Shun Sheng Pty Ltd v Jun Lei [2024] NSWCA 43

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Shun Sheng Pty Ltd v Jun Lei [2024] NSWCA 43 Hearing dates: 26 February 2024 Date of orders: 29 February 2024 Decision date: 29 February 2024 Before: Basten AJA Decision: (1) Set aside the release order made by the trial judge in the Equity Division on 9 February 2024, so that the sum in the controlled moneys account remains subject to the orders made on 7 December 2023 until further order. (2) Grant leave to Ms Lei and Mr Kitsos, prior to the disposal of the proceedings in this Court, to apply on three days' notice for a variation of order (1) based on changed circumstances. (3) Direct that a copy of these reasons be given to Parker J forthwith to allow his Honour to consider the appropriate course to be taken in relation to the matters listed before him pending hearing of the appeal on 29 April 2024. (4) Order that the costs of the motion be costs in the summons seeking leave to appeal. (5) Subject to any application for other orders to give effect to these reasons, otherwise dismiss the notice of motion. Catchwords: CIVIL PROCEDURE – asset preservation orders – application for discharge after judgment – claims rejected but subject to appeal – further accounting claims pursuant to judgment – risk of dissipation of assets – defendants resident in Australia – one defendant with history of misappropriating funds – findings of unreliable and untruthful evidence – no need for funds beyond those available for legal fees and daily living permitted under existing order CIVIL PROCEDURE – stay of proceedings – vacation of further trial dates pending appeal – issues reserved for future consideration – relevance of appeal to reserved issues – application for leave to appeal and appeal listed for concurrent hearing in two months –applicants not having requested stay from trial judge Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 51.44 Cases Cited: Jackson v Sterling Industries Limited (1987) 162 CLR 612 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1] (1986) 161 CLR 681; [1986] HCA 84 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 Shun Sheng Pty Ltd v Lei (No 2) [2023] NSWSC 1623 Shun Sheng Pty Ltd v Lei (No 3) [2024] NSWSC 72 Category: Procedural rulings Parties: Shun Sheng Pty Ltd (First Applicant) Sunshine Island (Aust) Pty Ltd (Second Applicant) Xue Feng Wei (Third Applicants) Jun Lei (First Respondent) Theo Kitsos (Second Respondent) Representation: Counsel: D B McGovern SC / D Allen (Applicants) N D Riordan / B R Adams (Respondents)