Al Haje v Elassaad [2024] NSWSC 13

In this matter, Greg Walsh acts for the Plaintiff, Wisam Al Haje.

The Plaintiff sought an order against the Defendant for his costs for interlocutory proceedings that have resulted from the Defendant’s breach of an undertaking given on 3 September 2023, connected with an asset preservation order first made by Bellew J on 1 September 2021. Costs were sought on an indemnity basis under r.42.7(2) Uniform Civil Procedure Rules. This provides that costs may be payable forthwith rather than at the conclusion of the proceedings.

An order was sought that pursuant to s.98(4)(c) of the Civil Procedure Act 2005 (NSW), the Court should assess the quantum of costs in a specified gross sum. The matter was heard before Fagan J on 13 and 17 October 2023.

The Plaintiff commenced proceedings in the Supreme Court on 2 August 2021 alleging the Defendant assaulted him on 24 January 2021. The original asset preservation order, obtained ex parte, restrained the defendant from disposing of, dealing with, or diminishing the value of his assets generally. Such assets included a residential property at 170 Roberts Road, Greenacre, a second residential property at 69 Northcote Road. Greenacre and a half interest with his father in a third property at 83A Northcote Road, Greenacre.

On 3 September 2021, when the ex parte order was first returnable, Mr Khouzame was on the Court record as the defendant’s solicitor. On his application the order was varied to permit sale of the Roberts Road property on condition that the sale price should be not less than $1,350,000 and that on completion the net proceeds of the sale would be paid into the defendant’s solicitors’ trust account. An undertaking of the Defendant was given to the Court by his solicitor on his behalf.

That undertaking was to cause the net proceeds of any sale of the Roberts Road property to be paid on completion into a trust account operated by the First Respondent’s solicitors who were on record in these proceeding’s and will not direct that the proceeds be dissipated without an order of the Court.

The orders were varied so as to remain in force until 24 September 2021. They were subsequently varied so as they were in force up to 20 February 2024.

On 3 September 2021. after the asset preservation order had been varied and the undertaking given to the Court, the Defendant terminated his instructions to Mr Khouzame. He was not thereafter represented in these proceedings until he appointed Mr Kyriacou as his solicitor on some date prior to 20 October 2021. Mr Kyriacou continued on the record until the Defendant again changed his representation in May 2023.

The Defendant gave oral evidence before Fagan J on 13 October 2023 that he was unaware of the undertaking to pay the net proceeds of the sale of the Roberts Road property into his solicitors’ trust account. He stated that he was not present at the hearing on 3 September 2021 and that he was informed by Mr Khouzame later in the day that he was restrained from disposing of his other real property interests but was free to sell the Roberts Road property and to deal with the proceeds as he saw fit.

Fagan J found that it was highly improbable that the solicitor would not have fully and accurately informed the Defendant of the orders made and the undertaking given on the Defendant’s behalf. His honour was reluctant to accept the Defendant’s assertion unless he heard from the solicitor himself. No explanation was given for the Defendant’s failure to call Mr Khouzame. It was put to him in cross-examination that he well knew of the existence of the undertaking, and His Honour observed that his answers were unresponsive and evasive. His Honour made a specific finding that:

l found him to be a very untrustworthy witness. I do not accept that he was unaware of the undertaking given to the Court on his behalf. I am satisfied that on and from 3 September 2021 he knew of his obligation to pay the net proceeds into trust. Even if the defendant did not know of the undertaking that his solicitor had given on his behalf, that could only have been through his own fault. He was well aware that the plaintiff was seeking an order to restrain him from dealing with his assets and it was incumbent upon him, as the respondent, to ascertain the outcome of the interlocutory proceeding.

The Defendant after 3 September 2021, entered into a contract to sell the Roberts Road property at a price of $1,315,000. The sale was completed on 4 February 2022. The defendant did not cause the net proceeds to be paid into the trust account of Mr Khouzame’s firm or into any other solicitor’s trust account. The Plaintiff did not learn of this breach until 3 March 2023. Greg Walsh conducted a Land Registry search and ascertained that there was a transfer dated 4 February 2022 which had been lodged and that Mr Khouzame had acted in connection with the transfer.

An application was then made to the Court to then remedy the situation. On 6 March 2023 Weinstein J ordered that the asset preservation order be extended to 4 September 2023, with certain variations. There was a specific order that a sum of money equivalent to the net proceeds of sale of [the Roberts Road property] be paid into a trust account operated by the respondent’s solicitor who is on the record in these proceedings, that is Mr Kyriacou, by 13 March 2023.

His Honour observed that the Defendant did not comply with order 2. He also did not provide copies of statements of bank accounts in his name for the period following settlement of sale on 4 February 2022 as required by the orders. It became apparent that the net proceeds of sale had been deposited into the trust account of Percentage Property Pty Ltd, the real estate agent thorough which the Defendant had affected the sale. There was no disclosure by the Defendant or on his behalf as to whether the funds were still held by Percentage Property Pty Ltd, or if not, how the funds had been applied.

A Notice of Motion was then filed by Greg Walsh on behalf of the Plaintiff on 29 May 2023, seeking an order that the Defendant pay into Court the proceeds of sale of the Roberts Road property. The Plaintiff appeared unrepresented when the motion was before Rothman J on 1 June 2023. His Honour ordered that the Defendant pay into Court “the proceeds of sale, if any” and that he provides within 28 days an account of all money disbursed from the proceeds. The Defendant was ordered to pay the costs of the notice of motion.

On 6 July 2023, the Defendant filed an affidavit purporting to account for disbursement of the proceeds of sale. That affidavit confirmed that the Defendant had not merely failed to pay the proceeds into trust, in breach of his undertaking, but that he had disbursed the proceeds, or allowed them to be disbursed so that a significant component of the original asset preservation order had been frustrated. This caused the Plaintiff to file on 1 September 2023 his notice of motion seeking the appointment of a receiver over the defendant’s assets.

As His Honour observed, there was no application to set aside the original asset preservation order as modified on 3 September 2021 nor to be released from the undertaking of 3 September 2021.

The only practical remedy was for the appointment of a receiver, however, His Honour suggested that the parties consider alternatives, such as the Defendant offering mortgages over his remaining real property to secure any judgment that the plaintiff may recover, as an alternative to incurring the professional fees of a receiver.

