Dunne v NGI Savannah Living Communities Pty Ltd
[2025] QCA 167
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- Dunne v NGI Savannah Living Communities Pty Ltd[2025] QCA 167
- Add to List
Dunne v NGI Savannah Living Communities Pty Ltd[2025] QCA 167
Dunne v NGI Savannah Living Communities Pty Ltd[2025] QCA 167
SUPREME COURT OF QUEENSLAND
CITATION: | Dunne v NGI Savannah Living Communities Pty Ltd [2025] QCA 167 |
PARTIES: | NEVILLE MARTIN DUNNE (appellant) v NGI SAVANNAH LIVING COMMUNITIES PTY LTD ACN 613 046 290 (respondent) |
FILE NO/S: | Appeal No 2113 of 2025 SC No 11263 of 2018 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2025] QSC 92 (Bowskill CJ) |
DELIVERED ON: | 9 September 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 August 2025 |
JUDGES: | Boddice and Doyle JJA and Martin SJA |
ORDERS: |
|
CATCHWORDS: | COURTS AND JUDGES – CONTEMPT – PARTICULAR CONTEMPTS – DISOBEDIENCE OF ORDERS OF COURT – where the respondent obtained freezing orders restraining the appellant from disposing of or dealing with his assets in Australia up to a specified amount – where the appellant subsequently transferred his shareholdings and resigned as sole director in three companies – where the respondent brought an application for civil contempt alleging breach of the freezing orders – where the appellant was found guilty of contempt in respect of three charges – where each of the charges was particularised in a composite form comprising the transfer of shares and resignation as director – where the appellant contends that paragraph 5 of the freezing orders is not broad enough to prohibit him resigning as sole director of the various companies – where the respondent contends that the only essential element of the charge was the transfer of the shares such that it was unnecessary to prove the resignation contravened the freezing orders – whether the term “deal with” in the freezing orders extended to resignation as a director – whether the primary judge erred in finding that the concept of “dealing with” was broad enough to include the appellant’s resignation as sole director of the various companies – whether the composite form of the charges required every aspect of the formation of the charge to be proved beyond reasonable doubt Berghofer v Wicks [2024] QSC 4, considered Bromley v Muswellbrook Coal Co Pty Ltd (1973) 129 CLR 342; [1973] HCA 56, cited Coward v Stapleton (1953) 90 CLR 573; [1953] HCA 48, cited Lakatamia Shipping Co Ltd v Nobu Su [2015] 1 WLR 291; [2014] EWCA Civ 636, cited Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395; (1985) 67 ALR 652; [1985] FCA 35, considered Matthews v ASIC [2009] NSWCA 155, considered University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28, cited |
COUNSEL: | D A Savage KC, with M J Downes, for the appellant D P de Jersey KC, with P Williams, for the respondent |
SOLICITORS: | Enyo Lawyers for the appellant GRT Lawyers for the respondent |
- [1]BODDICE JA: I agree with Doyle JA.
- [2]DOYLE JA: On 13 May 2025 Bowskill CJ found the appellant (Mr Dunne) guilty of the contempt specified in three charges being charges 3, 4 and 5 set out in the application filed 6 November 2024.
- [3]This appeal is from those findings.
Background
- [4]The respondent, NGI Savannah Living Communities (NGI Savannah) commenced proceedings against various defendants, including Mr Dunne and a company MP01 Pty Ltd, claiming amongst other things damages for misleading and deceptive conduct in connection with the acquisition and management of a retirement village. It obtained freezing orders in respect of the defendants (Orders). These were initially obtained ex parte but were later continued until they lapsed in August last year.
- [5]NGI Savannah succeeded in obtaining a judgment against Mr Dunne and MP01 Pty Ltd, which remains unsatisfied. Mr Dunne is now bankrupt. NGI Savannah obtained leave to proceed with its contempt application.
- [6]The charges of contempt arose out of alleged non-compliance with the terms of the Orders. Relevantly the Orders provided by paragraph 5(a) that “[t]he first defendant [Mr Dunne] must not remove from Australia or in any way dispose of, deal with or diminish the value of his assets in Australia … up to an unincumbered value of AUD$3,700,000 until 5pm on the return date.”
