In the matter of Sunnya Pty Ltd [2023] NSWSC 1104

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Sunnya Pty Ltd [2023] NSWSC 1104 Hearing dates: 24 August 2023 Date of orders: 12 September 2023 Decision date: 12 September 2023 Jurisdiction: Equity - Corporations List Before: Williams J Decision: See paragraph [78]. Catchwords: CORPORATIONS — Statutory derivative action — Application to bring proceedings on behalf of company — Whether leave should be granted and, whether leave should be granted conditionally on applicant giving certain undertakings and indemnities in relation to the costs of the proceedings. CIVIL PROCEDURE — Service outside Australia — Where plaintiffs contend that service outside Australia on fourth defendant company registered in the People's Republic of China is permissible without leave under Part 11 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) — Where fourth defendant has not filed an appearance in the proceedings — Where plaintiffs seek leave under UCPR r 11.8AA to proceed against fourth defendant — Where plaintiffs have purported to serve the defendant company by email and without providing the notice required by UCPR r 11.7 — Where plaintiffs sought order for substituted service as a means of sidestepping the requirement to serve that notice — Where evidence did not establish a basis for an order for substituted service, and such an order would not remove the need for plaintiffs to serve r 11.7 notice in any event — Where plaintiffs also sought an order dispensing with the requirement to serve the r 11.7 notice — Where evidence did not establish that that such dispensation would be appropriate in this case — Plaintiffs' application for leave under UCPR r 11.8AA adjourned pending service of fourth defendant in accordance with UCPR r 11.8AC, including UCPR r 11.7 notice. Legislation Cited: Civil Procedure Act 2005 (NSW), s 14 «中华人民共和国民事诉讼法» [Civil Procedure Law of the People's Republic of China] (People's Republic of China) National People's Congress, Order No 44, 9 April 1991, art 289 Corporations Act 2001 (Cth), ss 79, 232, 236(1)(a), 237, 237(2)(a), 237(2)(b), 237(2)(c), 237(2)(d), 237(2)(e), 242, 1317H Cases Cited: Arhill Pty Ltd v General Terminal Company Pty Ltd (1990) 23 NSWLR 545 Australian Securities and Investments Commission v Sweeney (No 2) (2001) 38 ACSR 743; [2001] NSWSC 477 Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 Huang v Wang (2016) 114 ACSR 586; (2016) 34 ACLC 16-022; [2016] NSWCA 164 In the matter of Wonga Pastoral Development Co Pty Ltd [2023] NSWSC 133 Independent Liquor & Gaming Authority v Melco Resorts & Entertainment Limited [2022] NSWSC 294 Mount Gilead Pty Ltd v Macarthur-Stanham (as executor of the Estate of the late Lee Macarthur-Onslow) [2023] NSWCA 37 Re Sunnya Pty Limited [2023] NSWSC 225 Song v Li [2021] VSC 617 Swansson v R A Pratt Properties Pty Ltd (2002) 42 ACSR 313; (2002) 20 ACLC 1,594; [2002] NSWSC 583 Wood v Links Golf Tasmania Pty Ltd (2010) 28 ACLC 10-042; [2010] FCA 570 Texts Cited: N/A Category: Procedural rulings Parties: Sunnya Pty Ltd (First Plaintiff) Jatcorp Limited (Second Plaintiff) Yinghan He (First Defendant) Yanxia Lu (Second Defendant) Guangzhou Aotea Biological Technology Pte Ltd (Third Defendant) Guangzhou Niurui Trading Co., Ltd (Fourth Defendant) Sunlife Healthfood Pty Ltd (Fifth Defendant) Yaqing He (Sixth Defendant) HLW Investments Pty Ltd (Seventh Defendant) Supermega Market Ltd (NZ) (Eighth Defendant) Megadairy Ltd (NZ) (Ninth Defendant) NZFDA Ltd (NZ) (Tenth Defendant) Representation: Counsel: Mr R Foreman SC with Mr G P Gee (First and Second Plaintiffs) Mr S Docker with Mr J Rodgers (First, Second, Fifth, Sixth, and Seventh Defendants)