His Honour was satisfied that the Plaintiff was entitled to his costs in respect of the application to Weinstein J on 6 March 2023. He was also entitled to the costs in respect of proceedings before Rothman J and also Campbell J on 5 and 14 September 2023. Such costs will be assessed on an indemnity basis.

In the context of whether a lump sum order should be made, His Honour made findings as to the conduct of the Defendant which gave rise to the interlocutory contest which was unreasonable. His Honour ultimately made a finding that the case was not suitable for an order that the costs of the various interlocutory proceedings be paid a specific gross sum. His Honour made an order that such costs be assessed and be paid on an indemnity basis and paid forthwith.

Bouchere v Car Festivals Pty Ltd [2022] FCA 1070

In this matter, Greg Walsh for Lynelle Bouchere.

The initial advice provided was to the effect that the circumstances of the accident was one which arose as a result of a motor vehicle accident arising from a burnout competition, when pure methanol fuel generated by the competitor in the course of the competition, ignited rubber detritus situated in close proximity to the spectator watching the event. As a result, a number of spectators were severely burnt and others suffered psychological injury.

Greg Walsh met with the Claimants in Darwin and accepted instructions on a ‘no win no fee’ basis and also agreed to pay the disbursements of the Claimants. Greg Walsh made the decision not to seek to engage a litigation funder, so as to avoid the Claimants losing up to 60% of any verdict or settlement.

The case was brought against Car Festivals Pty Ltd, Summernats Pty Ltd and Northern Territory Major Events Company Pty Ltd.

Greg Walsh acknowledged that the litigation was extremely hard for and involved enormous effort of not only his part, but that of his staff and with the support of the Claimants. Greg Walsh was of the opinion that the injuries suffered by the Claimants arose not as a result of a motor vehicle accident, but as a result of a breach of the Australian Consumer Law (ACL) and in negligence. This meant that the very restrictive conditions of the Motor Accidents Compensation Act (NT) did not apply.

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Al Haje v Elassaad [2021] NSWSC 1437

In this case, Greg Walsh acted for Wisam Al Haje (Plaintiff) in respect of an application by Mohammad Elassaad (Defendant) to obtain a temporary stay, pending the conclusion of criminal proceedings, which is listed for trial, for the final hearing on 15 November 2021 at the Bankstown Local Court.

The Plaintiff initiated proceedings in the Supreme Court in respect of an alleged assault by the Defendant upon him which is said to have occurred on 24 January 2021. Those proceedings were initiated on 2 August 2021.

The Plaintiff’s claim is that he sustained serious injuries resulting in non-economic loss (pain and suffering), loss of earning capacity and out-of-pocket expenses, together with exemplary and aggravated damages.

Greg Walsh suggested to the then solicitor of the Defendant that it was for the Defendant to be required to seek particulars of the Statement of Claim prior to 15 November 2021 but that the Defendant not be required to file a Defence until after 15 November 2021 when the criminal matter was listed for final hearing.

This offer was rejected.

Her Honour made orders that the Defendant seek particulars by 17 November 2021 and the Plaintiff respond by 2 December 2021 and a Defence be filed by 9 December 2021.

MTH v Croft [2021] NSWSC 727

In this case, Greg Walsh acted for the plaintiff, MTH, in respect of proceedings commenced by Summons filed on 23 June 2020. The plaintiff sought relief including injunctions to restrain the defendants, Geoffrey and Sandra Croft for disposing of certain assets.

Adamson J heard the application for costs. Her Honour set out the factual and procedural background in respect of the costs at [3] – [17].

The Summons was filed in proceedings commenced by way of Statement of Claim on 16 April 2020. MTH claimed damages from the State of New South Wales and Mr Croft for physical and sexual assaults perpetrated against her by him between 1978 and 1979 whilst she was in the foster care of Mr and Mrs Croft. MTH was 16-years-of-age at the time she was a ward of the State.

The assaults were perpetrated against MTH at a property known as ‘Cleggswood’ in Uralla. This property was sold in 2013 for $ 3 million. Mr and Mrs Croft were registered proprietors as tenants in common in equal shares of two residential properties in Armidale, rural properties in Yorrowyck and Ebor, and another residential property in Brushgrove: [7].

In 2017, Mr Croft was arrested and charged with a number of counts of sexual and physical assault alleged to have been committed against the plaintiff. On 12 April 2019, Mr Croft transferred his share in the Brushgrove and Yorrowyck properties to Mrs Croft. On 15 May 2019, he transferred his share in the Ebor property to Mrs Croft; the consideration identified was “love and affection”: [8].

On 25 October 2019, Judge McLennan sentenced Mr Croft to an aggregate term of imprisonment of 22 years with a non-parole period of 10 years.

On 24 July 2020, Greg Walsh, the plaintiff’s solicitor, swore an affidavit in support of the application for freezing orders to which he annexed a draft statement of the plaintiff. A draft Summons was also annexed which sought relief against Mr and Mrs Croft pursuant to s37A(1) Conveyancing Act 1919 (NSW) which provides that transfers of property made with intent to defraud creditors, are voidable on the application of a person prejudiced by the transfer: [13].

On 27 July 2020, Campbell J made freezing orders to restrain Mr and Mrs Croft from dealing with their assets: MTH v Croft [2020] NSWSC 986.

On 4 December 2020, consent orders were made whereby Mrs Croft re-transferred to Mr Croft the interests which he had transferred to her in the Yarrowyck and Ebor properties.

Her Honour was satisfied that, had the proceedings been brought by Notice of Motion in the damages proceedings, the question would have arisen whether a costs order ought to be made in favour of either party and on what basis. Her Honour observed that the transfers from Mr Croft to Mrs Croft in mid-2019 for nil valuable consideration had the effect of diminishing the assets of Mr Croft which would otherwise have been available to meet a judgment in favour of the plaintiff.

Her Honour at [25] made a finding that the plaintiff’s prospects of success in the summons proceedings were high. In these circumstances, her Honour made an order that in the event that the plaintiff was successful in proceedings against Geoffrey Croft, the defendants in these proceedings are to pay the plaintiff’s costs of these proceedings.”

