Bakir v Doueihi & Ors [2001] QSC 414

SUPREME COURT OF QUEENSLAND CITATION: Bakir v Doueihi & Ors [2001] QSC 414 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: 6 November 2001 DELIVERED AT: Brisbane HEARING DATE: 24 – 26 October 2001 JUDGES: Atkinson J ORDER: There is no case to answer with regard to: (1) paragraphs 1(b), and 2, 3 and 4 with regard to the breach alleged in paragraph 1(b); (2) paragraphs 5(d), (e), and 6, 7 and 8 with regard to the breaches alleged in paragraphs 5(d) and (e); (3) paragraphs 9(a), 10, 11 and 12 (with regard to the third, fifth and sixth respondents); (4) paragraphs 17(a), 18, 19 and 20; (5) paragraphs 21(a), 22, 23 and 24 (with regard to the fourth and fifth respondents); -- 1 of 33 -- 2 (6) paragraphs 25(a), 26, 27, 28; (7) paragraph 29 (with regard to paragraph 1(b), 5(d) and (e)); (8) paragraph 30 (with regard to the allegation in paragraph 9(a) against the third, fifth and sixth respondents); (9) paragraphs 31, 32, 33, 34, 36, 37, 38 and 39 of the application. It follows that there is a case to answer on: (1) paragraphs 1(a), and 2, 3, and 4 with regard to the breach alleged in paragraph 1(a); (2) paragraphs 5(a), (b), (c), and 6, 7 and 8 with regard to the breaches alleged in paragraphs 5(a), (b) and (c); (3) paragraphs 9(a), 10, 11 and 12 (with regard to the second and fourth respondents); (4) paragraphs 13, 13(a), (b), 14, 15, 16; (5) paragraphs 21(a) and 22, 23 and 24 (with regard to the second respondents). (6) The allegations in paragraphs 29 and 30 will be restricted to breaches for which there is a case to answer. 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 – nature and history of contempt of court generally – form and contents of orders and undertakings – enforcement of money and non-money orders by contempt proceedings – whether case to answer in respect of alleged charges Property Law Act 1974, s 286, s 286(1), s 286(4) Supreme Court of Queensland Act 1991 Uniform Civil Procedure Rules, r 925, r 925(1)(a), r 926, r 926(1), r 926(1)(a), r 794, r 891, r 897, r 898, r 898(2)(a), r 898(2)(c)(I), r 900, r 900(1)(c)(i), r 904, r 917 -- 2 of 33 -- 3 Associated Alloys v ACN 001 452 106 P/L [2000] HCA 25, 11 May 2000, referred to Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (1973) 141 CLR 335, referred to Australasian Meat Industry Employees’Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98, referred to Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, referred to Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567, referred to Burnett v Burnett [1955] QWN 57, referred to Carreras Rothmans Ltd v Freeman Mathews Treasure Ltd [1985] Ch 207, referred to Carter v Roberts [1903] 2 Ch 312, referred to Chiltern District Council v Keane [1985] 1 WLR 619, referred to Consolidated Press Ltd v McRae (1955) 93 CLR 325, Considered Construction Mining and Energy Workers’ Union of Australia – Western Australian Branch v United Furniture Trades Industrial Union of Workers WA, Supreme Court of Western Australia Industrial Appeal Court, 1 February 1991, 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, considered Gilbert v Gilbert [1955] St R Qd 245, referred to Hartley v Salmond (1879) 5 QSCR 169, referred to Hinch v Attorney-General (Vict) (1987) 164 CLR 15, considered Iberian Trust, Ltd v Founders Trust and Investment Co [1932] 2 KB 87, referred to Jennison v Baker [1972] 2 QB 52, considered Jessup v Queensland Housing Commission [2001] QCA 312, CA No 409 of 2001, 10 August 2001, referred to Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563, referred to Kuek v Wellens [2000] VSC 326, 18 August 2000, referred to Lewis v Lewis [1902] St R Qd 115, referred to Madeira v Roggette Pty Ltd [1990] 2 Qd R 357, considered Nelson v Nelson [1923] St R Qd 37, referred to Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd [1998] 4 VR 220, referred to Phonographic Performance Ltd v Amusement Caterers (1964) Ch 195, considered Puma Australia Pty Ltd v Sportman’s Australia Ltd [No 2] [1994] 2 Qd R 159, referred to -- 3 of 33 -- 4 Re Intex Consultants Pty Ltd [1986] 2 Qd R 99, considered Richardson v Landecker (1950) 50 SR (NSW) 250, referred to S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358, 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 Stewart v Gymboree Pty Ltd [2001] QCA 307, CA No 8947 of 2000, 3 August 2001, referred to Webster v Southwark LBC [1983] QB 698, considered Witham v Holloway (1995) 183 CLR 525, considered COUNSEL: D Cooper SC and C Smiley for the applicant D B Fraser QC and M Burns for the respondents SOLICITORS: Ffrench Commercial Lawyers for the applicant McCullough Robertson for the respondents [1] On 27 July 2001, the parties in this matter sought a consent order to resolve the matters in dispute between them in Supreme Court proceedings. Douglas J made the consent order sought. The form of that consent order consisted of 13 paragraphs of undertakings made by various parties followed by 14 paragraphs of orders. [2] The order resolved litigation in this court between the plaintiff, Ronny Bakir, and the first defendant, Jean Doueihi, and a number of companies. Mr Bakir and Ms Doueihi had been in a de facto relationship and had also been in business together. 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. [3] Pursuant to the liberty to apply provision in the orders made on 27 July 2001, Ms Doueihi sought further orders which were made by Moynihan J on 24 August 2001. One of the orders made was for the appointment of receivers of the second, third and fourth defendants to collect, get in, receive and distribute the commissions referred to in the order of 27 July 2001. Paragraph 4 of the order was to the effect that: “The plaintiff pay to the first defendant by bank cheque by 12 noon on Monday, 27 August 2001, the sum of $15,252.96.” [4] An application was brought by the first defendant, Ms Doueihi, against the plaintiff as first respondent and the corporate defendants for alleged breaches of undertakings and orders. The application, filed on 28 August 2001, sought committal for contempt of court for failure to comply with specified undertakings and orders (the “application”). Particulars were sought of the charges of contempt on 18 October 2001 and particulars were given on 23 October 2001. After the closing of the applicant’s case, the respondents submitted that there was no case to answer. This is the decision of the court regarding that submission. -- 4 of 33 -- 5 History of contempt [5] The power of courts to fine or imprison for contempt of court has long been part of the coercive power of courts. In its original form, the coercive power of contempt was used to ensure order in the court and matters immediately affecting its business. So it was that as early as the 13th and 14th century,1 it was held to be contempt of court to assault a judge,2 a juror,3 a witness,4 an opposing party,5 a litigant,6 or an officer of the court.7 It was also a contempt to use words to, for example, insult a judge in open court.8 Fine and imprisonment were early common law remedies for such contempt of court. [6] In the Courts of Chancery, two types of contempts were commonly recognised. These included criminal contempt and the type of civil contempt which is in issue in this case. This type of civil contempt concerns the power of the Court of Chancery to deal with a party’s contempt in breaching orders of the court.9 A civil contempt of the type with which the court is concerned in this instance involves disobedience of a court order or an undertaking by a person involved in litigation. Nature of civil contempt [7] An application for a person to be dealt with for civil contempt has two main aspects. Firstly, it is for the benefit of the party who has the benefit of a court order which has been breached. Secondly, however, it is designed to punish disobedience of orders of the court. There is both a private and a public interest in compliance with court orders. As Salmon LJ said in Jennison v Baker:10 “The public at large no less than the individual litigant have an interest and a very real interest in justice being effectively administered.” Edmund-Davies LJ11 quoted with approval from the judgment of Cross J in Phonographic Performance Ltd v Amusement Caterers:12 “Where there has been wilful disobedience to an order of the court and a measure of contumacy on the part of the defendants, then civil contempt, what is called ‘contempt of procedure’, bears a two fold character implying as between the parties to proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the state, a penal disciplinary jurisdiction to be exercised by the court in the public interest.” 1 See Arlidge, Eady & Smith On Contempt 2nd Edition, 1999, Sweet and Maxwell at [1–2]. 2 (1348) YB 22 Edward III, p 13, pl 26. 3 Coram Rege roll, H. 22 Edward III, m 103. 4 Davis’s Case (1461) 2 Dyer 188; 73 ER 415. 5 Coram Rege roll, T 30 Edward I, m 9d. 6 (1323) Coram Rege roll, M. 17 Edward II, m 16d; (1398) Cal Pat Rolls, 22 Richard II, 427. 7 (1317) Coram Rege roll, T. 11 Edward II, m 48. 8 (1293) Coram Rege roll, P. 21 Edward I, par i, m 95 (Solly-Flood), William de Bereford J. 9 Arlidge, Eady & Smith [supra] at [1-47] – [1-50]. 10 [1972] 2 QB 52 at 61. 11 Jennison v Baker (supra) at 69. 