- [7]Paragraph 13 of the Orders provided an extended definition of the ‘defendant’s assets’ to include –
“(a) all of the defendant’s assets, whether or not they are in the defendant’s name and whether they are solely or co-owned;
- any assets the defendant owns as a trustee;
- any asset which the defendant has power, directly or indirectly, to dispose of or deal with as if it were the defendant’s own (the defendant is to be regarded as having such power if a third party holds or controls the asset in accordance with the defendant’s direct or indirect instructions); and
- the following assets in particular:
- Any debt (payable now or in the future) to a defendant.
- Cash held (now or in the future) by a defendant.
- Any money in any bank account.
- Any shares owned or held by a defendant.
…”
- [8]The evidence establishes that on or about 14 March 2023 (during the currency of the Orders) the following events occurred –
- Mr Dunne, who was at the time the sole director and shareholder of MP01 Pty Ltd, transferred his shareholdings to Phantom Cigar Pty Ltd and resigned as director.
- Mr Dunne, who was the sole shareholder and director of Phantom Cigar Pty Ltd, transferred his shares in that company to Lifestyle Resorts 685 Pty Ltd and resigned as its director.
- Mr Dunne, who was also the sole director and shareholder of Lifestyle Resorts 685 Pty Ltd, transferred his shares in that company to Phantom Cigar Pty Ltd and resigned as director.
- [9]Each of the companies was a trustee and there is no evidence that the shares in them had a worth beyond their par value (a nominal sum in each case).
- [10]The consequence of this set of transactions is that –
- Mr Dunne once held all of the shares in all three companies but thereafter held no shares in any of them;
- Mr Dunne had once been the sole director of each but in turn resigned from those roles;
- Phantom Cigar Pty Ltd is in the position of holding all the shares in Lifestyle Resorts 685 Pty Ltd which in turn seems to hold all of the shares in Phantom Cigar Pty Ltd (which in turn holds all of the shares in MP01 Pty Ltd).
- [11]The efficacy of these transactions is assumed although unexplained.
- [12]The application for contempt was only made against Mr Dunne and not MP01 Pty Ltd (or any other entity).
Primary Judge’s approach
- [13]The Chief Justice correctly identified that in order to prove a civil contempt involving the breach of an order four things were required, namely –
- that the order is clear and capable of compliance;
- that the alleged contemnor had knowledge of the terms of the order;
- that his act or omission breached the terms of the order; and
- that these things were proved beyond reasonable doubt.
- [14]The Chief Justice was satisfied as to each of those matters, and it is only the third which is in issue in this appeal. The essential reasoning which is the focus of this appeal appears in paragraphs [64]-[66] of the Chief Justice’s reasons which are as follows:
“[64] The plaintiff submits that, in each case, the conduct the subject of charges 3, 4 and 5 was in breach of paragraph 5(a) of the freezing order – which restrained Mr Dunne from disposing of his assets. I am satisfied that, as Mr Dunne’s shares held in the various companies are plainly ‘his assets’, the transfer of those shares to other entities does contravene paragraph 5(a) of the order.
[65] The only argument against this on behalf of Mr Dunne is that in each case, the charge is a composite one (combining transfer of shares and resignation as a director) and, since the freezing order did not restrain Mr Dunne from resigning as a director of any company, that conduct cannot be said to contravene the freezing order. The argument is that the charge fails, because the second part of it is not a breach of the freezing order.
[66] I reject that argument. I accept the plaintiff’s submission that what is restrained by paragraph 5 of the freezing order is ‘dealing with’ his (Mr Dunne’s) assets, and that concept is broad enough to capture resigning as the sole director at the same time as transferring his shares – as a result of which Mr Dunne not only divested himself of the property comprising the shares, but also of any control over the company.”
The Issues on Appeal
- [15]The grounds of appeal and submissions made on behalf of Mr Dunne in summary contend:
- that paragraph 5 of the Orders is not broad enough to prohibit Mr Dunne resigning as sole director of the various companies (whether or not at the same time as transferring his shares in them) and that the primary judge is wrong to conclude otherwise;
- that each of charges 3, 4 and 5 is expressed as a composite charge, the components of which comprise Mr Dunne transferring shares he held and his resigning as director. It is contended that a failure to establish that the latter component was a contravention of the Orders meant that the charge of contempt as a whole ought to have failed;
- that it is too late for NGI Savannah now, on appeal, to contend (as it does by a Notice of Contention) that the contempt can be established even if resignation as director is not established to be a dealing with assets in contravention of paragraph 5 of the Orders.