The judgement can be found at

Howard v Surf Life Saving Australia NSW [2019] NSWSC 1212 (13 September 2019)

In this matter, Greg Walsh acted for the Plaintiff, Graham Howard, a long serving member of the North Palm Beach Surf Life Saving Club.

Mr Howard had been subject to allegations of misconduct which was the subject of an investigation and disciplinary hearing.

He was suspended for two years.

Justice Pembroke, of the Supreme Court, heard the case and determined that there was a wholesale failure of the Judiciary Committee to comply with its own regulations. The Committee had also failed to provide Mr Howard with basic information which he was entitled to on grounds of procedural fairness. The unfairness of Surf Life Saving NSW was revealed in the course of the hearing by the Judicia Committee as observed by His Honour at paragraph [19] of the judgement.

The decision of the Judiciary Committee was set aside and the Defendant was ordered to pay costs. 

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Joanne Young v Josephine Smith – Contempt [2017] NSWSC 1443

In this matter Greg Walsh acted for Joanne Young (Plantiff)


1 On 2 August 2016, the Contemnor, Ms Josephine Aapa Smith was found guilty of contempt of Court. The Court, as presently constituted, held that on 2 February 2015 the Contemnor dealt with property located at Wharf B, Level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont (‘the Property”), by encumbering it by means of a mortgage in favour of Westpac Banking Corporation (“Westpac”) in circumstances where the Court had, to the knowledge of the Contemnor, restrained such conduct in relation to that property.

2 Having heard the parties on what, if any, sentence to impose, it falls on the Court to sentence the Contemnor.

3 The orders breached were orders of the Court, as earlier stated, restraining any dealing in the Property. The conduct giving rise to the contempt is described in the Reasons for Judgment, published by the Court and giving rise to the finding of guilt: Young v Smith (No 3) [2016] NSWSC 1051 (“the Judgment on Guilt’).

4 It is unnecessary to recite, in full, the somewhat complicated issues associated with the finding of guilt. It is sufficient, for present purposes, to reiterate that proceedings were commenced by the plaintiff, Mrs Joanne Elizabeth Young, initially against her former husband, Mr Leslie James Young, and, as a consequence of the initial proceedings, freezing orders issued against the husband and his subsequent partner, the Contemnor in these proceedings.

5 In the Judgment on Guilt, the Court set out a history of the proceedings (see [17] of that judgment and following). That history is relevant in understanding the objective seriousness of the matter with which the Court is now concerned and is in the following terms:

[17] The applicant, Ms Young, married Mr Young in 1992 and they separated in 1999. She was Mr Young’s second wife. The Contemnor, Ms Smith, is (or was at all relevant times) Mr Young’s de facto partner. She has been in that position since about 1999.
[18] At the time that Mr Young and Ms Smith commenced their de facto relationship, Mr Young’s assets consisted of 50% shareholding in a number of companies (the identities of which, presently, are irrelevant).
[19] In or about 2001 an agreement was executed which recited the contemplation of Mr Young and the Contemnor as to the purchase of residential property for the purpose of it being their residence, that the residential property purchased by them for their joint use, shall be the property of the Contemnor, regardless of the identity of the persons on the registered title.
[20] The applicant, Mr Young’s second wife, was the manager of a hotel owned by one of the companies of which she and Mr Young were each half owners. In July 2006, Mr Young removed the applicant from the hotel premises and made allegations that she had misappropriated monies belonging to the hotel. Those charges were all dismissed.
[21] The applicant brought proceedings against Mr Young for malicious prosecution and/or damages for related or similar causes of action. There were also proceedings relating to a property settlement claim that had been cross-vested from the Family Court of Australia to this Court.
[22] In May 2007, Mr Young and the Contemnor purported to enter into a contract for the purchase of a property at Pirrama Road in Pyrmont (“the Property”). They purported to be joint tenants. The purchase price was something over $4.5 million. The transaction was completed In or about July 2008 and funded through a loan extended to the company that owned the hotel, with Mr Young and the Contemnor each granting the lender a mortgage and guarantee.
[23] The proceedings for the property settlement and for malicious prosecution were heard by the Court and orders made on liability, with separate questions being referred to an Associate Justice. As a consequence of that referral, Harrison AsJ determined, on the basis of proceedings before her, that Mr Young’s assets were valued at or above $9 million.
[24] On 11 April 2013, the Court ordered that Mr Young pay the applicant $2,663,000 and weekly maintenance. Further, the Court found that Mr Young had deliberately deceived police in relation to the charges based upon allegations made by him and awarded damages for malicious prosecution of $165,000.
[25] On 23 September 2013, the residential premises said to be registered in the name of Mr Young and the Contemnor, and described above, were transferred to the Contemnor. Further, the hotel from which the applicant was excluded was sold in May 2014 and the company that owned it put into liquidation. The Liquidator realised its assets which included a car park adjacent to the hotel.
[26] On 5 June 2014 Bankruptcy Notice 172322 was issued at the instigation of the applicant in relation to the judgment debt. The Bankruptcy Notice could not be served.
[27] On 7 August 2014, the Contemnor, acting under a Power of Attorney on behalf of Mr Young, executed a Memorandum of Transfer between Mr Young and herself in relation to Mr Young’s interest in the Property. The purported consideration for the transfer was $1.8 million, which was never paid.
[28] On 29 August 2014, the applicant made an ex parte application to this Court for freezing orders. The Court made orders restraining Mr Young and the Contemnor from dealing with any of their assets, including the Property. until further order of the Court. That order issued on 29 August 2014. The judge who issued the orders was Bellew J. The terms of that order will be recited later in these reasons.
[29] On 1 September 2014, Mr Young initiated an application under s 55(2) of the Bankruptcy Act 1966 (Cth) in which he stated that his interest in the property was worth 50 per cent of $5.5 million and was sold for $1.8 million. The document, in the relevant column, or entry, indicated that Mr Young had received no money for that share or that transfer. Mr Young also identified the Contemnor as a secured creditor in or to the sum of approximately $4 million. Mr Young was declared bankrupt on 2 September 2014, on his own application. [Footnotes omitted.]

6 On 4 September 2014, the Court issued orders, the effect of which was to continue the orders issued by the Court on 29 August 2014 against both Mr Young and the Contemnor in these proceedings. On 2 February 2015, the Contemnor, in contravention of the said orders, entered into a mortgage over the Property and was advanced $5.8 million by Westpac.