12 (1964) Ch 195. -- 5 of 33 -- 6 [8] As the High Court held in Witham v Holloway,13 proceedings for breach of an order or undertaking have the effect of vindicating judicial authority as well as a remedial or coercive effect. [9] These two aspects of a civil contempt constituted by the failure to abide by a court order or an undertaking given to a court, has an inevitable impact on the procedure and standard of proof to be followed in such a case. In Witham v Holloway,14 the court held that the illusory nature of the differences between civil and criminal contempt, and the fact that the usual outcome of successful proceedings is punishment, makes it clear, as Deane J said in Hinch v Attorney-General (Vict),15 that all proceedings for contempt “must realistically be seen as criminal in nature”. The consequence is that all charges of contempt must be proved beyond reasonable doubt. The judgment of the High Court in Consolidated Press Ltd v McRae,16 a case of criminal contempt, is therefore apposite, where it held: “Like every other offence the facts by which it is made out must be proved by admissible evidence to the satisfaction beyond reasonable doubt of the tribunal. Uncertain inferences from inexact proofs will not support such a charge.” [10] If a failure to comply with orders of the court may lead to punishment by imprisonment, then the orders must be worded in clear and unambiguous terms so that the party affected knows what he or she must do or refrain from doing.17 However, the court will consider the substance of the order in considering the obligations contained in it. As Thomas J held in Re Intex Consultants Pty Ltd:18 “Although the undertaking is expressed in a positive form, it has a negative aspect. Courts are concerned with the substance of orders rather than their form.[19] … The undertakings must be looked at as a whole … ” [11] Undertakings are not looked at in isolation but considered in their context. As the Court of Appeal held in Evenco P/L v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) & Ors:20 “As was said by Priestley and Clarke JJA in S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd,[21] an undertaking must be construed “in the factual matrix which was known to both parties.” Here the undertaking was given as part of the settlement of an action … . An undertaking does not fall foul of the principle that its terms must be clear and ascertainable on its face simply because someone can contend for an unlikely construction thereof. In that context the learned trial judge referred to and relied on a passage from a 13 (1995) 183 CLR 525 at 533. 14 (supra) at 530. 15 (1987) 164 CLR 15 at 49. 16 (1955) 93 CLR 325 at 333. 17 Nexus Mortgage Securities Pty Ltd v Ecto Pty Ltd [1998] 4 VR 220 at 222; Iberian Trust, Ltd v Founders Trust and Investment Co [1932] 2 KB 87 at 95. 18 [1986] 2 Qd R 99 at 110. 19 cf Burnett v Burnett [1955] QWN 57 where Mansfield SPJ treated an order negative in form as being positive in substance. 20 [2000] QCA 108, CA No 3536 of 1999 and 3610 of 1999, 14 April 2000 at [58] – [59]. 21 (1998) 12 NSWLR 358 at 387. -- 6 of 33 -- 7 judgment of Barwick CJ in Australian Consolidated Press Ltd v Morgan:22 ‘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.’ Counsel for the [appellant] 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. 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.’” [12] 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.23 There is also a negative obligation not to do anything to prevent the contract operating according to its terms.24 To do otherwise would put the party in breach of contract and therefore in breach of the order. 22 (1965) 112 CLR 483 at 492. 23 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607. 24 Southern Foundries (1926) Ltd v Shirlaw [1940] AC 701 at 717. -- 7 of 33 -- 8 [13] The breach of an order will not constitute contempt unless it is wilful and not casual, accidental or unintentional.25 [14] There are, nevertheless, procedural differences between criminal and civil contempts. In particular, there is no trial by jury and an application for punishment for contempt is brought in the civil jurisdiction of the court. Contemporary practice in Queensland [15] 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 Uniform Civil Procedure Rules (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”. [16] 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.” Rule 926(1) requires particularisation of the charges. Adequate particulars have been given in this case. The charges are confined to the particulars given.26 Order made by Moynihan J on 24 August 2001 [17] Prior to considering the charges with regard to the alleged breach of the undertakings and orders contained in the consent order dated 27 July 2001, it is convenient to consider the breach alleged of paragraph 4 of the order made by Moynihan J on 24 August 2001. The charge against the first respondent, made in paragraph 34(a) of the application, is that he did not pay the applicant the sum of $15,252.96 by bank cheque by 12 noon on Monday, 27 August 2001. [18] The respondents argue that the charge is misconceived because there is no provision for a contempt order to be made for failure to comply with a money order. “Money order” is defined in Schedule 2 of the Supreme Court of Queensland Act 1991 to mean:27 25 Australasian Meat Industry Employees’Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 111; Madeira v Roggette Pty Ltd [1990] 2 Qd R 357 at 363, 366; Stewart v Gymboree Pty Ltd [2001] QCA 307, CA No 8947 of 2000, 3 August 2001 at [35]; Evenco P/L v Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) & Ors (supra) at [32]. 26 Chiltern District Council v Keane [1985] 1 WLR 619. 27 Incorporated into the UCPR by Schedule 4 of the UCPR. -- 8 of 33 -- 9 “An order of the court, or part of an order of the court, for the payment of an amount, including an amount for damages, whether or not the amount is or includes an amount for interest or costs.” [19] A “non-money order” is similarly defined to mean: “An order of the court, or part of an order of the court, for a form of relief other than the payment of an amount.” [20] It would appear that paragraph 4 of the order made by Moynihan J on 24 August 2001 is therefore a money order. [21] The application with regard to the alleged breach of this order is found in paragraph 34 of the application filed 28 August 2001. It seeks: “An order that the plaintiff be committed to Her Majesty’s Prison at Brisbane and further or in the alternative, that the plaintiff be fined for his contempt of court in failing to comply with the orders of The Honourable Justice Moynihan made in this matter on 24 August 2001. That failure to comply with the said order is: (a) the Plaintiff has not paid to the First Defendant by Bank Cheque by 12 noon on Monday 27 August 2001 the sum of $15,252.96.” The application also seeks fines and compensation for the applicant’s losses. [22] The application was made pursuant to r 926 of the UCPR which sets out how a person applying for punishment for a contempt commences that application. Rule 925(1)(a) provides that such an application may be made for a contempt constituted by failure to comply with an order of the court. The respondents have argued, however, that failure to comply with a money order cannot by itself constitute a contempt. It is an argument with which I find myself in agreement. [23] The UCPR provide for distinct methods of enforcing money orders and non-money orders. Chapter 19, as its title shows, applies to the enforcement of money orders. Rule 794 makes that perfectly clear. Chapter 19 provides for specific means of enforcing money orders. These include the power to hold an enforcement hearing and to issue a warrant28 or to arrest a person to bring that person before the court in certain circumstances. As well as enforcement hearing warrants, the court has power to issue an enforcement warrant. The enforcement warrant has simplified the procedure of the court for enforcing money orders. [24] The enforcement of non-money orders, on the other hand, is governed by Chapter 20 of the UCPR. Rule 891 provides that a non-money order may be enforced under Chapter 20. [25] Part 2 of Chapter 20 provides for enforcement of particular non-money orders. Unlike Chapter 19, 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: 28 An enforcement hearing warrant. -- 9 of 33 -- 10 “(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.” [26] 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. (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 party in breach the party in breach should -- 10 of 33 -- 11 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.” [27] Rule 904 deals with the procedural prerequisites to enforcement by contempt or seizing of property. It provides: “(1) Unless the court otherwise orders, a non-money order may be enforced by contempt proceedings or seizing a person’s property only if – (a) the person against whom the order is to be enforced is served personally with a copy of the order; and (b) for an order requiring a person to perform an act within a time specified in the order, the order is served a reasonable time before the end of the time specified in the order. (2) Subrule (1) does not apply to a non-money order requiring a person to perform an act within a time specified in the order or requiring a person to abstain from performing an act, if the person has notice of the order because – (a) the person was present when the order was made; or (b) the