The Charges
- [16]The application filed by NGI Savannah gave particulars of five charges, but, as mentioned, Mr Dunne was found guilty only in respect of charges 3, 4 and 5. The nature of the issues to which they give rise are common and it accordingly is convenient to set out in full only one of them, and noting that the other charges follow the same format (with the shareholding and office of directorship varying on each). Charge 3 was in the following terms:
“[Charge 3] On or about 14 March 2023 Neville Martin Dunne transferred his shareholding in MP01 Pty Ltd ACN 169 614 993 to Phantom Cigar Pty Ltd ACN 656 803 879 and resigned as a director of MP01 Pty Ltd ACN 169 614 993.
Particulars
At all material times:
- the fully paid share capital of MP01 Pty Ltd ACN 169 614 993 was $10.00, consisting of ten $1.00 ordinary shares; and
- before 14 March 2023 Neville Martin Dunne was the sole director and shareholder of MP01 Pty Ltd ACN 169 614 993.”
To Deal
- [17]The Orders required that Mr Dunne must not “in any way dispose of, deal with or diminish the value of any of his assets…”.
- [18]The Chief Justice correctly concluded that the expanded definition of ‘defendant’s assets’ did not apply to make the assets of any of the companies an asset of Mr Dunne: Reasons at [38].
- [19]There can be little doubt that the transfer of his shares in each of those three companies constituted a prohibited dealing in “his assets” within the meaning of paragraph 5 of the Orders. That is what the Chief Justice found at [64]. No challenge is made to that finding as such.
- [20]The Chief Justice, however, further concluded that the concept of a prohibition upon dealing with his assets “is broad enough to capture resigning as the sole director at the same time as transferring his shares – as a result of which Mr Dunne not only divested himself of the property comprising the shares, but also of any control over the company”: Reasons at [66].
- [21]This finding cannot, in my view, be understood as the Chief Justice making a finding that the office of director (or the control of the assets of the company or trusts) was itself an asset of Mr Dunne. Certainly, the Chief Justice does not express such a finding. Were it to be understood in that way, then in my view it would be an error. The office of director is a position under the constitution of the relevant corporation and the Corporations Act 2001 (Cth) which confers certain powers, duties and responsibilities on the officeholder. It enables a director who is the sole director to act as the company or as the controlling mind of the company in important respects. Neither the office itself nor the control it affords over assets of the company meet any orthodox description of it being an asset itself, or if it is, that it is an asset of the officeholder or shareholder.
- [22]As he had done below, Mr de Jersey KC, for NGI Savannah, contended that Mr Dunne could be said to have dealt with his assets (namely the shares) by transferring them but also by resigning from each company of which he had been sole shareholder and director and therefore give up all control of the company. This is not put as a dealing with the company’s assets or with an asset of Mr Dunne comprising the office of directorship or the rights of control, but with the shareholding in that company.
- [23]The submission was supported on the basis that the expression ‘deal with’ is not limited to transferring shares but would capture other things.
- [24]It may be that a shareholder could be said to deal with his shares in a variety of ways other than transferring them.
- A sole shareholder and who is sole director might be said to have engaged in a dealing with the shares by causing the company to denude itself of, or diminish, its assets and thereby affect the worth of the shares (though I would prefer to view such activity as captured by the prohibition of diminishing the value of the shares): Lakatamia Shipping Co Ltd v Nobu Su [2015] 1 WLR 291 at [23], [43].
- It is not alleged or proven here that any reduction in the value of shareholdings took place (as distinct from the change in the holder of the shares).
- By its terms, for paragraph 5 of the Orders to be contravened it is essential that some action is taken with respect to, so as to amount to a dealing with, the shares.[1] In a different case, there may be scope to contend that a sole shareholder who does not take steps to prevent a director from denuding a company of assets (to take an extreme example), or from issuing shares so as to water down the shareholder’s interest, might be said to have dealt with his shares in some way. It is unnecessary to express any further view about such possibilities as the charges in this case do not contain any allegation of this kind.