7 The Contemnor breached the orders, issued by the Court on 29 August 2014 and continued by the Court on 4 September 2014, and that breach gives rise to the sentence to be imposed for contempt of Court.

8 On 15 April 2015, the Court (constituted by Sackar J) finalised the substantive proceedings, dealing with the ownership of property, and on 5 May 2015 issued orders giving effect to those reasons. The orders were altered on 6 June 2015 and the ultimate effect of the orders was that, subject to a registered mortgage, the Contemnor held the contentious property subject to a one half share on trust for Mr Young but not so as to interfere with any interest of the plaintiff in these proceedings.

Punishment for contempt

9 The power of the Supreme Court of New South Wales to punish for contempt arises from its status as a superior court of record. Contempt is a common law offence, punishment for which is an inherent power of a superior court of record. It is unnecessary here to deal with punishment in the face of Court to which the foregoing statements do not relate.

10 Pursuant to the powers described in the Supreme Court Rules 1970 (“SCR”), and in particular Pt 55 r 13, the Court may impose a penalty for contempt on an individual, being committal to a correctional centre or fine or both. Further, the Court may issue orders for punishment on terms, including suspension or part suspension and impose conditions for good behaviour and the like.

11 There are two types of contempt: civil and criminal. Criminal contempt is conduct that obstructs the administration of justice. Civil contempt is, essentially, the breach of an order or undertaking. However, where that breach is deliberate, being a deliberate defiance or a contumacious breach, contempt that is otherwise civil is considered to be criminal in nature: Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3.

12 Further, the Court of Appeal has determined that contumacious, wilful and deliberate disobedience of a Court order may be characterised as both civil and criminal conduct: see Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, per Beazley JA; and Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21; and Witham v Holloway, supra.

13 Even “mere” civil contempt affects the administration of justice. The purpose of imposing punishment for wilful disobedience of a court order is to discipline the offender and to vindicate the authority of the court: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at [112].

14 The process of sentencing involves a sentencing judge arriving at and imposing a sentence appropriate to the gravity of the offence that was committed (objective seriousness) and to the circumstances of the offender who committed it (subjective circumstances), taking into account the purposes of sentencing. Those purposes include punishment; protection of society; personal and public deterrence; retribution; and reform: see s 3A of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) and Veen v The Queen (No 2) (1988) 164 CLR 465 at 476; [1988] HCA 14:
“The purposes overlap and none of them can be considered in Isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

15 The process, often referred to as intuitive synthesis, is one jn which the Court considers each of the factors as part of the objective or subjective circumstances (and in some situations both) to arrive at a result which seeks to achieve each of the purposes best.

16 In dealing with the objective and subjective circumstances of the offence and offender, the Court may have regard to the provisions of s 21A of the Act, although most of those criteria are factors to which a sentencing Court would, even in the absence of s 21A of the Act, have regard. Ultimately, the Court has a wide range of sentences that it may impose for contempt of Court: NCR Australia v Credit Connection [2005] NSWSC 1118.

17 The range of sentences includes imprisonment, periodic detention, home detention, community service orders, good behaviour bonds, dismissal of the charge accompanied by either a good behaviour bond or a condition that the offender participate in an intervention program, deferral of sentence, a suspended sentence, a fine, and the making of a non-association or a place-restriction order. Each of those is a potential punishment on Contemnors. The legislature has conferred on the Court the power to impose such punishment: In some instances, there are restrictions on the imposition of any such sentence.

18 In determining the sentence to be imposed, the Court is to consider the nature of the contempt committed: Commissioner for Fair Trading v Rixon (No 3)
[2014] NSWSC 1279, per Garling J. Those circumstances include: the nature and circumstances of the contempt; the impact or likely impact of the contempt on the administration of justice; the extent of the offender’s culpability for the conduct; the need to deter the offender and others from engaging in contempt; whether a finding of contempt has been previously made; whether contrition or remorse is displayed and an apology proffered; and the financial and personal circumstances of the offender when a fine is being sought: see also Paccar Financial Pty Ltd v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622.

The nature and circumstances of the contempt

19 The circumstances immediately surrounding the contempt have been described above. So too has the background arising from the relationship between Ms Young, on the one hand, and Mr Young and the Contemnor, Ms Smith, on the other hand.

20 As at the time of the sentencing proceedings Ms Smith and Mr Young lived in the Property, a lavish apartment in Pyrmont, which, subject to the orders of the Court (Sackar J) is presently owned by Ms Smith as joint tenant with the trustee in bankruptcy of Mr Young. It is those premises that is the subject of a mortgage to Westpac, granted by Ms Smith, as a result of which Westpac provided a $5.8 million loan.

21 The monies that constituted the loan were provided to a corporate entity of which Ms Smith is the sole director and shareholder.

22 On the material before the Court the calculated estimate of the market value of the Property is between $4.6 million and $6.9 million (Affidavit Angela Skocic, 19 October 2016). I consider that calculation more reliable than the “as is” value of $4 million (Affidavit Krista Emma MacPherson at [4] and KEM-I thereto).

23 The plaintiff is owed approximately $3 million, pursuant to orders of this Court of 23 April 2013, by Mr Young. The orders followed the malicious prosecution proceedings reference to which is provided above: Young v State of New South Wales & Ors; Young v Young (No 2) [2013] NSWSC 330. Those monies have not been paid. Mr Young transferred 50%, being his share in the Pyrmont premises to Ms Smith and, as earlier stated, rendered himself bankrupt.

24 The money received as a result of the mortgage of the relevant premises was utilised for a business venture by the Contemnor through her company, Smith & Smith Investments Pty Ltd. Westpac appointed receivers and sold the hotel purchase with those funds. Apparently, the sale returned an insufficient amount to satisfy the mortgage and Westpac had not released Ms Smith in respect of the mortgage on the Pyrmont premises.

25 The hotel was sold in November 2015 for approximately $6 million, which while in excess of the original maximum facility with Westpac of $5.8 million, represented a shortfall of approximately $800,000, presumably as a result of the cost of sale and enforcement and interest (Affidavit Krista Emma MacPherson at [11]-[12]).