person was notified of the terms of the order by telephone or in another way a reasonable time before the end of the time for performance of the act or before the time when the prohibited act was to be performed as the case requires.” [28] Parts 3, 4, 5 and 6 of Chapter 20 deal with enforcement warrants and Part 7 of Chapter 20 deals with contempt. Division 3 of that part deals, as already noted, with an application for punishment for contempt. [29] It appears clear from the procedure set out in the UCPR that contempt proceedings are not available for breach of a money order. Rather the enforcement procedure set out in Chapter 19 of the UCPR must be followed. In this case, it may be appropriate upon application to issue an enforcement warrant under r 817. It follows that paragraph 34 of the application which deals with an application to have the plaintiff committed for contempt for failure to pay $15,252.96 in accordance with the order of Moynihan J cannot stand. [30] This conforms with the practice under the rules of the Supreme Court, which the UCPR replaced, which provided, as Griffith CJ said in Lewis v Lewis,29 “the laws of Queensland do not allow attachment for debt.” [31] It may be, as the applicant submits, that it is possible that an applicant might properly charge a respondent with contempt30 if there is evidence of deliberate 29 [1902] St R Qd 115 at 119; see also Hartley v Salmond (1879) 5 QSCR 169. 30 Carter v Roberts [1903] 2 Ch 312 at 321. -- 11 of 33 -- 12 conduct undertaken to frustrate or impair the person’s capacity to pay31 but this is not the charge laid against the first respondent in this case. [32] It is not necessary, therefore, to deal with the first respondent’s argument as to service of the order and the appropriate endorsement. However, as Thomas J said in Re Intex Consultants Pty Ltd,32 neither is always strictly necessary. There is certainly sufficient evidence in this case that the first respondent knew precisely what he was required to do upon this order being made. Breach of order made by Douglas J on 27 July 2001 [33] The remainder of the charges concern the alleged failure to comply with undertakings given or orders made by consent by Douglas J on 27 July 2001 (the “order”). These charges fall into five categories, concerning the failure to provide airtime reports; failure to comply with orders and undertakings concerning the stocktake; failure to provide the database; failure to provide access to connection contracts; and failure to comply with orders concerning commissions and airtime commissions. Charge 1 - air-time reports: [34] 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 order, in that the first respondent 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 to sixth 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. [35] The obligation of the respondents is said to arise under the proviso to undertaking 6, found in the order of Douglas J of 27 July 2001. Undertaking 6 provides: “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 31 As the applicant says, the banking records for Crazy Ron’s Pty Ltd no 2 account show that on 27 August 2001, there was sufficient money ($15,347.74) in that account to meet that order (Evidence of Evans, Statement of Account no 17-5676, Exhibit 7). 32 (supra) at 106 – 109. -- 12 of 33 -- 13 Defendant or her nominees within 48 hours of the receipt of the same.” (Italics added). [36] 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. Evidence has been given by the service providers, RSL.com and Vodafone P/L, that such reports were received by the respondents more than 48 hours prior to 28 August 2001 and the evidence of Ms Doueihi33 is that she did not receive those reports prior to initiating her application on that date. In their submissions, the respondents assert that a one- page statement and data file was received by e-mail on Friday, 17 August 2001, from RSL.com. The one-page summary was sent by the respondents’ solicitors to the solicitors for the applicant on 4 September 2001.34 It is open to the court to infer that the disobedience to the order was deliberate. [37] The request for particulars is found in paragraphs 1 and 8 of the request for particulars of the charges. The request with respect to the charge against the first respondent found in paragraph 1(a) of the application is in the following terms: “(i) Identify by reference to date, service provider and any other necessary distinguishing features, which copies of airtime reports are the subject of this complaint; (ii) Specify when each of such reports was received by the Plaintiff; (iii) To the extent that the complaint relates to the lateness of provision of a copy specify when, if at all, a copy of such report was provided by the Plaintiff.” [38] The request with regard to the second to sixth respondents, is in identical terms except it refers to them rather than to the first respondent. [39] In reply, the applicant said 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 P/L 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. It is also said that no reports have been received by the applicant from the first respondent, or second to sixth respondents. [40] This charge follows a similar pattern to the charges that follow in that the first respondent has been charged with a failure to comply with undertakings as have the second to sixth respondents. The respondents have submitted that the first 33 Affidavit of J D Doueihi filed 29 August 2001, paragraph 22. 34 Affidavit of J R M French filed 26 September 2001, Exhibit JRMF12. -- 13 of 33 -- 14 respondent is not the subject of any separate charge as an officer of any of the corporate respondents under r 898(2)(c)(i) or r 900(1)(c)(i). The respondents argue that the distinction between a charge as an individual and as an officer of a corporation is well recognised and is an important one. The respondent referred to the form of the charges found in Madeira v Roggette Pty Ltd35 and in Re Intex Consultants Pty Ltd36 but the form of the charges in those cases is affected by the change of rules. What is important in this case is conformity with the UCPR. [41] In my view, the particulars given make it clear that the charge against the first respondent is made against him in a dual capacity both as an individual and as the second and fourth respondents of which he was the only director (or officer).37 The first respondent is liable to be punished therefore under both paragraph (a) and (c)(i) of sub-rule 898(2). However, the particulars given make charges against the third, fifth and sixth respondents otiose. They effectively have no case to answer. However, there is a case to answer against the first, second and fourth respondents for wilful breach of the orders. Charges 2 and 3 – stock: [42] These charges are found in paragraphs 1(b), 5(a) and 13(a) of the application. [43] Paragraph 1(b) of the application charges the first respondent with failing to provide to the applicant the stock identified in the list not chosen by the first respondent pursuant to paragraph 6(c)38 of the order of Douglas J of 27 July 2001. This is the subject of the second charge. The third charge, found in paragraph 5(a) of the application, is that the first respondent has prevented the applicant from taking an equal share of the stock referred to in paragraph 6(c) of the order of 27 July 2001. Paragraph 13(a) of the application repeats that charge against the second to sixth defendants. [44] Paragraph 6(c) of the 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 the stores and businesses currently operated by all the parties were to be transferred as a going concern and 35 (supra) at 361. 36 (supra) 37 Evenco P/L Aust Bldg Cons Employees & Builders Labourers Federation (Qld Branch) (supra) at [34] per Pincus JA. 38 The application in fact refers to paragraph 7(c) of the order of Douglas J instead of paragraph 6(c) but nothing turns on the numbering of the paragraphs of the order of Douglas J since the respondents have agreed that the applicant may amend the application to conform with the numbering of the order. -- 14 of 33 -- 15 on a walk in/walk out basis either to the applicant or the first respondent or their nominees. [45] 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. [46] Paragraph 7 of the undertakings given by the first respondent was to provide to the applicant with the stock identified in the list not chosen by the first respondent pursuant to paragraph 6(c) of the order. In paragraph 3 of the undertakings, the first respondent warranted that the stock level was $280,000 as at 13 July 2001 plus or minus 10 percent. 