- [25]The Chief Justice did not find that the resignations of themselves were a dealing with Mr Dunne’s shares. Rather the Chief Justice referred to those resignations occurring at the same time as the share transfers and divesting himself of the shares and control over the company.
- [26]It is possible that, by the finding in [66], the Chief Justice was doing no more than concluding that what occurred were two related events, one of which was a prohibited dealing with shares, and the resignation of the office of director was such a part of that transfer as to be still within the broad scope of that one dealing with the shares.
- [27]But that is not readily reconciled with the language used. That is because the Chief Justice appears to describe the effect of the resignation and divesting of control of the company as a dealing with shares as distinct from a part of the related events which did constitute the dealing with the shares, namely their transfer. The context for the finding in [66] is important. In the preceding paragraph the Chief Justice recited the contention made on behalf of Mr Dunne that the composite charge failed because the second part of it (the resignation) was not a breach of the freezing order. The Chief Justice rejected that submission. I read that as a rejection of it in its entirety rather than merely rejecting that it followed that because the resignation was not itself a breach of the Orders the composite charge had not been established.
- [28]However, an erroneous conclusion as to that aspect of the charge does not affect the conclusion in the Reasons at [64] that the contravention had been established by the (mere) transfer of the shares. It remains necessary to consider the next topic.
The Compound Charge
- [29]The second issue raised on behalf of Mr Dunne focusses on the terms in which the charges themselves were expressed. The charges identify, as the relevant particular, that on or about a particular date Mr Dunne transferred his shareholdings in the company and also that he resigned as a director of that company. This might suggest that the author had in mind that a contravention of paragraph 5 of the Orders would be committed only by the combination of both acts, and that the reference to Mr Dunne’s resignation as director of each of the various companies was not included in the particulars of the charge merely as part of a description of the overall transaction in which the shares and only the shares were dealt with.
- [30]For Mr Dunne it is contended that the charge is expressed in a compound form and that the law requires the party moving for the finding of contempt to establish each of those elements of the charge beyond reasonable doubt, failing which the charge ought to be dismissed in its entirety.
- [31]The core question is whether the elements of the charge include each fact included in the statement of the particulars of the charge even if not otherwise essential to the contravention of the freezing order? A convenient starting point for this discussion is the summary of principles expressed in Berghofer v Wicks [2024] QSC 4 commencing at paragraph 15 where his Honour Burns J stated (emphasis added):
“[15] As I have previously observed, the jurisdiction of the court to punish for contempt is both inherent and provided for under Chapter 20 of the Uniform Civil Procedure Rules 1999 (Qld). Because the liberty of the subject is potentially at stake, it is well established that strict compliance with the rules of procedure is required in a proceeding for contempt. It is equally well settled, and for the same reason, that nothing short of proof to the criminal standard will suffice in order to make out such a case. Of course, although it has been observed that a proceeding for contempt is essentially criminal in nature, it is not a proceeding that can be equated with a trial on indictment. Rather, it is a proceeding in the civil jurisdiction of the court and, as such, the UCPR apply…
[16] When a party moves the court to punish someone for contempt, the onus is at all times on that party. That said, although all of the elements of a charge of contempt must be made out, the particulars of the charge do not need to be made out in their entirety; it is enough if those particulars which are established by the evidence are sufficient to constitute proof of the essential elements of the charge.
[17] In order to prove a charge of contempt involving the breach of a court order, it must be established that ‘the order is clear and capable of compliance, that the alleged contemnor has knowledge of the terms of the order and has by his act or omission breached the terms of the order’. The ordinary rules of construction apply, it not being the case that an order cannot be enforced unless the language of the undertaking is unambiguous and certain. To the contrary, if the order ‘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 ... as a possible meaning, the fact that that meaning results from a process of construction and involves a choice of possible meanings does not ... preclude the court from enforcing the order ... in the sense which the Court assigns to it’.” (citations omitted).
- [32]The particular aspect adverted to in the highlighted part of this judgment draws upon the New South Wales Court of Appeal decision of Matthews v ASIC [2009] NSWCA 155. In that case, in October 2000 Santow J had made a number of orders including, by Order 8, that Matthews be permanently restrained from undertaking either directly or indirectly, the business of:
- advising other persons about securities; and/or
- publishing securities reports,
except as otherwise permitted by the Corporations Law.
