Gong v Tasman Funds Management Pty Ltd [2023] NSWSC 1366

Supreme Court New South Wales

Medium Neutral Citation: Gong v Tasman Funds Management Pty Ltd [2023] NSWSC 1366 Hearing dates: 8 November 2023 Date of orders: 10 November 2023 Decision date: 10 November 2023 Jurisdiction: Equity Before: Elkaim AJ Decision: See paragraph 65 Catchwords: PRACTICE AND PROCEDURE – pleadings – amendment – application to amend statement of claim – where second plaintiff may not have been aware of the hearing – where proposed fourth defendant was not represented – whether there was sufficient explanation for the delay in bringing the motion – whether the delay was a result of a tactical decision – whether pleadings were defective or embarrassing. CIVIL PROCEDURE – parties – joinder CORPORATIONS – voluntary administration – Deed of company arrangement – whether leave required under s 444E(3)(c) of the Corporations Act 2001 (NSW) EQUITY – Trusts and Trustees – resulting trusts – Quistclose Trusts Legislation Cited: Corporations Act 2001 (Cth), s 444D, 444E Partnership Act 1892 (NSW), s 50A Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101 Decon Australia Pty Ltd v TFM Epping Land Pty Ltd (No 2) [2021] FCA 32 General Steel Industries Inc v Commissioner for Railways (NSW); (1964) 112 CLR 125; [1964] HCA 69 Gunns Ltd v Marr [2005] VSC 251 Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62; [2015] HCA 6 Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Ltd (in liq) [2015] FCA 1098 White v Shortall (2006) 68 NSWLR 650; [2006] NSWSC 1379 Category: Procedural rulings Parties: Benyi Gong (First Plaintiff) Qingju Tian (Second Plaintiff) Deshen Wang (Third Plaintiff) Ruiyong Hao (Fourth Plaintiff) Tasman Funds Management Pty Ltd (First Defendant) TFM Epping Land Pty Ltd (receivers and managers appointed) (Second Defendant) Sino-Au Property Investments Pty Limited (Third Defendant) Tasman Development Holdings Pty Ltd (Proposed Fourth Defendant) Philip Campbell-Wilson and Said Jahani of Grant Thornton as joint and several Receivers and Managers of TFM Epping Land Pty Ltd (Proposed Fifth Defendant) John Melluish and Stephen Mitchell as Deed Administrators of TFM Epping Land Pty Ltd (Proposed Sixth Defendant) Perpetual Corporate Trustee Limited (CAN 000 341 533) in its capacity as custodian for the QCAX Australian Property Income Fund (ABN 43 973 061 248) (Atlas) (Proposed Seventh Defendant) Representation: Counsel: Mr T Castle and Ms A Elizabeth (First, Third and Fourth Plaintiffs) Mr A Oakes (First and Third Defendants) Mr M Rose (Second Defendant and proposed Fifth Defendant)