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. [47] 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; (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 percent, 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. [48] Each of the parties were also subject to the positive and negative obligations reasonably necessary to give effect to each of these obligations. For example, neither the applicant nor any of the respondents could instruct Mr Ffrench or Mr Wedgwood to refuse to appoint Hymans Auctioneers to conduct a stock-take on all the stores. [49] 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 had 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 -- 15 of 33 -- 16 himself and as each of the companies as the sole owner and director of them.39 His state of mind was the state of mind of the relevant company.40 The respondents have conceded that the first respondent exercised control over the corporate respondents.41 [50] These charges were again the subject of a request for particulars. Paragraph 2 of the request related to the second charge found in paragraph 1(b) of the application and asked the applicant to: “(i) Identify by reference to Exhibit number the document said to be the list not chosen by the Plaintiff referred to; (ii) Specify the stock which it is alleged that the Plaintiff failed to provide to the First Defendant by reference to such list.” [51] In answer, the applicant said: “The relevant list is contained in exhibit JDD8 of the affidavit of Jean Dark Doueihi sworn 28 August 2001. It commences at the first page of that exhibit and continues for 9 pages including the first, a copy of that relevant list is attached marked “A”. Page 1 of that document shows three columns named “List 1” “List 2” and “extras”. “List 1” is the stock the first defendant was to receive, “List 2” was the stock to remain in the possession of the Plaintiff. The list “extras” was divided between the Plaintiff and First Defendant as shown on page 2. The Plaintiff took the material on page 2 marked under “List 1” and the First Defendant took the stock referred to under the heading “List 2”. These two pages refer to mobile telephone handsets. Pages 3 to 9 show 4 columns Barcode No, Description, Quantity (Qty) and Location. The quantity column has been subdivided from left to right as follows, the first column is “extras” which means the amount of stock left over after all of its ilk have been equally divided between the Plaintiff and the First Defendant. The second column is the actual quantity in stock of that item, the next column is marked “R” this records the number of items taken by the plaintiff and the final column marked “J” records the number of to which the First Defendant was entitled. The Plaintiff was to retain the stock marked extras.” [52] With regard to the second request the applicant said that the first respondent had failed to provide her stock to the value of $65,057 but she was unable to identify specific items of stock. [53] The requests for particulars with regard to paragraphs 5(a) and 13(a) of the application are in similar terms. The request with regard to paragraph 5(a) said: “(1) Particularise the material facts relied upon for the allegation that the Plaintiff “has prevented” the First Defendant from 39 See Richardson v Landecker (1950) 50 SR (NSW) 250 at 259. 40 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 582 – 583. 41 Transcript pp 202 – 203. -- 16 of 33 -- 17 taking an equal share of the stock as alleged therein specifying when and the place where any such conduct relied upon occurred and what such conduct comprised; (2) Identify what is said to be the “equal share” of the stock referred to therein.” The request with regard to paragraph 13(a) is in similar terms except that it refers to the second to sixth defendants rather than the plaintiff. [54] In response, the applicant said that on 30 July 2001, the applicant and the first respondent met at the offices of the second respondent. In answer to their request regarding the second to sixth respondents, the applicant said that the first respondent was acting on behalf of the second to sixth respondents as well as himself. The rest of the answer to the request for particulars is in identical terms. It said: “They 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 First Defendant was entitled was $130,114. The First Defendant obtained and took away stock on 30 July 2001. It was agreed between the Plaintiff and the First Defendant that this stock had a value of $65,057. It was also agreed between the Plaintiff and the First Defendant that the First Defendant was entitled to further stock to a value of $65,057 which she could obtain by lodging orders with the plaintiff over the next 14 days. Despite demands for that stock it was never provided. That failure is the manner in which the plaintiff has prevented the first defendant from obtaining her share of the stock. The demands for stock are referred to at Ex JDD8 to the Affidavit of the First Defendant sworn on 28 August 2001.” [55] In the answer to the request regarding the second to sixth respondents, the applicant alleges that the agreements referred to in the particulars were made by the first respondent on behalf of the second to sixth respondents as well as himself. As to the second request, it is said that an equal share of the stock is a “50/50 division of the stock by value agreed between the Plaintiff and the First Defendant on 30 July 2001.” [56] The applicant submits that an obligation under order 6(c) was that the stock be shared equally. The first respondent promised to deliver stock to the agreed value of a half share but failed to do so. The applicant submits that the first respondent has prevented the applicant from taking a half share because he has declined to make available to her stock under his and his companies’ control or ownership. Likewise, the companies have failed to deal with their stock to give the applicant her entitlement. [57] On 30 July 2001, it was determined by the first respondent and the applicant that the applicant was entitled to stock valued at $130,114 which was agreed between them as half the agreed value of the stock on hand at 13 July 2001. The applicant took stock valued at $65,057 on 30 July 2001. The applicant did not take all of the stock to which she was entitled because of representations by the first respondent and his associates that to do this would leave the first respondent with no stock with -- 17 of 33 -- 18 which to conduct his business.42 On 30 July 2001, in return for this, the first respondent gave a further undertaking to provide stock to the value of $65,057 in conformity with order 6(c) and undertaking 7. He undertook to do this within 14 days.43 That the parties intended this revised procedure to be in satisfaction of the court order and not in place of it is, it is submitted, borne out by the subsequent correspondence between the solicitors. [58] On 8 August 2001, the first respondent’s solicitors wrote to the applicant’s solicitors: “Our client warranted the stock level at $280,000, plus or minus 10 percent. 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 to 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 paragraph 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 two lists as were required by the order. Your client prepared something different, which is in the spirit of compromise our client worked to.” [59] Mr Wedgwood, solicitor for the first respondent, arranged with Mr Shneider, a law clerk at the firm of solicitors acting on behalf of the applicant, for Hardi Ellaz and the first respondent’s brother, Azzam Hassam, to attend at Mr Shneider’s office on behalf of the first respondent. The evidence shows that Mr Shneider asked for the stock which he says the applicant had requested on many occasions. Mr Ellaz told Mr Shneider that the first respondent did not have any stock available to him and that he had virtually run out of stock. Mr Hassam said there was no stock available for the applicant. The applicant has said that this was demonstrated to be untrue on that afternoon when she and Mr Shneider telephoned the business of the first respondent and were told that stock purportedly ordered by a customer was able to be collected. [60] The second to sixth respondents have submitted that the applicant’s complaint in paragraph 13(a) of the application must fail as the order in paragraph 6(c) casts no obligations on the second to sixth defendants. However, since the stock belonged to the corporate respondents they were subject to the negative obligation not to hinder the process or as it is expressed in the charge not to prevent the applicant from taking an equal share of the stock. 42 Affidavit of J D Doueihi filed 29 August 2001, paragraphs 26 and 27, Exhibit JDD9; Affidavit of S Shneider filed 29 August 2001, paragraphs 5 and 6; Affidavit of J D Doueihi sworn 23 October 2001, paragraph 8. 