Sun v He (No 2) [2020] NSWSC 1298

Supreme Court New South Wales

Medium Neutral Citation: Sun v He (No 2) [2020] NSWSC 1298 Hearing dates: 21 August 2020 Date of orders: 25 September 2020 Decision date: 25 September 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Order that the first defendant, Xin He (also known as Ethan He), be sentenced, on charge 1, to a term of imprisonment of six weeks commencing from the date of his arrest. 2. Order that the first defendant, Xin He (also known as Ethan He), be sentenced, on charge 2, to a term of imprisonment of two weeks to be served concurrently with the sentence imposed for charge 1. 3. Order that the first defendant, Xin He (also known as Ethan He), be sentenced, on charge 3, to a term of imprisonment of two weeks to be served concurrently with the sentence imposed for charge 1. 4. Order that the first defendant, Xin He (also known as Ethan He), be sentenced, on charge 4, to a term of imprisonment of six weeks to be served concurrently with the sentence imposed for charge 1. 5. Order that a warrant issue for the committal of the first defendant, Xin He (also known to Ethan He), to prison for the said fixed term do issue. 6. Order that the warrant for the committal of the first defendant, Xin He (also known to Ethan He), to prison be executed forthwith. 7. Order that pursuant to s 61(3) of the Civil Procedure Act 2005 (NSW), r 2.1 of the Uniform Civil Procedure Rules 2005 (NSW) and the Court's inherent jurisdiction, the first, second, third, fourth, ninth, thirteenth, fourteenth and fifteenth defendants and first and second cross-claimants may not, without the consent of the plaintiff or the leave of the Court, rely upon: (i) any evidence in relation to, or documents purporting or asserted to contain, communications transmitted between the plaintiff and the first defendant by way of "WeChat" and/or "WhatsApp" and/or any other communications applications and services between January 2016 and January 2019, including without limitation those documents referred to in "Schedule A" of the notice of motion filed by the plaintiff on 11 February 2011; (ii) any evidence in relation to, or documents purporting or asserted to contain, communications transmitted between the first defendant and any other person (other than the plaintiff) by way of "WeChat" and/or "WhatsApp" and/or any other communications applications and services between January 2016 and January 2019, including without limitation those documents referred to in "Schedule B" of the notice of motion filed by the plaintiff on 11 February 2011; and (iii) any evidence in relation to, or documents purporting or asserted to be, spreadsheets created by the first defendant in tracking his receipt and expenditure of money received from or on account of the plaintiff. 8. Order that the first defendant pay the costs of the notice of motion filed by the plaintiff on 11 February 2020 and the notice of motion filed by the plaintiff on 18 February 2020. 9. List the proceedings for further directions on 19 October 2020 before the Registrar in Equity. Catchwords: CONTEMPT — Criminal contempt — Abuse of process — Contumacious breach of orders — Penalties — Imprisonment CIVIL PROCEDURE — Pleadings — Striking out — Abuse of process — Where disproportionate to strike out defence and cross-claim — Alternatives to striking out Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-61 Crime (Sentencing Procedure) Act 1989 (NSW), ss 3A, 5(1), 8, 9, 10, 10A,11, 48 Supreme Court Rules 1970 (NSW), Part 55 rr 6, 7, 13, 14 Uniform Civil Procedure Rules 2005 (NSW), Part 13, Part 14, r 2.1 Cases Cited: Allen v Tobias (1958) 98 CLR 367; [1958] HCA 13 Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 Australian Securities and Investments Commission v Matthews [2009] NSWSC 285; (2009) 71 ACSR 279 Australian Securities and Investments Commission v Michalik (No 2) [2004] NSWSC 1259; (2004) 52 ACSR 115 Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524; [2002] VSCA 197 Clark v State of New South Wales (2006) 66 NSWLR 640; [2006] NSWSC 673 Clark v State of New South Wales [2012] NSWCA 139 Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 D B Mahaffy & Associates v Mahaffy [2015] NSWSC 1959 Dowling v Prothonotary of the Supreme Court of New South Wales (2018) 99 NSWLR 229; [2018] NSWCA 340 Katsilis v Broken Hill Pty Co Ltd (1977) 18 ALR 181; (1977) 52 ALJR 189 Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90; [2017] FCAFC 111 Logicrose Ltd v Southend United Football Company Ltd (Chancery Division, 5 February 1988, unrep) Marsden v Amalgamated Television Services Pty Limited [2001] NSWSC 510 Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 Mirus Australia Pty Ltd v Gage [2018] NSWSC 35 Moody Kiddell & Partners Pty Ltd v Arkell [2013] FCA 1066 Palavi v Queensland Newspapers Pty Ltd (2012) 84 NSWLR 523; [2012] NSWCA 264 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Principal Registrar of the Supreme Court of New South Wales v Jando [2001] NSWSC 969 Reliance Financial Services Pty Ltd v Allyma Express Holdings Pty Ltd (No 3) [2019] NSWSC 511 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 126 Sun v He [2020] NSWSC 802 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Wood v Galea (1996) 84 A Crim R 274 Wood v Staunton (No 5) (1996) 86 A Crim R 183 Texts Cited: Wigmore on Evidence (3rd ed, 1940), Vol 2 Category: Sentence Parties: Bo Sun (Plaintiff) Xin He aka Ethan He (First Defendant) Third Master Capital Pty Ltd (ACN 622 150 369) (Second Defendant) Level 24 Holdings Pty Ltd (ACN 622 146 490) (Third Defendant) Fourth Master Capital Pty Ltd (ACN 622 745 420) (Fourth Defendant) Ethan He and Vivian Zhang Pty Ltd (ACN 169 451 718) (Ninth Defendant) Second Master Capital Pty Ltd (ACN 622 077 696) (Thirteenth Defendant) Lei Zhang (Fourteenth Defendant) EVE Property Solutions Pty Ltd (ACN 155 290 958) (Fifteenth Defendant) Representation: Counsel: M Pesman SC with T Bors (Plaintiff) R de Meyrick with D Currie (Defendants)