice, including the vindication of the authority of the courts: in such a case the sanctions are of a punitive nature.” Compensation [145] As referred to earlier in these reasons, r 900(3) and (4) provide that the court may award compensation to a person who has sustained a loss because of another party’s breach of an undertaking. [146] In this case, the applicant has clearly suffered loss firstly from the respondents’ failure to comply with money orders, secondly, from the respondents’ breach of orders and thirdly, from breaches by the respondents of undertakings given to the court. It is only for that last category that compensation can be awarded in this 44 [1983] 1 NSWLR 127 at 133. -- 44 of 45 -- 45 application. The failure to provide the airtime reports is the only charge which relates to a breach of an undertaking. [147] As a consequence of this loss and damage Ms Doueihi now faces financial difficulty which may cause the failure of her business. Her financial problems include a chronic shortage of cash, an inability to purchase stock, pay the bond on electricity supply, pay the rental on either of her business premises or to pay wages and associated costs to her staff. She has no savings left and no ability to borrow further monies. The parties should be given the opportunity to make submissions as to the quantum of compensation for breach of the undertaking. [148] In addition to the power to award compensation, the court has power to impose a fine for civil contempt45 and may order any part of a fine imposed for contempt be paid to the applicant. As Samuels JA held in McIntyre v Perkes:46 “ … the court must have and does have the power to mould its punitive orders so as to vindicate the judicial process and its own authority in a way most suitable to the nature of the matter in hand; so as to convey its warning and stricture in a fashion, so far as possible, both telling and practical.” The Court of Appeal in New Zealand ordered half of a fine imposed by it to be paid to the applicant and half to the Crown in Taylor Bros v Taylors Group Ltd.47 Costs, compensation and penalty [149] The punishment for contempt is governed by rr 930 – 931 and costs by r 932 of the UCPR.48 It is appropriate that the issues of costs, compensation and penalty be decided together. An indemnity costs order which is often made in cases of this kind can be onerous and therefore impose a further sanction.49 A compensation order may impact on any other order for penalty that may be imposed. The amount of compensation to be awarded will be affected by the findings of contempt made in these reasons. The parties have made written submissions as to penalty but I propose to allow them the opportunity to make further oral submissions should they so wish, in particular, as to whether or not imprisonment should be imposed on the first respondent and if so, for how long; whether a fine should be imposed and if so, in what amount and whether all or any of it should be paid to the applicant and what compensation, if any, should be ordered. 45 Australasian Meat Industry Employees’Union v Mudginberri Station Pty Ltd (supra) at 109. 46 (1988) 15 NSWLR 417 at 423. 47 [1991] 1 NZLR 91. 48 Union Bank of Australia Ltd v Jones (1919) 36 WN(NSW) 83; McIntyre v Perkes (supra) at 433. 49 Evenco Pty Ltd v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) (supra) at [13] per McMurdo P. -- 45 of 45 --