43 Affidavit of J D Doueihi filed 29 August 2001, paragraphs 26 and 27, Exhibit JDD5, Exhibit JDD7, Exhibit JDD9. -- 18 of 33 -- 19 [61] The respondents also allege that the order did not make any reference to equal shares. However, the form of the order is that the stock existing as at 13 July 2001, which was warranted in paragraph 3 of the undertakings in the same order as being worth $280,000.00 plus or minus 10 percent, was to “be shared equally between the plaintiff and the first defendant or their nominees.” This was a distinct agreement made into an order of the court. Any of the respondents who failed to give effect to that agreement would arguably be in breach of the order. [62] The respondents argue the equal sharing was premised upon two lists being prepared by the applicant from which the first respondent was to choose. I do not agree. The order contains a number of distinct obligations. However, I agree that there is no evidence, as was submitted by the respondents, that the first respondent did not provide to the applicant the stock identified in the list prepared by her which he did not choose. There is no evidence to support the second charge. There is therefore no case to answer with regard to paragraph 1(b) of the application. [63] The respondents argue that no separate agreement made in relation to the warranty can be enforced by contempt proceedings. However, the further agreement between the parties44 was arguably a means of giving effect to the obligation to share the stock equally rather than merely a substitution of a new obligation.45 The variation affected the manner of performance not the nature of the obligation. In other words, it varied the third and fourth obligations under the order but not the second obligation. The charge of contempt arises from the failure to give effect to the obligations to share the warranted stock equally.46 The evidence is capable of founding a finding that the breach was wilful. There is therefore a case to answer on charge 3 found in paragraphs 5(a) and 13(a) of the application. Charge 4 – database: [64] This charge is found in paragraphs 5(b) and 21(a) of the application. Paragraph 5(b) charges that the first respondent has denied the applicant access to the database referred to in order 6(d) of the order made by Douglas J on 27 July 2001. The charge made in paragraph 21(a) of the application is that the second, fourth and fifth respondents have denied the applicant access to that database. [65] Paragraph 6(d) of the 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.” This was one of a number of the conditions, found in paragraph 6 of the 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 cast an obligation on the second, fourth and fifth respondents, all of whom were parties to the consent order, and their controlling mind, the first respondent, to provide access to the relevant database to the applicant. The respondents conceded in their submissions that the database was a useful resource for business renewals.47 44 Affidavit of S Shneider filed 29 August 2001, Exhibit SS2. 45 Gilbert v Gilbert [1955] St R Qd 245. 46 See UCPR r 897. 47 Submissions paragraph 3.2 -- 19 of 33 -- 20 [66] 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 is only made against the second, fourth and fifth respondents. [67] 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. [68] The facts and the evidence said to support this charge are that paragraph 6(d) of the order provides a right to the nominated parties to have access to the service providers’ database maintained for connections to 13 July 2001 by the second, fourth and fifth respondents. The solicitors for the parties agreed that the database included information held by Crazy Ron’s Pty Ltd on computer. On 30 July 2001, the first respondent said that that database would be delivered to the applicant by Mr Ellaz but it was not. In a telephone call made later on that day, the first respondent told the applicant that he would give her nothing. The applicant alleges that this conduct constitutes a denial. The database is said to be under the control of the first respondent.48 [69] On 20 July 2001, the solicitors for the applicant wrote to the solicitors for the first respondent and asked for confirmation that the database was a computer record.49 On the same day, the solicitors for the respondents replied by facsimile transmission saying inter alia that a copy of the database would be downloaded to disk and provided to Ms Doueihi the following week.50 The applicant submits that this asserts possession and control of the database and that it is a computerised one. [70] Mr Shneider deposes to being present for a conversation between the applicant and the first respondent with regard to the database. The first respondent said he would ensure the complete database would be delivered by Mr Ellaz to the applicant’s Mermaid Beach store. Mr Ellaz said that he would deliver the stock to her first and 48 Affidavit of J D Doueihi filed 29 August 2001, paragraph 29; Affidavit of J D Doueihi filed 26 September 2001, paragraph 2. 49 Affidavit of J R M Ffrench filed 23 October 2001, Exhibit JRMF1. 50 Affidavit of J R M Ffrench filed 29 August 2001, Exhibit JRMF10. -- 20 of 33 -- 21 then come back later that day, 30 July 2001, to deliver the books of documents that made up the database. This did not occur. [71] On 7 August 2001, solicitors for the applicant acknowledged that the solicitors for the respondents had e-mailed what appeared to be the database. However, they asserted that it was in an unreadable form and noted that the respondents’ solicitors were arranging for their IT staff to convert it to a format such as Excel.51 The applicant’s solicitors assert that despite promises that a legible copy would be forthcoming, none has been provided.52 [72] The respondents argue that this order does not impose any positive obligations on them. However, for the reasons already given I do not accept that this is necessarily so. The order is precise as to the obligation, ie. the parties must comply with the order that the applicant and first respondent have access to the relevant database. It was therefore sufficiently clear and unambiguous as to be capable of being obeyed and of enforcement by committal.53 There has been no specific argument addressed to the question of the effect of not specifying in time for performance of the relevant acts in the order. That matter should be considered in submissions by the parties on the application. [73] The respondents submit that the acts of the respondents as alleged could not constitute a denial of access. It is said that such a denial could only be constituted by attendance by the applicant at the premises followed by a denial of a request to inspect the database.54 I accept, however, that the conduct referred to by the applicant in this case is capable of constituting a denial of such access mandated by the consent order. The acts of the first respondent, if proved to the requisite standard, are capable of demonstrating that the first and second respondents knew the nature of their obligation when they entered into it but chose not to comply with it.55 [74] It should be said, however, that on the evidence presented, the charge is sustainable only against the second respondent, who held the database, and against the first respondent, who had apparent control over the second respondent and its database. Charge 5 – connection contracts: [75] These charges are found in paragraphs 5(c) and 13(b) of the application. In paragraph 5(c), the first respondent is charged with denying the applicant access to all connection contracts to 13 July 2001 pursuant to order 6(e) of the order made by Douglas J. Paragraph 13(b) charges the second to sixth respondents with denying the applicant access to all connection contracts to 13 July 2001 pursuant to paragraph 6(e) of the order. Paragraph 6(e) of the order, which was one of the terms of the transfer of the business, 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 51 Affidavit of J R M Ffrench filed 29 August 2001, paragraph 13, Exhibit JRMF7. 52 Affidavit of J R M Ffrench filed 29 August 2001, paragraphs 13 and 14, Exhibit JRMF7. 53 cf Iberian Trust, Ltd v Founders Trust and Investment Co (supra); Madeira v Roggette Pty Ltd (supra) at 363. 54 cf Nelson v Nelson [1923] St R Qd 37. 55 Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 491. -- 21 of 33 -- 22 supervision of a servant or agent of the Plaintiff to copy such of the contracts as she may desire and at her expense.” [76] 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.” 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. [77] 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. [78] The evidence on which the applicant relies to prove her claim is that on 30 July 2001, the first respondent told the applicant that she would not receive any access to the contracts.56 The applicant says the denial was made by the first respondent on behalf of each of the second to sixth respondents. The applicant submits that the connection contracts had, at all times, been the property of the corporate respondents. Those companies were, at all relevant times, solely owned and controlled by the first respondent. [79] The applicant submits that the order is permissive. It provides that Ms Doueihi may “have access” to all contracts for a period of 30 days. The obligation imposed on the respondents is a negative obligation not to deny that permission and to act reasonably in allowing access to the information. The applicant says that she has not been afforded the opportunity to exercise that permission because until the filing of the application, she was only offered some of the documents for a very short time. Only on 10 October 2001, did the respondents’ solicitors offer to make all the folders available but this was not in accordance with the order since the 30 days had expired. [80] It is submitted that the order clearly shows that there are such contracts in existence and that they are distinct from the database. Those contracts have been produced in response to a subpoena and tendered in these proceedings. The value of those connection contracts to the applicant are set out in her affidavit material.57 56 Affidavit of J D Doueihi filed 29 August 2001, paragraph 34. 