26 As was made clear in the Judgment on Guilt, the Contemnor was well aware that the Court had restrained her from dealing with the property in question.

27 Ms Smith’s awareness of the conditions imposed upon her by the Court is evidenced by the application made by Ms Smith that the orders of the Court be replaced by an undertaking on her part not to deal with the Property. Notwithstanding that knowledge, and in spite of it, Ms Smith obtained a financial advantage by deliberately dealing with the Property in contravention of the orders of the Court. She did so, at (east in part, for the purpose of obtaining a financial advantage. It seems, although it is unnecessary to determine this question, that part of the rationale for Ms Smith’s conduct also related to malice against Ms Young, either on her own part or reflecting the malice and state of mind of Mr Young.

28 The contempt is a very serious one. It is a deliberate and contumacious breach of orders issued for the protection of a party and, in the process, dealing with property that belonged to the plaintiff in these proceedings.

29 Further, the overwhelming inference is that the entire scheme was designed to thwart the plaintiffs attempts to obtain from Mr Young the damages that the Court had awarded. It involved the circumvention of a number of orders of the Court. It involved the transfer of the Property so as to ensure that Mr Young had no assets in his name to which the Judgment debt could attach and it involved a deliberate breach of orders of the Court for the purpose of obtaining a business or commercial advantage.

30 I consider the contempt a serious one and to be categorised as both civil and criminal contempt. The conduct is well above the mid-range in objective seriousness for a contempt. Further, the semi-public disregard and disobedience of orders of the Court is a significant undermining of the authority of the Court and affects the administration of justice.

Subjective circumstances

31 The Contemnor has relied upon a number of exhibits, some of which have been referred to above. Ms MacPherson exhibited to her Affidavit the valuation on an “as is” value basis of the Property and media coverage relating to Ms Smith’s conduct and/or the Judgment on Guilt, together with other Judgments in the wider justiciable controversy. Part of the material upon which the Contemnor relies is an issue or issues relating to her health.

32 Ms Smith’s health issues are, on the evidence adduced in the proceedings, considerable. I have been provided a report by clinical psychotherapist, Ms Odelia Carmon and a report by Professor Frederick Ehrlich OAM. There are also reports from Dr Jerry Greenfield, endocrinologist, Dr Michael Talbot, Dr Nesran Varol, Dr Julie Epstein, consultant physician, reports on imaging to various doctors and reports from her general practitioner, Dr Dror Schmuelly.

33 The Contemnor refers to the fact that she has no criminal history. Nor has she previously been charged with any criminal offence. The contempt proceedings are the first ever contact with a penalty or punishment proceedings before a court.

34 It is necessary to deal with the medical issues, although, in so doing, the Court will seek not to disclose unnecessarily matters that are and ought to remain confidential. Some disclosure is necessary. In or about May 2010, Ms Smith was diagnosed with a 1.5 cm meningioma which encased the carotid artery causing some deformity and elongation. There was some inferior extension, but otherwise the cerebral MRI showed no abnormalities. The meningioma was removed and by May 2015 there was no evidence of any recurrence and her brain had stable appearance and no recurrence.

35 In 2009 Ms Smith suffered from a neurological disorder and seizures seemingly related to a multisystem failure after a mosquito bite in South Africa in December 2005. A number of treatments were attempted, which were unsuccessful but, ultimately, she was treated with Nutropin which resulted in her being able, once more, to walk and to give up reliance on a wheelchair, as was previously the situation. She will continue to have balance problems and to use a walking stick.

36 A summary of the conditions suffered by Ms Smith is contained in the report of Dr Schmuelly of 6 February 2015, which forms part of Ex 2 in the proceedings.

37 Professor Ehrlich’s report of 28 September 2016 also forms part of Ex 2. He refers to the multisystem breakdown relating to a virus from the mosquito bite and also to the history given to him of three heart attacks, a kidney failure, lung failure and major neurological problems as a consequence of which she spent three years in a wheelchair.

38 Professor Ehrlich referred to the effect of these illnesses on her business ventures which she was required, during that period, to “sell … at a loss” and “her feelings when having to deal with distress sales”. He also referred to a series of family tragedies, with numerous deaths, having to attend funerals and cope with relationship problems.

39 At the time, according to the history given to Professor Ehrlich, she was consuming approximately 2 bottles of wine each day and a half a bottle of single malt whiskey.

40 The family tragedies seem to have affected Ms Smith more as a consequence of her place in the Samoan community and the fact that members of her family of origin were the founding fathers of the Samoan Congregational Church. She also fulfils major familial and cultural duties assigned to her by her family (Ex 3).

41 Professor Ehrlich suggests that Ms Smith was “unaware of the Court order which was issued whilst she was overseas” and that “she was not made aware of it on her return”. With respect to Professor Ehrlich, he may have been given that history but the history is inconsistent with the events in Court and in the precincts of the Court, including applications made by her through counsel which disclose a clear understanding of the nature of the restrictions imposed upon her.

42 Professor Ehrlich suggests that “her capacity for processing information and applying effective judgement must be considered to have been significantly impaired”. The report was not the subject of cross-examination and I accept that opinion.

43 Nevertheless, the opinion is based upon some assumptions of fact, which are not borne out. The Court has already referred to the awareness by Ms Smith of the orders issued and her understanding of the orders that Issued. Further, the breakdown in her relationship with Mr Young, to which Ms Smith referred Professor Ehrlich, either did not occur at the time or was not at all acrimonious. In evidence as Annexure A to the Affidavit of Angela Skocic of 20 October 2016 are photographs of Ms Smith with Mr Young taken and posted on Facebook at a time during which it was said their relationship had “broken down”.

44 The other issue to which reference needs to be made is the report of clinical psychotherapist, Ms Odelia Carmon. I will not detail the history recited by Ms Carmon. Ms Smith did not give evidence. Some of that history would require direct evidence for it to be taken into account as part of the early childhood of Ms Smith, particularly the allegations of abuse from the age of nine until the age of 22 years.

45 I accept that Ms Smith’s actions may result, at least in part, from a life filled with responsibilities to others and unfulfilled personal expectations and her need to become secure, independent and self-sufficient. do so without necessarily accepting the history that may have led to that.