- [33]By Order 12 Matthews was further restrained from undertaking directly or indirectly the business of dealing in securities, except as otherwise permitted by the Corporations Law.
- [34]He was charged with breach of those orders in the following terms:
“…
- The [appellant], Stephen Lewis Matthews, is guilty of contempt of this Court in that, in breach of Order 8, on or about 13 June 2008, the [appellant] directly undertook the business of advising other persons about securities by posting a letter dated 13 June 2008 to approximately 1,650 persons ….through which the [appellant] recommended that the recipients acquire shares [in a particular company] by or through:
- lending monies to the [appellant] or a ‘new company vehicle’ established by or to be established by the [appellant]; and/or
- acquiring shareholders in a ‘new company vehicle’ established by or to be established by the [appellant],
which was not permitted by the Corporations Law or by its replacement, the Corporations Act 2001.
…
- The [appellant], Stephen Lewis Matthews, is guilty of contempt of this Court in that, in breach of Order 12, on or about 13 June 2008, the [appellant] directly undertook the business of dealing in securities by posting a letter dated 13 June 2008 to approximately 1,650 persons, who were the trustees of self managed superannuation funds, through which the [appellant] made or offered to make an agreement and, attempted to induce the recipients to make or to offer to make, an agreement:
- for or with respect to acquiring and/or subscribing for; and/or
- the purpose or purported purpose of which was to secure a profit or gain through acquiring and/or subscribing for,
shares in a company presently trading on the Australian Stock Exchange which was ‘an Australian brand name in its industry’ and which had ‘high public recognition’ by or through:
- lending monies to the [appellant] or a ‘new company vehicle’ established by or to be established by the [appellant]; and/or
- acquiring shareholders in a ‘new company vehicle’ established by or to be established by the [appellant],
which was not permitted by the Corporations Law or by its replacement, the Corporations Act 2001.”
- [35]Tobias JA recorded:
“[33] The appellant submitted that in order for him to be found in breach of Order 8 as alleged in Charge 2, it was incumbent upon ASIC to prove beyond reasonable doubt that the appellant:
- directly;
- undertook the business;
- of advising other persons about securities;
- by posting the letter;
- through which the appellant recommended that the recipients acquire shares in the listed company which was ‘an Australian brand name in its industry’ which had ‘high public recognition’ by or through;
- lending monies to the appellant or a ‘new company vehicle’ established or to be established by the appellant; and/or
- acquiring shareholders in a ‘new company vehicle’ established by or to be established by the appellant;
- which was not permitted by the Corporations Law or by its replacement, the Corporations Act 2001.
[34] The appellant submitted that each of the elements I have emphasised in items (i), (vi) and (vii) in the preceding paragraph were neither considered nor found to be proven by the primary judge beyond reasonable doubt or at all.”
- [36]A similar submission was made with respect to the terms of charge 5. After referring to various authorities which refer to the seriousness of a charge of contempt and for the need for the alleged contemnor to have had the specific charge against him distinctly and clearly stated with an opportunity for him answer it, Tobias JA went on to state as follows:
“[48] None of the authorities referred to deal with the issue presented in the instant case which is whether each and every allegation cited in support of a charge must be made out before it can be found that the charge is established to the requisite standard of proof.”
- [37]As to that question, and after consideration of various authorities to which it is not necessary to refer in detail,[2] Tobias JA concluded as follows:
“[67] … Although it is true that all elements of a charge of contempt must be made out, it does not follow that what are, in effect, particulars of the charge should be made out in their entirety, provided that those particulars which are established by the evidence are sufficient to constitute proof of the essential elements of the charge. However, in the present case the appellant submitted that Charge 2 comprised eight elements and Charge 5 comprised 13 elements, all of which were required to be proved beyond reasonable doubt before the respective charges could be established. In my opinion this submission should be rejected. The elements of those charges are only those which are necessary to establish breach of the relevant order.”
- [38]Basten JA (at [153]) agreed with those reasons but added some brief additional reasons to which it is unnecessary to refer. Campbell JA (at [194]) relevantly agreed with the reasons of Tobias JA.
- [39]This same approach is expressed by Burns J in Berghofer, supra at [16] and by Professor Rolph in his work “Contempt” (2023) at 758.