57 Affidavit of J D Doueihi sworn 23 October 2001, paragraph 6. -- 22 of 33 -- 23 [81] The applicant had no access to these contracts in the 30 days from 27 July 2001 or, she said, at all.58 The applicant’s evidence is that by 28 August 2001 she had not had any access to the contracts.59 Indeed she had not been given access to the connection contracts by the time the matter came on for hearing. This was despite numerous personal approaches by the applicant to the first respondent60 and by the solicitors for the applicant to the solicitors for the respondents.61 The applicant asserts that the first respondent repeatedly told her in response to her personal requests that the contracts would be delivered on that day. However, the applicant swears that this never occurred.62 [82] The applicant’s evidence is that on 30 July 2001, the first respondent promised to have the contracts delivered on that day to her Mermaid Beach store.63 It is submitted that this constitutes evidence of control of the contracts. The applicant said that she waited at the Mermaid Beach store until 10.00pm that evening but the documents were never delivered.64 She said that she telephoned the first respondent and asked for the folders. However, he told her she would not receive any folders in any circumstances and hung up on her.65 It is submitted that this evidence also shows control over the contracts by the first respondent. [83] The applicant asserts that, in correspondence between solicitors, the respondents’ solicitors have consistently insisted on conditions contrary to the order of 27 July 2001 as terms for the production of the connection contracts. It is submitted that this again is clear evidence of control of the contracts and of an intention not to perform the order in its terms. These conditions have been refused by the applicant who has insisted on her right to access according to the order. This has been denied by the first respondent and his solicitors.66 [84] On 9 August 2001, Mr Hassam, on behalf of the first respondent, told Mr Shneider, of the applicant’s solicitors, that the applicant could have access to ten of the folders containing the contracts. It appears there are approximately 60 such folders.67 When Mr Shneider objected to the short time and the small number of contracts made available, Mr Hassam replied that the applicant could have the contracts the way he said or not at all.68 The evidence of the applicant is that Mr Hassam spoke by telephone to her from the office of her solicitors that afternoon. She asked him if he had the stock, the folders and the database with him. He replied that he did not, rather he had “$3,500 cash, you take this or you take nothing.” She alleges he also said that he had the connection contracts for her which he would drop back to her at her office, however, he had to have them back 58 Affidavit of J D Doueihi filed 29 August 2001, paragraph 32. 59 Affidavit of J D Doueihi filed 29 August 2001, paragraph 32. 60 Affidavit of J D Doueihi filed 29 August 2001, paragraph 32, Exhibit JDD10. 61 Affidavit of J R M Ffrench filed 29 August 2001, paragraph 15 – 21, Exhibit JRMF2, JRMF9 – 14. 62 Affidavit of J D Doueihi filed 29 August 2001, paragraph 32. 63 Affidavit of S Shneider filed 29 August 2001, paragraph 7; Affidavit of J D Doueihi filed 29 August 2001, paragraph 34. 64 Affidavit of J D Doueihi filed 29 August 2001, paragraph 34. 65 Affidavit of J D Doueihi filed 29 August 2001, paragraph 34. 66 Affidavit of J R M Ffrench filed 29 August 2001, paragraphs 15 – 21, Exhibits JRMF2, JRMF9 – JRMF14. 67 Affidavit of J D Doueihi filed 29 August 2001, paragraph 34. 68 Affidavit of S Shneider filed 29 August 2001, paragraph 14. -- 23 of 33 -- 24 by 5.00pm. It was 4.15pm at the time when the conversation occurred. When the applicant asked him if this was a joke he replied, “No this is the way it goes.”69 [85] The respondents have raised similar arguments as those raised with regard to the database and for similar reasons they assert that there is no case to answer. In addition, they submit that, in any event, the offers of access made were consistent with a reasonable interpretation of the order. In my view, it would be open to the court to find otherwise to the requisite standard and that the failure to provide access was deliberate. It appears that each of the companies had contracts to which it is argued that the applicant was denied access. There is therefore a case to answer with regard to each of the respondents. Charges 6 and 7 – commissions and airtime commissions: [86] The sixth charge in the application against the first respondent is found in paragraph 5(d) of the application. It charges the first respondent with having denied the applicant payment of commissions and airtime commissions to which she is entitled pursuant to paragraph 6(h) of the orders. Charge 6 also charges the second, third and fourth respondents with having denied the applicant payment of commissions and airtime commissions to which she is entitled pursuant to the same order. That charge is found in paragraph 25(a) of the application. [87] Charge 7 recites a breach of paragraph 7 of the order. In paragraph 5(e) of the application, it charges that the first respondent has refused and failed to pay to the applicant her share of airtime commissions payable and to become payable to the second and fourth respondents by service providers in respect of contracts or connections existing at 13 July 2001 as required by paragraph 7 of the order. Paragraph 17(a) of the application makes a similar charge against the second and fourth defendants. [88] These charges are in respect of alleged breaches of paragraph 6(h) and paragraph 7 of the order of Douglas J. These paragraphs of the order provide: “6(h) the Plaintiff consents 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. (Italics added). … 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 airtime 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 69 Affidavit of J D Doueihi filed 9 October 2001, paragraph 3. -- 24 of 33 -- 25 for the duration of those contracts or connections, whichever is longer.” [89] The undertaking given in paragraph 6 of the undertakings is also relevant. As previously quoted, it provides: “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 [7] 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 that 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). [90] The declaration in paragraph 7 of the order concerns airtime commissions which have been earned or will be earned by the second and fourth respondents because of connections made by the applicant prior to and including 13 July 2001. This is the subject of charge 7. [91] The order in paragraph 6(h) on the other hand, is concerned with commissions and airtime commissions earned by the applicant by use of the second to fourth respondents’ dealer code numbers for the period of 30 days from 17 July 2001. This is the subject of charge 6. [92] The request for particulars is found in paragraphs 6, 7, 11 and 13 of the request. With regard to paragraph 5(d)70 of the application, the applicant is asked to specify the commissions and airtime commissions referred to therein by reference to service provider, date payable and amount, and to specify the date, place and manner of the denial referred to therein. With regard to paragraph 5(e)71 the applicant was asked to: “(i) Specify the airtime commissions payable as alleged therein by reference to service provider, date payable and amount; (ii) Specify the date, place and manner of the refusal referred to therein; (iii) Specify the date, place and manner of the failure referred to therein.” 70 Charge 6 against the first respondent. 71 Charge 7 against the first respondent. -- 25 of 33 -- 26 [93] With regard to paragraph 17(a)72 of the application, the applicant was asked to: “(i) Specify the airtime commissions referred to therein by reference to service provider, due date and amount; (ii) Specify the date, place and manner of each denial by any, and if so, which, of the Second to Sixth Defendants referred to therein and the identity of the person who acted on behalf of the corporation specified.” [94] Similarly, with regard to paragraph 25(a)73 of the application, the applicant was asked to: “(i) Specify the commissions and airtime commissions payable as alleged therein by reference to the service provider, due date and amount; (ii) Specify which of the Second to Sixth Defendants denied the First Defendant access to such database as alleged therein and the identity of the person who acted on behalf of the corporation specified; (iii) Specify the date, place and manner of the denial referred to therein.” [95] With regard to the request for particulars of commissions the subject of charge 6 and charge 7, the applicant said she cannot give particulars of the airtime commissions to which she is entitled as she has not been provided with copies of the airtime commission reports since 13 July 2001, with which she could determine the commissions payable. However, she estimates the amounts owing to her would be $23,000 for each month of June, July, August and September 2001.74 As to commissions, the particulars of those unpaid are set out at paragraph 5 and Exhibits JDD1 and JDD2 of the Affidavit of J D Doueihi sworn 23 October 2001. The particulars of the date, place and manner of the denial or refusal is said to be inferred from the fact that the applicant has received no such payments. She alleges that the first respondent has declined to make such payments and has appropriated the monies owing to the applicant to his own use. [96] The applicant alleges with regard to charge 6 that the evidence discloses that connections were made after 13 July 2001 and commissions earned. On the evidence of the first respondent, these commissions totalled $28,04275 and on the evidence of the applicant, $48,395.90. The only amount offered to the applicant by agents of the respondents on 9 August 2001, was $3,500 subject to unacceptable conditions sought to be imposed with regard to paragraph 6(h) of the orders made by Douglas J. The applicant’s evidence is that on 21 August 2001 the first respondent said he would pay the applicant nothing and that she would have to take him to court. [97] The applicant used the dealer codes of the second, third and fourth respondents for 30 days from 17 July 2001.76 This enabled her to connect mobile phone customers to service providers. Using these dealer codes the applicant, in the 30 days after 72 Charge 7 against the second and fourth respondents. 