46 I also accept a degree of cultural tension that defines Ms Smith’s self-image and causes problems with self-management. The report from Ms Carmon expresses the view that Ms Smith genuinely regrets her action in breaching her obligations to the Court. Unfortunately, that was not the subject of any evidence from Ms Smith and J have significant doubts as to the degree of Ms Smith’s remorse.


47 The Court accepts that there are a number of subjective mitigating factors in determining an appropriate sentence. I accept that the Contemnor has had a significant medical and psycho-social history, involving a brain tumour and a number of other illnesses, some of which were caused by an unfortunate viral infection from and/or in reaction to a mosquito bite in Africa.

48 Ms Smith was 46 years of age at the time of the contempt, namely February 2015. As has been made clear earlier in these reasons, the Contemnor has not before been before a court and is entitled to the leniency of a first offender. accept, also, that there was some impairment to Ms Smith’s capacity for executive decision making on a rational basis around the time of the contempt.

49 I do not accept that the Contemnor and Mr Les Young had severed their relationship at the time of the contempt or very soon thereafter. I do accept that the Contemnor deliberately and contumaciously contravened the order of the Court prohibiting her from dealing with the Property, which she mortgaged in order to obtain a benefit of $5.8 million (or the use of the funds for business purposes). I also accept that the breach of the order was part of a wider plan the effect of which was intended to deprive Ms Young of enforcing other Court orders, cocooning the assets into the name of the Contemnor and away from Mr Young, and thereby seeking to prevent Ms Young from enforcing her judgments.

50 Further, the conduct of transferring the property from Mr Young to the Contemnor (and, in the case of the Contemnor, accepting that transfer) and mortgaging the property, was done without any notice to any person, in circumstances where Ms Smith was at that time before the Court. The transactions were deliberately concealed from the Court and Ms Smith allowed the proceedings to continue on a false premise, known to her and which she hid from others. Part of that process included misleading Westpac as to the position of the apartment and its history.

51 It is clear that the Contemnor was motivated, in part, by financial gain and probably as a matter of malice towards Ms Young. The former has been proved beyond reasonable doubt. The latter is disregarded because it has not been proved to that required standard. The contempt (and the larger financial arrangement of which it formed part) was otherwise performed for the benefit of Mr Young, her then partner.

52 As previously stated, an assessment of the objective seriousness of the offence puts it above the mid-range in seriousness and it is clear that the contempt offence was not, in the least, technical. It was a wilful, deliberate and contumacious contempt being an intentional disobedience involving a conscious defiance of the authority of the Court and a deliberate attempt to subvert the orders imposed upon her.

53 As a consequence Ms Smith’s intentional conduct also involves the knowing defiance of the Court’s order and authority and the sentencing must achieve a purpose that involves both general and specific deterrence.

54 The consequence of the mental and other medical conditions of the Contemnor render the general and specific deterrence less significant than it might otherwise have been and render the Contemnor Jess appropriate as an example in relation to general deterrence. Ms Smith’s behaviour was described as “surreptitious” by the Court (Young v Smith (No 2) [2015] NSWSC 1267 at [36]-[37]. However, some general and specific deterrence is required. The medical conditions of the Contemnor, including her restricted mobility, make prison a more onerous punishment.

55 Further, the fact that the business for which Ms Smith borrowed the money did not succeed is a matter wholly unrelated to the contempt. The money was borrowed for the purpose of making a profit. The mortgage was effected in order to gain security for the borrowed monies.

56 Notwithstanding the comments in the report of Ms Odelia Carmon, there has been no apology or public expression of contrition.

57 Moreover, the publicity occasioned in relation to the conduct of Ms Smith js not an extra curial punishment. It is the natural result of conduct by a person in utter defiance of the orders of a court. In the absence of the rule of law, we would all live in a state of chaos. Courts adjudicate the rights of the members of society as between themselves. It is not for a member of society to snub that adjudication for self-interest.

58 If the published material about the conduct of Ms Smith was defamatory, then Ms Smith would have a cause of action. I do not consider the publicity given to the conduct of Ms Smith or the Judgments of the Court concerning her conduct to be a form of extra curial punishment. Nor, in this case, do consider that it ameliorates the punishment that otherwise ought to be imposed.

59 As a consequence, the Court shall impose a penalty. I reiterate the comments made in relation to financial penalties where the motive is financial gain. Democracy, as we know it, depends upon the rule of law and the obedience of members of the community of the orders of the Court.

60 Moreover, I do not accept the submission, put on behalf of Ms Smith, that no damage or prejudice has been suffered by the plaintiff. The stress associated with litigation of this kind and the years of litigation leading to the orders that ultimately were made by the Court, involve a stress beyond the stress of winning or losing and beyond the stress associated with the requirement to meet legal costs to enforce rights that ought not have needed to be litigated.

61 Notwithstanding the subjective circumstances to which Ms Smith has pleaded in relation to her conduct, I consider, bearing in mind both the objective and subjective circumstances of the offence, that a custodial sentence is warranted. I also consider that the only proper disincentive to other persons seeking to obtain a profit by the deliberate defiance of Court orders is to impose a monetary penalty.

62 The Court makes the following orders:

(1) The Court records a conviction for the offence of contempt committed by Josephine Aapa Smith (“the Contemnor”);
(2) The Court sentences the Contemnor to a term of imprisonment of 6 months, fixed term. The Court suspends execution of the whole of the sentence for a period of 6 months and directs that the Contemnor be released from custody on condition that she enter into a good behaviour bond for the said period of 6 months. The sentence will commence on and from 25 October 2017;
(3) The Court imposes a fine on the Contemnor of $50,000, in addition to the foregoing sentence of imprisonment;
(4) The Contemnor shall pay the plaintiffs costs of and incidental to these proceedings on an indemnity basis;
(5) Any party who seeks a different or special order as to costs may apply within seven (7) days of the date of this Judgment by filing a submission with the Associate to his Honour Justice Rothman. Such submission shall be no more than three (3) pages in length. Any party affected by any such application may reply to said application by a submission of the same length within 7 days of receipt of the application.


Barbanera v Barbabera Anors: Estate of the late Antonio Barbanera [2017] NSWSC 357

John Barbanera is the oldest son of Antonio Barbanera and Maria Barbanera. Antonio died on 3 1 October 2014 and Maria November 2009.

