Yan v The Won Capital Pty Ltd [2024] NSWSC 758

Supreme Court New South Wales

Medium Neutral Citation: Yan v The Won Capital Pty Ltd [2024] NSWSC 758 Hearing dates: 11 June 2024 Date of orders: 21 June 2024 Decision date: 21 June 2024 Jurisdiction: Equity Before: Pike J Decision: (1) Pursuant to s 445D(1) of the Corporations Act 2001 (Cth), the Deed of Company Arrangement for the third defendant dated 18 February 2019 be terminated. (2) Subject to order 3 below, the first, second and third defendants pay the costs of these proceedings: (a) up to 30 June 2021 on the ordinary basis; and (b) from 30 June 2021, on the indemnity basis. (3) The first, second and third defendants pay the costs of and associated with the plaintiff's application under s 445D(1) of the Corporations Act 2001 (Cth) to terminate the Deed of Company Arrangement dated 18 February 2019. Catchwords: CORPORATIONS – voluntary administration – deed of company arrangement – application under s 445D(1) of the Corporations Act 2001 (Cth) to set aside deed of company arrangement – where significant delay in making application – where false and misleading information was material to voting composition – termination of deed of company arrangement COSTS – determination of costs – ordinary basis – indemnity basis – no question of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: ACN 613 909 596 Pty Ltd (formerly Minle Wine Negociants of Australia Pty Ltd) (subject to Deed of Company Arrangement) [2023] NSWSC 753 Allatech v Construction Management Group Pty Ltd [2002] NSWSC 293 Australian Securities and Investment Commission v Midland Hwy Pty Ltd (admin appointed) (2015) 110 ACSR 203; [2015] FCA 1360 Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd (2005) 226 ALR 510 Cappello v Home Building Pty Ltd (2023) NSWCA 109 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Sino Group International Limited & Anor v Toddler Kindy Gymbaroo Pty Ltd (subject to a Deed of Company Arrangement) (ACN 006 166 141) & Ors (2023) 168 ACSR 311; [2023] FCAFC 110 Tivo, Inc and Tivo Brands LLC v Vivo International Corporation Pty Ltd (subject to Deed of Company Arrangement) [2014] FCA 789 Waters v PC Henderson (Aust) Pty Ltd (1994) 254 ALR 328; [1994] NSWCA 338 Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2021] NSWSC 614 Yan & Spyrakis Trustee in Bankruptcy for Liu [2022] FCA 872 Yan v The Won Capital Pty Ltd [2023] NSWSC 1506 Texts Cited: Nil Category: Principal judgment Parties: Jianhua Yan (Plaintiff) The Won Capital Pty Ltd (First Defendant) Wensheng Liu (Second Defendant) GR Capital Group Pty Ltd (Third Defendant) Jason Lloyd Porter (Seventh Defendant) Representation: Counsel: D. Delany (Plaintiff) H. Insall SC (First to Third Defendants)