- [40]A similar view was held by the majority in Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395. An interlocutory injunction had been granted to prevent the appellant from: (a) selling certain amusement machines; and (b) infringing the respondent’s copyright in them. The amended charge of contempt for contravention of this order was expressed as one identifying in subparagraphs (a) to (c) the fact of sale or participation in sales and in subparagraph (d) stating “by reason of the said sales [the appellant] infringed the [respondent’s] copyright …and so acted in contempt...”. There was no attempt at the hearing of the charge to prove that the copyright had existed or that infringement had been made out. Nonetheless the charges were upheld. McGregor J (with whom Fox J agreed) stated at 400 –
“It is not necessary to prove every assertion expressed or implicit in a charge; but only those ingredients which are essential to it. A failure to prove inessential material does not result in the charge failing … Subparagraph (d) …contains assertions that I consider inessential to the charge…”
- [41]This Court was taken to no authority which casts doubt on the propositions expressed in these authorities. Quite apart from these authorities, it is difficult to see why the position should be as urged on behalf of Mr Dunne, namely that a charge which contains factual particulars not necessary elements of the contempt, must nonetheless, if included in the charge, be proved to be contemptuous in order to sustain the charge. The principles summarised in Berghofer, supra, at [15] give effect to the nature of the proceedings as essentially criminal in nature but being dealt with by summary procedure in a civil court rather than on indictment.
- [42]In Coward v Stapleton (1953) 90 CLR 573, after referring to the relevant Rules of court, Williams ACJ and Kitto and Taylor JJ stated at 579-580 –
“Even apart from any such express provision, however, it is a well-recognized principle of law that no person ought to be punished for contempt of court unless the specific charge against him be distinctly stated and an opportunity of answering it given to him: In re Pollard [(1868) LR 2 PC 106, at p 120]; R v Foster; Ex parte Isaacs [(1941) VLR 77, at p 81]. The gist of the accusation must be made clear to the person charged, though it is not always necessary to formulate the charge in a series of specific allegations: Chang Hang Kiu v Piggott [(1909) AC 312, at p 315]. The charge having been made sufficiently explicit, the person accused must then be allowed a reasonable opportunity of being heard in his own defence, that is to say a reasonable opportunity of placing before the court any explanation or amplification of his evidence, and any submissions of fact or law, which he may wish the court to consider as bearing either upon the charge itself or upon the question of punishment.[3]”
- [43]No part of these principles requires that everything included in the statement of particulars of the charge must be proved if that which is proved establishes the elements of the contempt. That was done in the present case. The form of the charges recited the orders which were said to have been contravened and the way in which that was said to have been done. The essential elements of the charges were satisfied relevantly, by the proof of the transfer by Mr Dunne of his shares. The reference to Mr Dunne’s resignation in each charge was superfluous or, at best for Mr Dunne, included because it was thought by the drafter of the charges (erroneously) to be essential elements of the commission of the contempt. But in each charge that feature does not, in my opinion, serve to identify an essential element of the contempt.
- [44]There is no sense in which any injustice has been done to Mr Dunne by the form in which the charges were framed. No additional evidence could have been given bearing on the issue of the transfer of the shares if the additional reference to the resignation was excised from the charges. The facts were not controversial. No submission was advanced at all as to how Mr Dunne might seek to contend that the transfer of the shares which took place was not in contravention of the Orders.
- [45]It was submitted that he might, had the charge been confined to the transfer of shares, either purged his contempt or made an admission of guilt. The first of these can be put aside. It is the contemptuous conduct of Mr Dunne which should and could have been purged and this is not dependent upon an applicant first formulating a charge of that contempt. The latter point would carry some weight if Mr Dunne had admitted his breach of the Orders by the share transfers but disputed the charges only on the basis of the asserted composite form of them. In any event, this is an issue going to penalty and not to the correctness of the finding of the contempt with which this Court is concerned.
Case put by the respondent below
- [46]On behalf of Mr Dunne, it was finally contended that it is not open to NGI Savannah now to seek to uphold a finding of contempt on these charges on the basis that –
- the only element of the charge was the transfer by Mr Dunne of his shares in the various companies; and
- the further identification of his having resigned as director need not be proved as an essential component of the contravention.