73 Charge 6 against the second, third and fourth respondents. 74 Affidavit of J D Doueihi filed 29 August 2001, paragraph 20. 75 Affidavit of R M Bakir filed 27 September 2001, Exhibit RB32. 76 Affidavit of J D Doueihi filed 29 August 2001, paragraph 11. -- 26 of 33 -- 27 17 July 2001, made connections entitling her to commissions in the amount of $48,395.90.77 These connections were made only with RSL.com.78 Her evidence is that she advised the first respondent of the amount of these commissions owing at that time on many occasions, providing a daily total in a manner required by the first respondent.79 [98] The applicant alleges that all of the commissions in respect of connections made by the applicant have been received by the respondents.80 She has not received any of the commissions relating to those connections.81 It follows, it is submitted, that the applicant has not received any payment of the airtime commissions referred to in undertaking 6 or paragraphs 6(h) or 7 of the order.82 Neither have her solicitors received any such payment on her behalf.83 [99] In addition to the order of 27 July 2001, the first respondent has personally undertaken to the applicant to pay these commissions to her as he received them each Friday, and at the same time to provide a reconciliation statement in respect of the payment.84 It is submitted that this is an assertion of control and receipt of the commissions. In a letter dated 7 August 2001, the first respondent, by his solicitors, offered to make a part payment of the commissions of $3,500 on conditions contrary to the order of 27 July 2001.85 Again, it is alleged that this is an assertion of control and receipt of commissions. [100] On 9 August 2001, Mr Ellaz and Mr Hassam attended at the offices of the solicitors for the applicant on the instructions of the first respondent and on his behalf. They offered $3,500 in cash if the BMW motor vehicle was released to them. Mr Hassam stated that if the cash offered was not taken then nothing would be paid to the applicant. The cash was refused.86 [101] On 21 August 2001, the applicant and first respondent had a telephone conversation wherein the applicant asked for her commissions receivable under this order. The first respondent told her that she would get nothing from him and she would have to take him to court.87 [102] Further, with regard to charge 7, the applicant says the evidence shows that there has not been any assignment to her of any benefit or income derived from airtime commissions received on connections made by the second, third or fourth defendants to 13 July 2001.88 77 Affidavit of J D Doueihi sworn 23 October 2001, paragraph 5, Exhibits JDD1 and JDD2. 78 Affidavit of J D Doueihi sworn 23 October 2001, paragraph 10. 79 Affidavit of J D Doueihi filed 29 August 2001, paragraph 12, 13 and 18, Exhibits JDD2 and JDD4. 80 Affidavit of J D Doueihi filed 29 August 2001, paragraph 31 – 34. 81 Affidavit of J D Doueihi sworn 23 October 2001, paragraph 5. 82 Affidavit of J D Doueihi filed 29 August 2001, paragraph 8. 83 Affidavit of J R M Ffrench filed 29 August 2001, paragraph 5. 84 Affidavit of J D Doueihi filed 29 August 2001, paragraph 14, Exhibit JDD5; Affidavit of S Shneider filed 29 August 2001, paragraph 6, Exhibit SS2. 85 Affidavit of J R M Ffrench filed 29 August 2001, paragraph 7, Exhibit JRMF2. 86 Affidavit of S Shneider filed 29 August 2001, paragraphs 8 – 13; Affidavit of J D Doueihi filed 28 August 2001, paragraph 16. 87 Affidavit of J D Doueihi filed 29 August 2001, paragraph 17. 88 Affidavit of J D Doueihi filed 29 August 2001 paragraph 9. -- 27 of 33 -- 28 [103] The applicant further alleges that all of the monies paid by service providers which fall within the order made by Douglas J have been received into the hands of the first respondent and his companies.89 It is alleged that the plaintiff has applied these monies to his own use. The applicant alleges that in July 2001, the first respondent used a payment of $25,688.7090 from RSL.com in payment of creditors.91 A further $15,252.96 of such monies were applied to his own use.92 [104] Despite the order made by Moynihan J on 24 August 2001, the applicant alleges that the first respondent has continued to apply such monies received by him, which should be shared between himself and the applicant, for his own use. The evidence given by the applicant is that the second respondent received from RSL.com the sum of $24,101.66 after the first respondent offset, for his sole advantage, stock which he acquired valued at $15,424.85.93 The solicitor for the first respondent acknowledged that $16,169.94 of these monies should be paid to the applicant. However, the monies were wholly put to the use of the first and second respondents and no attempt has been made to pay these monies to the applicant.94 [105] The applicant submits that in addition to the monies referred to above, the first respondent must have received further monies caught by the orders. The bank statement for the second respondent’s no 2 account showed that in the period of 13 July to 10 October 2001, the second respondent received commissions from RSL.com amounting to $383,125.02.95 The second respondent has, since 30 July 2001, been under the sole control of the first respondent. The applicant says that from 27 July to 28 August 2001, the following monies were received to that account from RSL.com: (a) 1 August 2001 RSL.com Commission $13.65 (b) 1 August 2001 RSL.com Commission $26,324.13 (c) 8 August 2001 RSL.com Commission $73,813.30 (d) 15 August 2001 RSL.com Commission $18,595.20 (e) 15 August 2001 RSL.com Commission $24,101.66 (f) 22 August 2001 RSL.com Commission $34,859.71 (g) 24 August 2001 RSL.com Commission $9,212.50 89 Affidavit of J D Doueihi filed 29 August 2001 paragraph 21; see also Exhibit 7. 90 This money was the subject of the order made by Moynihan J on 24 August 2001. Ms Douiehi has sworn that that money has not been received by her (Affidavit of J D Doueihi filed 29 August 2001, paragraphs 10 and 14). 91 Affidavit of J R M Ffrench filed 29 August 2001, Exhibit JRMF8. 92 Affidavit of J R M Ffrench filed 29 August 2001, paragraph 4, Exhibit JRMF2; Affidavit of J D Doueihi filed 29 August 2001, paragraph 10. 93 Affidavit of J D Doueihi filed 9 October 2001, paragraph 9. 94 Affidavit of J R M Ffrench filed 26 September 2001, Exhibit JRMF12. 95 Exhibit 7. -- 28 of 33 -- 29 [106] The applicant says she has been denied the airtime reports of service providers required by undertaking 6 to enable her to determine when the monies to which she is entitled are paid and how much she should receive.96 [107] The respondents have submitted that the charges that rely on the declaration found in paragraph 7 of the order of Douglas J are misconceived as it contains a declaration which has no coercive force. In Kuek v Wellens,97 Gillard J examined the usual effect of a declaration: “A declaration does not require anything to be done and as a general proposition a failure to give effect to it does not amount to a contempt of court. In Webster v Southwark LBC,[98] after referring to an order that was made in a declaratory form went on to say this: ‘That, of course, is a declaratory order, one which declares the rights of the parties to the action, but carries with it no notice of any penal sanction.’ His Lordship held in that case that the failure to comply with its terms did not amount to a contempt of court. The practical consequences that flow from the making of a declaration will vary from case to case but the general rule is that a declaration cannot be enforced. Hence in some cases the making of a declaration could have no effect. The court will not make an order that is futile and hence in those circumstances a declaration would be refused. But despite the fact that a declaration is unenforceable courts do make declarations confident that responsible citizens, bodies, corporations, governments and others will abide by it and not do anything contrary to it. … Although a declaratory judgment or order is not coercive nevertheless the count may in a suitable case grant some other order to support the declaration. However, the granting of some additional remedy would depend on the particular circumstances.”99 [108] However, paragraph 7 of the order expressly provides that it is a declaration made under s 286(1) of the Property Law Act 1974. This section provides: “A court may make any order it considers just and equitable about the property of either or both of the de facto spouses adjusting the interests of the de facto spouses … in the property.” This declaration is, in fact, a property adjustment order which is what an order under s 286(1) is called. [109] Section 286(4) provides that in s 286: 96 Affidavit of J D Doueihi filed 29 August 2001, paragraphs 21 and 22. 