John has three younger siblings Nunzia, Peter and Angela. Angela died in April 2015 and is survived by her husband Nick and their only child Giuliana.

John was excluded from his father’s will and he brought proceedings under the succession act for provision out of his late father’s estate, Greg Walsh acted on his behalf.

The hearing was heard and determined by His Honour Justice Slattery of the Supreme Court NSW Sydney.

His Honour heard evidence over two days, 12 and 13 December 2016. There is no doubting, that the proceedings were bound to involve a recounting of difficult emotional issues involving the lives of John and his siblings.

John over many years was an extremely hard worker and quite successful businessman. He was married to Pina and they have two children.

His Honour has set out in detail in his judgement the history of home life in the family home in Haberfield between 1976 to 1991.

His Honour observed that John as the first born in the family regarded himself as having a solemn duty and entitlement and as such this caused him to be regarded “the role is giving him authority to control the personal lives of his sibling’s particular of his sisters”. His Honour details a number of life events which had significantly impacted upon John and his siblings over so many years.

John’s late father attached a statutory declaration his will dated 23 April 2008. His Honour referred to the contents of that Statutory Declaration and judgement.

His honour referred to other events including visits to his late mother before her death in 2009 and what occurred at his mother’s funeral in November 2009.

Justice Slattery noted the deletion of any reference to John from Maria’s funeral documents and made a finding that he did not accept that there was any reasonable basis for Peter and Nancy to fear what John might do at his mother’s funeral.

At his father’s funeral once again there was no mention of John and this clearly the impact of public humiliation to John His Honour made reference to the back cover of the mass book for his late father’s funeral omitting to making reference to John. The exclusion of John was noted by His Honour as follows:

“caro ed amato marito della defunta Maria, adorato padre e suoero di Angela e Nick Bouyioukos, Nancy e Antonio Brunetti, Peter e Maryanna Barbanera, orgoglioso nono di Giuliana, Antonia, Leonardo, Donatella, Dante. …”

Justice Slattery set out the applicable legal principals in particular that of Singer v Berghouse (No.2) (1994) 181 CLR 201. His Honour then examined in detail John’s financial and personal position. His net position was $5076502.00.

His Honour also referred in detail to the financial position to John’s siblings and the health problems of Angela’s husband.

His Honour made a finding that John’s summons should be dismissed subject to further argument as to what costs orders are conveyed.

SMH – Warring children ignore judge’s warning about fight over father’s will


Alex Simmons sustained serious injuries as a result of an accident that occurred on 11 April 2007 whilst he was riding his bicycle through a car park adjacent to the St George Sailing Club.  He struck a boom gate that had been closed across a motor vehicle entrance to a car park.  The accident resulted in a below knee amputation of his left leg.

On 27 September 2013 Hall J delivered the principle judgment in the proceedings Simmons v Rockdale City Council [2013] NSWSC 1431.  An order was made that verdict and judgment be entered in favour of Alex Simmons against Rockdale Council in the sum of $928,000 and that judgment be in favour of the Club.

Mr Campbell SC and Mr Sheller appeared on behalf of Alex Simmons and Mr Watson SC appeared on behalf of the Council.  A dispute arose between the parties as to whether the Plaintiff was liable to pay the Club’s costs and if so should they be awarded on an indemnity basis from the date of the Club’s offer of compromise or whether Mr Simmons was entitled to a Bullock or Sanderson order in respect of his costs liability to the Club.

Liability to pay the Club’s cost on an indemnity basis

His Honour observed that an offer of compromise must be a real and genuine offer Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368.

On behalf of Mr Simmons it was submitted the Club’s offer was “an invitation to surrender” and His Honour particularised the basis of that submission.

Bullock or Sanderson Order

In the event that Mr Simmons was found liable to pay the costs of the Club he should be entitled to a Bullock or Sanderson Order from the Council.  The arguments of the Plaintiff were referred to by his Honour [para 16].

Council’s Submissions

The Council accepted that it is liable for the costs of both the Plaintiff and the Club.  It however opposed the Bullock or Sanderson Order and the basis of this was referred to by His Honour [para 21]

Reasonableness of not accepting the Offer of Compromise

Hall J observed that the reasonableness of the party refusing an offer amounts to an important feature in determining whether an order for indemnity costs should be made.  The reasonableness must be assessed as at the date of the offer and without the benefit of hindsight: Barakat v Bazdarova [20102] NSWCA 140.

His Honour made a finding that given the lack of clarity on the material available to the Plaintiff as to the arrangement between the Council and the Club, he did not consider the Plaintiff’s failure to accept the Offer of Compromise can be regarded as unreasonable [para 63].

Absence of Information to Support the Club’s offer requiring capitulation by the Plaintiff

His Honour found that he did not consider the Plaintiff had acted unreasonably in not accepting the Club’s Offer of Compromise.  See Leichhardt Municipal Council v Green [2004] NSWCA 341.

Whether a Bullock or Sanderson Order should be made

His Honour referred to Gould v Vaggelas (1985) 157 CLR 215.  His Honour made a finding that it was reasonable for the Plaintiff to have sued the Club [para 79].

The conduct of the unsuccessful defendant, the Council

His Honour referred to an Affidavit sworn by Greg Walsh on 21 November 2013 which relied upon his earlier Affidavit of 26 October 2010.  Walsh referred to evidentiary statements of James Garcia a cleaner that had been employed as a contractor by the Club and also a statement of the General Manager of the Club Keith Langelaar.  Mr Walsh stated that none of those statements mentioned what he refers to as “any rationale about when and why the gate was to be open.” [para 92].

His Honour noted that Mr Walsh stated in his Affidavit to his state of belief that it was possible that the Club was instructed in a manner that constituted a more formal delegation as to why the gates needed to be opened and closed at certain times and that it embraced that responsibility.    As such there was a real issue as to whether the Council had effectively delegated to the Club the opening and closing of the boom gate.  Mr Walsh referred to Mr Lay’s evidence.  [paras 91-98].

His Honour ultimately was not satisfied that in the circumstances and at his discretion a Bullock or Sanderson Order ought to be made against the Club.

Reid v Wright [2014] NSWSC 1110

In this matter Greg Walsh acted for Christine Reid who claims damages for professional negligence against her former solicitor, Diane Wright.

