In the matter of Sunnya Pty Ltd [2023] NSWSC 1286

Supreme Court New South Wales

Medium Neutral Citation: In the matter of Sunnya Pty Ltd [2023] NSWSC 1286 Hearing dates: 20 October 2023, with further submissions received on 24 and 25 October 2023 Date of orders: 30 October 2023 Decision date: 30 October 2023 Jurisdiction: Equity - Corporations List Before: Williams J Decision: See paragraph [141] Catchwords: CIVIL PROCEDURE — Application for leave under r 11.8AA of the Uniform Civil Procedure Rules 2005 (NSW) to proceed against foreign defendant served outside Australia — Application granted - No question of principle CIVIL PROCEDURE — Pleadings — Amendment — Where plaintiffs seek leave to make extensive amendments to pleadings a matter of weeks prior to the commencement of the hearing — Risk to hearing dates and prejudice to defendants if hearing dates vacated — Plaintiffs responsible for delay in seeking leave to amend, save in respect of one category of the proposed amendments which would not put the hearing dates at risk if leave were granted — Application for leave to amend refused to the extent that the amendments were opposed and would require the hearing dates to be vacated — No question of principle. CIVIL PROCEDURE — Costs — Security for costs — Application by certain defendants for security for future costs of the proceedings — Whether reason to believe that plaintiff companies will be unable to pay the defendants' costs if ordered to do so — Application dismissed — No question of principle CIVIL PROCEDURE — Evidence by audio visual link — Where plaintiffs applied for direction under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) for a citizen of the People's Republic of China to give evidence by audio visual link (AVL) from the Hong Kong Special Administrative Region of the People's Republic of China — Where the place in the Hong Kong Special Administrative Region from which the plaintiffs propose that AVL facilities will used for the purpose of the witness giving evidence in these proceedings is taken to be part of this Court in New South Wales pursuant to s 5C of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), including for the purposes of laws relating to evidence, procedure, contempt of court and perjury — Whether this Court would intrude on the sovereignty of the People's Republic of China in respect of the Hong Kong Special Administrative Region by taking evidence by AVL from the witness in the Hong Kong Special Administrative Region — Where plaintiffs adduced no expert evidence of foreign law — Where no evidence of any law or rule permitting citizens of the People's Republic of China to give evidence in foreign proceedings by AVL from the Hong Kong Special Administrative Region — Where plaintiffs have taken no steps to obtain permission from relevant authorities in the People's Republic of China or the Hong Kong Special Administrative Region for the witness to give evidence in these proceedings by AVL from the Hong Kong Special Administrative Region — Where the evidence establishes that it is inconvenient for the witness to travel to Australia for the purpose of giving evidence due to his business commitments in the People's Republic of China — Where the evidence does not establish that the witness is unable to travel to Australia for that purpose — Application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 56(3), 58, 64, 64(2) Conveyancing Act 1919 (NSW), s 37A Corporations Act 2001 (Cth), ss 79, 181, 182, 237, 1317H, 1335 Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5B, 5B(1), 5B(2), 5B(2)(b), 5C, 5D Evidence Act 1995 (NSW), ss 21, 26, 28, 29, 30, 32, 128 Evidence Ordinance (Hong Kong), pt VIII Cases Cited: Agar v Hyde (2000) 201 CLR 552; (2000) 74 ALJR 1219; (2000) 173 ALR 665; [2000] Aust Torts Reports 81-569; [2000] HCA 41 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14; [2009] HCA 27 Barnes v Addy (1874) LR 9 Ch App 244; (1874) 43 LJ Ch 513; (1874) 43 LJ Ch 513; (1874) 22 WR 505 Cornelius v Global Medical Solutions Australia Pty Ltd (2014) 98 ACSR 301; (2014) 32 ACLC 14-010; [2014] NSWCA 65 Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564; [2004] NSWSC 664 General Steel Industries v Commissioner for Railways (1964) 112 CLR 125; (1964) 38 ALJR 253; [1965] ALR 636; [1964] HCA 69 In the matter of Sunnya Pty Ltd [2023] NSWSC 1104 Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213; (2011) 281 ALR 54; [2011] FCAFC 95 Motorola Solutions Inc v Hytera Communications Corporation Ltd [2020] FCA 539 The Case of the SS Lotus [1927] PCIJ Ser A No 10 Treloar Constructions Pty Ltd v McMillan [2016] NSWCA 302 Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986 Wollongong City Council v Legal Business Centre Pty Ltd [2012] NSWCA 245 Texts Cited: Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature 18 March 1970, 847 UNTS 231 (entered into force 7 October 1972) J R Crawford, Brownlie's Principles of Public International Law (Oxford University Press, 9th ed, 2019) M Davies, A S Bell, P L G Brereton, and M Douglas, Nygh's Conflict of Laws in Australia (LexisNexis, 10th ed, 2020) Category: Procedural rulings Parties: 2022/329426