- [47]It is said that it is not open for NGI Savannah to do this because doing so would be inconsistent with the manner in which it presented the case below. Before the Chief Justice, Mr Dunne contended that he was not guilty of the charges as framed because it was not a breach of a freezing order to resign as director. On behalf of Mr Dunne in this appeal it was submitted (in his written submissions in reply) that the only response on behalf of NGI Savannah below was to make the submission ultimately adopted by the Chief Justice in her Reasons at [66]. Thus, is it said what is now urged (in the Notice of Contention) is a departure from what was urged below and should not be allowed.
- [48]That submission for Mr Dunne should not be accepted. In the course of the submissions being made below, the Chief Justice raised with Senior Counsel for Mr Dunne why it was that “the second part of what Justice Burns says at paragraph 16 of Berghofer” is not relevant? The Chief Justice in particular read out that part of Justice Burns’ reasons which states –
“The particulars of the charge do not need to be made out in their entirety. It is enough if those particulars which are established by the evidence are sufficient to constitute proof of the essential elements of the charge.”
- [49]Senior Counsel for Mr Dunne rejected the application of that proposition. In reply, Senior Counsel for NGI Savannah started by expressly identifying that “[he does] rely on paragraph 16 of Berghofer”. In context, it would seem clear that NGI Savannah was advancing, albeit briefly, and by adopting what had been said by the Chief Justice, the very contention which it now advances in the Notice of Contention.
- [50]In those circumstances there is nothing inconsistent with NGI Savannah’s conduct in the case below and on appeal.
- [51]In any event, Mr Dunne overstates the limitations on a party advancing a modified argument on appeal. The authority he referred to is University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483 where the court said:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it will be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
- [52]The High Court in that case was concerned with the exceptional circumstances needed to permit a party to advance a new issue cutting across a perfected judgment of the court before whom it seeks to open the issue. On the other hand, in Bromley v Muswellbrook Coal Co Pty Ltd (1973) 129 CLR 342 at 349 Mason J (Barwick CJ and Stephen J agreeing) concluded of a new, legal argument raised for the first time in the High Court, that it being a question of law it needed to be decided.
- [53]Related considerations apply on this appeal. An appeal to this Court is by way of re-hearing: UCPR r 765. The powers of this Court are summarised in r 766(1). They include that it has all the powers and duties of the court that made the decision appealed from and to draw such inferences of fact as may be appropriate.
- [54]All of the evidence at first instance was given in affidavit form and other than for some objections, the oral hearing was concerned only with submissions as to the effect of that evidence. There is no challenge to any finding of fact.
- [55]The issues on appeal are confined to the proper construction of the Orders and the terms of the particulars of the charges, in light of the uncontroversial facts. Even if it were the case that NGI Savannah on appeal is seeking to advance a different argument from that which it advanced below, there can be no prejudice to Mr Dunne (other than as to outcome of the appeal) in that taking place.
- [56]In those circumstances it is wholly appropriate for this Court to proceed with the proper determination of those issues.
Conclusion
- [57]For the reasons given above:
- the elements essential to establish the charge relevantly are that Mr Dunne has dealt with his assets, namely shares in each of the three companies;
- it is no obstacle to the conclusion that the charges had been established, that non-essential aspects of the formation of the charge (reference to his having resigned as director of the companies) are not in themselves a contravention of the Orders;
- accordingly, the Chief Justice was correct to conclude that the charges were established;
- these conclusions are not inconsistent with the way in which NGI Savannah conducted the hearing before the Chief Justice.
Disposition
- [58]Accordingly:
- The appeal is dismissed.
- The appellant is to pay the costs of the respondent of the appeal.
- [59]MARTIN SJA: I agree with Doyle JA.
Footnotes
[1] The verb to deal is defined in the Macquarie Dictionary (2025) as meaning “to take action with respect to” something. I prefer this description to the remarks of Justice Andrew Baker in Navigator Equities Ltd v Deripaska [2020] EWHC 1798 (Comm) at [108] that – “To deal with the Shares required [party] to part with or create in another some ownership interest in them adverse to its own”.
[2] In particular the decision of the Full Court of the Supreme Court of SA in Diemould Tooling Service Pty Ltd v Oaten [2008] SASC 197 at [35].
[3] Noting the caution expressed in Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155 at [34] about the need still for precision in the charge despite it being sufficient to state the gist.