Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L Wong, William Baptiste and David F Tau [1987] PNGLR 227

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J:
• Judgment Date: 03 July 1987
• Court: Supreme Court
• Citation: [1987] PNGLR 227
• Year: 1987
• Judgement Number: SC340

Full Title: Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L Wong, William Baptiste and David F Tau [1987] PNGLR 227

Supreme Court: Hinchliffe J

Judgment Delivered: 3 July 1987

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

YAP

V

TAN AND B & T ENGINEERING PTY LTD

AND WONG

AND BAPTISTE

AND TAU

Waigani

Hinchliffe J

26 May 1987

28 May 1987

1-4 June 1987

2-3 July 1987

CONTEMPT- Contempt of Court — Disobedience of court order — What constitutes contempt — Order directing delivery up of property to receiver manager — Belief that order stayed pending appeal — Obligation to obey order until discharged — Contempt made out.

CONTEMPT — Civil contempt — Disobedience of court order — Standard of proof — Beyond reasonable doubt.

CONTEMPT- Civil contempt — Punishment — Powers of — Scope of — Failure to deliver property to receiver manager pursuant to order -Fine of K5,000 for each charge proved.

The Court appointed a receiver and manager of the property of a company and made, inter alia, orders for the delivery up of certain property of the company to the receiver manager. In proceedings for punishment for contempt of Court in failing to comply with the directions in the order,

Held

(1) It is a civil contempt of Court to refuse or neglect to do an act required by a judgment or order, or to disobey a judgment or order requiring a person to abstain from doing a specified act.

Helmore v Smith (1887) 35 Ch D 436, followed.

(2) Where an order is made by a court of competent jurisdiction it is the obligation of every person against, or in respect of, whom the order is made, to obey it unless and until that order is discharged; the obligation extends to cases where the person affected by the order believes it to be irregular or even void.

Hadkinson v Hadkinson [1952] All ER 567 and Chuck v Cremer (1846) 47 ER 820, adopted and applied.

(3) The onus of proof in proceedings for civil contempt is proof beyond reasonable doubt.

Re Bramblevale [1970] Ch 128, adopted and applied.

(4) The powers of the Court to punish for civil contempt include, sequestration of the estate of the contemnor, committal to prison, a fine and or ancillary orders, for example, an injunction.

(5) In the circumstances and notwithstanding that the alleged contemnor believed that the orders of the Court were ineffective and/or had been stayed by the Court pending an appeal, three of the charges had been proved beyond reasonable doubt and the contempt being a serious one, fines of K5,000 should be imposed in each case.

Cases Cited

Brambervale, Re [1970] Ch 128.

Chuck v Cremer (1846) 1 Coop T Cott 205; 47 ER 205.

Hadkinson v Hadkinson [1952] P 285; 2 All ER 567.

Helmore v Smith (1887) 35 Ch D 436,

Public Prosecutor v Rooney (No 2) [1979] PNGLR 448.

Application for Punishment for Contempt

These were proceedings in which the receiver manager of a company applied to the Court to have punished for contempt of court a person who had failed to comply with the terms of the orders made by the Court.

Counsel

P Wright, for the receiver manager.

M White and N Kirriwom, for the defendant/contemnor.

N Roberts, for the defendant.

Cur adv vult

3 July 1987

HINCHLIFFE J: This is a notice of motion dated 17 February for application for punishment for contempt of court. A contempt of court is an act or omission calculated to interfere with the due administration of justice: see Bowen LJ in Helmore v Smith (1887) 35 Ch D 436 and 455. It is a civil contempt of court to refuse or neglect to do an act required by a judgment or order, or to disobey a judgment or order requiring a person to abstain from doing a specified act, or to act in breach of an undertaking given to the court by a person, on the faith of which the court sanctions a particular course of action or inaction.

The statement of charges annexed to the notice of motion is as follows:

"1. That between 10 December 1986 and 19 December 1986 the first defendant Tin Siew Tan did wilfully interfere with the receiver Robert G Goslin by removing dealing with and disposing of assets and stock of B & T Engineering Pty Ltd.

2. That between 19 December and 21 January 1987 the defendant Tin Siew Tan did wilfully disobey the order of this Court dated 19 December 1986 by removing dealing with and disposing of assets and stock of B & T Engineering Pty Ltd.