97 [2000] VSC 326 at [117] – [120], [122]. 98 [1983] QB 698 per Forbes J at 705. 99 See also Construction Mining and Energy Workers’Union of Australia – Western Australian Branch v United Furniture Trades Industrial Union of Workers WA, Supreme Court of Western Australia Industrial Appeal Court, 1 February 1991, at 6 and 25. -- 29 of 33 -- 30 “ ‘adjust’ for interests of persons in property, includes give an interest in the property to a person who had no previous interest in the property.” The applicant submitted that while paragraph 7 of the order is expressed as a declaration, it does more than declare rights. It actually creates property rights. Before that order, the applicant had no personal right in the commissions which vested in the relevant respondents. Paragraph 7 of the order “adjusts” those interests by creating an entitlement to them in the applicant, not merely declaring it. The corresponding obligation on the respondents is to cause her share to be paid to the trustee if they cannot cause it to be paid to her directly. The evidence discloses payments of airtime commissions by RSL.com between 13 July and 28 August 2001, in the amount of $65,043.42,100 were paid to the first respondent but none of the respondents caused this to be paid to the trustees’ account. The declaration is in this case supported by the undertaking in paragraph 6 and the actions required of the respondent pursuant to those undertakings. [110] The respondents submit that the order made by paragraph 6(h) suffers from the deficiency of not identifying the party who is to pay the commissions and airtime commissions to the applicant. As the whole of the order makes clear, however, it is the second to fourth respondents’ dealer code numbers which will be used to earn these commissions and thus they who will receive the commissions. Accordingly, they are responsible for making or assigning payment to the applicant. The first respondent as their controlling mind also has that responsibility. Liability for the payment of commissions and airtime commissions therefore rests inevitably with the first to fourth respondents who are sufficiently identified in the order. [111] The respondents submit that there is no obligation to hold the monies received in trust. The evidence suggests that commissions payable could be offset by the service provider for claw-backs etc. Whether or not the commissions payable at the time of making the order, are subject to a trust obligation depends on the intention of the parties. As Gibbs ACJ held in Australasian Conference Association Ltd v Mainline Constructions Pty Ltd:101 “Where money is advanced by A to B, with a mutual intention that it should not become part of the assets of B, but should be used exclusively for a specific purpose, there will be implied (at least in the absence of a contrary intention) a stipulation that if the purpose fails the money will be repaid, and the arrangement will give rise to a relationship of a fiduciary character, or trust.” In this case the question is one of a trust created in favour of a third party.102 [112] The relevant intention is inferred from the language used by the parties, the nature of the transaction and from the circumstances attending the relationship between the parties.103 100 Exhibit 7. 101 (1973) 141 CLR 335 at 353 when explaining Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567; see Jessup v Queensland Housing Commission [2001] QCA 312, CA No 409 of 2001, 10 August 2001 at [6]. 102 See Carreras Rothmans Ltd v Freeman Mathews Treasure Ltd [1985] Ch 207. 103 Associated Alloys v ACN 001 452 106 P/L (supra) at [34]. -- 30 of 33 -- 31 [113] In this case, the undertaking given in paragraph 6, made it clear that in the event that the service providers did not pay to the applicant one half of the income from airtime commissions payable on contracts to 13 July 2001, then those moneys were to be paid into a trust account. Those moneys are impressed with a trust obligation. [114] More difficulty arises, however, with regard to the commissions earned by use of the dealer code numbers of the second to fourth respondents. The applicant would use certain specified dealer codes of the second to fourth respondents for a period of 30 days for which she would be entitled to receive the commissions. The commissions would be paid by the service providers to the second to fourth respondents. It was arguably the intention of the parties that that money should not become part of the assets of the respondents but be paid to the applicant. Although an agreement to keep funds separate is strongly indicative of a trust, indeed it has been called the “hallmark duty of a trustee”,104 a failure to do so does not necessarily negative a trustee obligation arising. As the High Court held in Associated Alloys v ACN 001 452 106 P/L:105 “ … it is no objection to the effective creation of a trust that the property to be subjected to it is identified to be a proportion of the proceeds received by the Buyer; a proportion referable to moneys from time to time due and owing but unpaid by the Buyer to the Seller.” [115] In such a case, and in this case, the trustee (the relevant respondent) is bound to apply that sum by accounting to or at the direction of the beneficiary (the applicant). [116] The respondents further submit that they have in any event paid what was owing under this order. They submit that the only amount which is identified as having been received by the second respondent in respect of such commissions or airtime commissions is the sum of $28,042.00 (after allowance for claw-backs).106 An error was, they submit, made in calculating that amount because of the inclusion of the sum of $2,690.00 for the period 20 to 27 July 2001 in respect of the Mermaid Beach store. That amount does not otherwise appear in Exhibit JRMF12. They also argue that $3,546.00 of that amount107 appears to have arisen before the order came into operation. Subtracting that amount gives a balance of $21,806.04. By letter dated 30 August 2001, the solicitors for the respondents directed that $27,551.04 was to be paid to the applicant in reduction of the amount owing by the respondents to the applicant.108 By directing payment on 30 August 2001, the respondents discharged, it is submitted, any obligation as to payment which was then outstanding under paragraph 6(h) of the order and did so by the end of the month in which payments were received. [117] The respondents further submit that these charges should fail because, on 30 July 2001, before there was any suggestion of a breach of the order, the parties made a written agreement about the payments required to be made under paragraph 6(h) of 104 Puma Australia Pty Ltd v Sportman’s Australia Ltd [No 2] [1994] 2 Qd R 159 at 162. 105 [2000] HCA 25 at [30]. 106 Exhibit JRMF12. 107 This was the amount tendered to Mr Shneider by Mr Ellaz and Mr Hassam on behalf of the respondents. 108 JRMF3, paragraphs 7 and 12, JRMF11. -- 31 of 33 -- 32 the order.109 However, the agreement made between them was only a mechanism for giving effect to the order made in paragraph 6(h). It was certainly not in substitution for it. It did not interfere with the terms of the order. The contempt charge, properly, recites a breach of the order rather than the agreement entered into between the parties.110 [118] However, there is nevertheless the same flaw in these charges as there was in the charge relating to the breach of the order of Moynihan J. As the respondents submit, the orders on which these charges rely are money orders and so must be enforced under Chapter 19 by the issue of an enforcement warrant. Conclusion [119] For the reasons given, there is no case to answer with regard to: (1) paragraphs 1(b), and 2, 3 and 4 with regard to the breach alleged in paragraph 1(b); (2) paragraphs 5(d), (e), and 6, 7 and 8 with regard to the breaches alleged in paragraphs 5(d) and (e); (3) paragraphs 9(a), 10, 11 and 12 (with regard to the third, fifth and sixth respondents); (4) paragraphs 17(a), 18, 19 and 20; (5) paragraphs 21(a), 22, 23 and 24 (with regard to the fourth and fifth respondents); (6) paragraphs 25(a), 26, 27, 28; (7) paragraph 29 (with regard to paragraph 1(b), 5(d) and (e)); (8) paragraph 30 (with regard to the allegation in paragraph 9(a) against the third, fifth and sixth respondents); (9) paragraphs 31, 32, 33, 34, 36, 37, 38 and 39 of the application. [120] It follows that there is a case to answer on: (1) paragraphs 1(a), and 2, 3, and 4 with regard to the breach alleged in paragraph 1(a); (2) paragraphs 5(a), (b), (c), and 6, 7 and 8 with regard to the breaches alleged in paragraphs 5(a), (b) and (c); (3) paragraphs 9(a), 10, 11 and 12 (with regard to the second and fourth respondents); (4) paragraphs 13, 13(a), (b), 14, 15, 16; 109 Affidavit of S Shneider filed 29 August 2001, paragraph 6, Exhibit SS1. 110 cf Gilbert v Gilbert (supra). -- 32 of 33 -- 33 (5) paragraphs 21(a) and 22, 23 and 24 (with regard to the second respondents). (6) The allegations in paragraphs 29 and 30 will be restricted to breaches for which there is a case to answer. -- 33 of 33 --