City Garden Australia Pty Ltd (subject to deed of company arrangement) as trustee for the Ming Tian City Garden Unit Trust v Gemi 130 Pty Ltd [2024] NSWCA 139

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: City Garden Australia Pty Ltd (subject to deed of company arrangement) as trustee for the Ming Tian City Garden Unit Trust v Gemi 130 Pty Ltd [2024] NSWCA 139 Hearing dates: 29 May 2024 Date of orders: 06 June 2024 Decision date: 06 June 2024 Before: Meagher JA Decision: 1. Order that until 5pm on 26 July 2024 or until otherwise provided by further order Mr Sam Kaso as receiver and manager over the 22 lots secured by two mortgages dated 15 October 2019 and as receiver and manager over all present and after acquired property of City Garden pursuant to the General Security Deed dated 15 October 2019 be restrained from: a. paying away moneys received or held as receiver and manager of City Garden to Gemi 130 and or Bridge Street; or b. assigning, charging or otherwise dealing with any property, real or personal, which is held as receiver and manager of City Garden to or at the direction of Gemi 130 and or Bridge Street. 2. Order that the costs of the present application be costs in the cross-appeal. 3. Direct that, if any of the interested parties or if the receiver and manager seeks to have the terms of order (1) amended, they should provide a note not exceeding two (2) pages to the Associate to Meagher JA by 5pm on Friday 7 June 2024. That note should set out any amendments proposed and the reasons why those amendments are sought. Each other party should respond in writing by 5pm on Tuesday 11 June 2024. The Court will then deal with any such application on the papers. Catchwords: APPEALS – interlocutory injunction pending appeal – where properties owned by cross-appellant subject to security interest in favour of third and fourth respondents to cross-appeal as lenders – whether receiver and manager appointed by lenders should be restrained from dealing with rental income and sale proceeds of properties pending appeal – no question of principle – injunction granted until conclusion of hearing of appeal Legislation Cited: Corporations Act 2001 (Cth), ss 127(1)(b), 128, 129 Uniform Civil Procedure Rules 2005 (NSW), r 25.8 Cases Cited: Correa v Whittingham [2013] NSWCA 263 Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 Texts Cited: Nil Category: Procedural rulings Parties: City Garden Australia Pty Ltd (subject to deed of company arrangement) as trustee for the Ming Tian City Garden Unit Trust (cross-appellant) Gemi 130 Pty Ltd (third cross-respondent) Bridge Street Capital No. 2 Pty Ltd (fourth cross-respondent) Mr Sam Kaso (receiver and manager of the cross-appellant) Representation: Counsel: F Lim (solicitor) (cross-appellant) H Somerville / M McGirr (third cross-respondent) M W Young SC (fourth cross-respondent) G Gee (Mr Kaso)