3. That on 6 January 1987 and 21 January 1987 the first defendant Tin Siew Tan did wilfully remove from the possession and control of Robert G Goslin one white truck Registered Number AEQ-990.

4. That between 6 January 1987 and 21 January 1987 the first defendant Tin Siew Tan did wilfully conceal by his servants and agents a white truck registration number AEQ-990 from the receiver manager G Goslin.

5. That between 6 January 1987 and 21 January 1987 the first defendant Tin Siew Tan did steal from the receiver of B & T Engineering Pty Ltd, Robert G Goslin, one white truck registration number AEQ-990 value approximately K8,000 (Eight Thousand Kina).

6. That between 19 December 1986 and 21 January 1987 the first defendant did wilfully breach the said order dated December 1986 of this Honourable Court by dismissing workers of B & T Engineering Pty Ltd who were subject to the authority and control of Robert G Goslin the receiver manager of B & T Engineering Pty Ltd.

7. That on 19 December 1986 the first defendant Tin Siew Tan did wilfully breach the said order dated 19 December 1986 of this Honourable Court by directing workers of B & T Engineering Pty Ltd who were subject to the authority and control of Robert G Goslin the receiver manager of B & T Engineering Pty Ltd to take holidays for two weeks and cease to work.

8. At the time of filing this motion, the defendant Tin Siew Tan wilfully failed to obey the order of 9 February 1987 personally delivered to him by Mr John Gawi on 9 February 1987.

9. On 15 February at the Boroko site, Tin Siew Tan wilfully disobeyed a lawful instruction of the receiver in that he refused to deliver over the motor vehicle and air conditioners as described in the order of 9 February 1987.

10. On 20 January 1987 at Boroko, Tin Siew Tan wilfully refused to deliver to Robert G Goslin motor vehicle AEQ-990 such vehicle being the property of B & T Engineering Pty Ltd and at the time under the control of Robert G Goslin."

The said orders of 19 December 1986 and 9 February 1987 were orders of Wilson J sitting as a Judge of the Supreme Court. There were numerous submissions put in the course of the hearing suggesting that it was never quite clear as to which court his Honour was sitting in when he made the said orders. I have no hesitation in finding that his Honour was sitting as a Judge of the Supreme Court. It is clear from his notation on the court file and I also accept the submission of Mr Roberts who was present at the time that particular point was considered by Wilson J. It seems to me that if there was any misunderstanding by Mr Tin Siew Tan's present Lawyers then it arose from the time the Lawyers received the file from the Lawyer who previously appeared for Mr Tin Siew Tan. As far as this Court is concerned there never was and there never should have been any misunderstanding after 19 December 1986.

The order of Wilson J on 19 December 1986 was as follows:

"1. Robert G Goslin be forthwith appointed as Receiver Manager of the business affairs of B & T Engineering Pty Ltd subject only to Paragraph 2 of this Order.

2. If by agreement in writing signed by both Lawyers on behalf of the parties they agree to substitute the name of an alternative Receiver Manager then this Order shall thereupon be amended to delete the name of Robert G Goslin and substitute the agreed name and in all other respects this Order shall be effective.

3. The costs and expenses of the Receiver Manager be reserved and in the event Supreme Court Appeal No 54 of 1986 does not proceed there be liberty to apply on seven days notice to all parties.

4. Lawyers for the plaintiff and defendant herein shall attend the callover to obtain an early Hearing date of hearing of the Appeal in the first sittings as a special fixture.

5. All steps shall be taken by the appellant and his Lawyers to obtain transcript, prepare books and indexes and be ready at the date of callover.

6. Until further Order the Registrar of Companies be restrained from accepting for lodging or registration in respect of B & T Engineering Pty Ltd any special resolution changing the share structure or class of shares or any return or allotment of shares until further Order.

7. The Receiver Manager be directed as follows until the hearing of the Appeal:

(a) In any official capacity he shall describe himself only as a Manager.

(b) He shall open separate bank accounts to identify his transactions.

(c) He shall use the letterhead of B & T Engineering Pty Ltd so long as he discloses thereon his name and that he is the Manager.

(d) The Receiver Manager is authorised to draw on Company funds to pay...