The proceedings were commenced by statement of claim filed in the Supreme Court Sydney on 2 August 2013. By Notice of Motion filed 30 June 2014 the Defendant, Diane Wright sought an order that the proceedings be transferred to the Supreme Court of Queensland. The application was brought pursuant to s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987.

The application was heard by McCallum J. McCallum J observed that the principles to be applied in determining an application under the cross-vesting legislation was considered by the High Court in BHP Billiton Ltd v Schultz [2004] HCA 612; (2004) 221 CLR 400.

The Plaintiff retained the Defendant between February 2008 and February 2011 to act for her in respect of a property settlement with her ex-husband. Ms Reid alleges that Ms Wright failed during that time to give advice as to the importance of instituting proceedings promptly and to take steps otherwise to protect her interests. The legal service was to be provided pursuant to the retainer were in the area of family law, which is governed principally by Commonwealth legislation. Ms Wright’s retainer was terminated in February 2011.

After the determination of the retainer a dispute arose as to the payment of Ms Wright’s fees. Ms Wright alleged that Ms Reid initially agreed to pay her fees as assessed in a “short form assessment” but that, after the assessment had been completed, she reneged. That dispute is the subject of the in the Magistrates Court of Queensland.

Her Honour noted the submission made by Mr Sheller on behalf of Ms Reid that there was significant unexplained delay in seeking a transfer. He relied upon r 44.5 of the Uniform Civil Procedure Rules 2005. Mr Curtin SC who appeared on behalf of Ms Wright contended that rules of court ought to be applied with a degree of flexibility.

McCallum J observed that the rule plainly contemplates that parties should ordinarily turn their minds to the issue of cross-vesting as soon as practicable after the commencement of the proceedings. That was not to say that it would be inevitably fatal to the success of a cross-vesting application but nevertheless it is an important matter to be taken into account.

Mr Sheller submitted to Her Honour that a cross-vesting application calls for a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.

McCallum J concluded   in the interests of justice the Supreme Court of New South Wales was the more appropriate court to determine the proceedings.

Turia Pitt and RacingThePlanet

Greg Walsh acted for Turia Pitt who was injured in a fire while competing in an Ultramarathon in the Kimberley region of Australia. Mr Walsh commenced proceedings and the case against RacingThePlanet was resolved on confidential terms satisfactory to both parties.

ABC News – Ultramarathon runner Turia Pitt, burnt during race in Kimberley, WA, reaches multi-million-dollar settlement.

The Guardian – Ultramarathon burns victim Turia Pitt settles with race organiser.

Motor Vehicle Accident – MV as next friend for MM and SM v D

On 4 August 1996 MM was a passenger (in utero) that was driven by her father and had been built, rebuilt and modified as Hot Rod.

The vehicle was being driven on an outer Western Sydney Road and whilst being driven by D in negotiating a right hand bend on the roadway he lost control of the motor vehicle and SM suffered catastrophic injuries.

SM was admitted to WestmeadHospital where she underwent emergency surgery.  She suffered horrific injuries including a brain injury and as a result was rendered totally blind.

MM was delivered by Caesarean Section suffering from Hyaline Membrane Disease, Intraventricular Haemorrhage and associated Hydrocephalus.    These conditions were causally related to her prematurity (25 weeks) and extremely low birth weight (714g).

MM remained as an inpatient at WestmeadHospital from the date of the accident until 14 October 1996.  She suffered from Post-haemorrhagic Hydrocephalus, Periventricular Leukomalacia, chronic lung disease and Retinopathy of prematurity.    Her mother remained in WestmeadHospital for nine months.

MM was eventually discharged into the care of devoted grandmother MV who had the onerous task of not only caring for her catastrophically injured daughter SM, but also her grand-daughter MM.

MV applied herself in an absolutely devoted way to the ongoing care and support of her tragically injured daughter and grand-daughter.

Greg Walsh was instructed to act for SM and MM.  The next friend was MV.  As a result of the devoted efforts of MV and due to intensive rehabilitative treatment SM was eventually able to live with her mother and daughter in the most difficult of circumstances.  Her disabilities were such that she required constant care and ongoing rehabilitative treatment.

MM experienced neurological problems including a blocked shunt.  She underwent operative care by her very experienced and devoted neurosurgeon, Dr Chaseling.

MM suffered from Cerebral Palsy and significant difficulties with her gait.  She was treated by many specialists and gradually improved due to the devoted efforts of these medical and other practitioners.

In time and indeed over many years MM gradually improved.  This no doubt was not only due to the tremendous efforts of her doctors and other specialists but the absolute devotion of her grandmother.

As a result of the complex nature of MM’s injuries and disabilities and despite proceedings being instituted in the Supreme Court relatively shortly after the accident, MM’s matter was not resolved until February 2014.  Thus Greg Walsh in effect had been acting for MM for approximately 16 years.

Although there were complex issues as to causation the matter was eventually resolved for an amount of $4 million plus out of pocket expenses.

AA v BB [2013] NSWSC1956

In this matter Greg Walsh acted for AA in a hearing before Barr AJ in the Supreme Court of NSW.

The Plaintiff is the daughter of the Defendant and CC.  She is now 19 years of age.  The Defendant began sexually interfering with the Plaintiff when she was five and continuing until she was twelve.  Plaintiff sought aggravated and exemplary damages, interest and costs.

The Defendant agreed with the facts pleaded including those relevant to aggravated damages.  He also agreed that exemplary damages were appropriate.

Barr AJ set out the particulars of the assaults pleaded including the effects on the Plaintiff.  His Honour acknowledged that the effects upon the Plaintiff had been profound and in particular noted the impact of the abuse upon the Plaintiff’s capacity to maintain relationships including her sibling and her mother.

His Honour noted the tragic history of the Plaintiff including attempting to kill herself by cutting her throat.  She was saved in emergency surgery but was committed to the care of mental health services.  Since 2011 the Plaintiff has suffered seizures and has descended into coma.

A report of Dr Colette Hourigan was entered as was a lengthy report of Dr Patricia Jungfer.

His Honour awarded the Plaintiff damages as follows:

  • General damages $200,000;
  • Future medical expenses $75,000;
  • Future economic loss $250,000;
  • Aggravated damages $100,000;
  • Exemplary damages $100,000.

Total $725,000.