BCEG International (Australia) Pty Ltd v Xiao [2021] NSWSC 1027

Supreme Court New South Wales

Medium Neutral Citation: BCEG International (Australia) Pty Ltd v Xiao [2021] NSWSC 1027 Hearing dates: 22 July 2021 (further submissions received on 27 July, 30 July, 4 August and 5 August 2021) Date of orders: 16 August 2021 Decision date: 16 August 2021 Jurisdiction: Equity - Commercial List Before: Williams J Decision: See paragraph [100]. Catchwords: PRACTICE AND PROCEDURE – application for security for costs – where jurisdictional threshold satisfied – whether the plaintiff has a strong prima facie case on the material presently before the court – whether the court should assess strength of the plaintiff's case in circumstances where the defendants have exercised their privilege against self-incrimination PRACTICE AND PROCEDURE – application for asset preservation order – plaintiff sought order restraining the defendants from dealing with extensive property portfolio and the net proceeds of any sale – where good arguable case of fraud against some defendants, but no dealings with property calculated to frustrate the enforcement of any judgment in the two years since the commencement of the proceedings – where proposed form of asset preservation order not limited to assets up to the value of the plaintiff's claim PRACTICE AND PROCEDURE – application to set aside a notice to produce (in part) and certain subpoenas – no issue of principle PRACTICE AND PROCEDURE – application for leave to amend Summons and Commercial List Statement to plead additional claims relating to certain transfers of funds allegedly made or procured by the first and second defendant from the plaintiff to an offshore third party – whether allegations of fraud are adequately pleaded and particularised Legislation Cited: Corporations Act 2001 (Cth), s 198F Uniform Civil Procedure Rules 2005 (NSW), rr 14.4, 15.3, 42.21 Cases Cited: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 Farag v Blobal Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301 Frigo v Culhaci [1998] NSWCA 88 Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302 Re Motasea Pty Ltd (2014) 97 ACSR 589 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Vertical Australia Pty Ltd v Air Company Vertical-T LLC; Air Company Vertical-T LLC v Vertical Australia Pty Ltd [2012] NSWSC 719 Category: Procedural rulings Parties: BCEG International (Australia) Pty Ltd (Plaintiff) Yu Xiao (First Defendant) Yan Ying Chen (Second Defendant) Interlink Laboratory Pty Ltd (Third Defendant) Interlink Wagga Central Pty Ltd (Fourth Defendant) West Wyalong Marketplace Pty Ltd (Fifth Defendant) Representation: Counsel: Mr D Williams SC with Mr N Riordan (Plaintiff) Mr F Hicks SC with Mr S Hartford-Davis (Defendants)