Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd [2024] NSWCA 174 Hearing dates: 11-12 July 2024 Decision date: 23 July 2024 Before: Ward ACJ; Leeming JA; Kirk JA Decision: 1. Dismiss the notice of motion seeking to adduce fresh evidence filed 19 April 2024. 2. Appeal dismissed with costs. Catchwords: BANKING AND FINANCE – standby letter of credit issued by Chinese bank to secure lender's/builder's obligations under construction contract – receivers appointed to beneficiary – receivers made demand on standby letter of credit on behalf of beneficiary – payment by issuing bank stopped by order of Chinese court – whether breach of contract by beneficiary with lender/builder rendered demand invalid – obligations of issuing bank independent of contract between lender/builder and beneficiary – standby letter of credit subject to Rules on International Standby Practices ISP 98 – whether appointment of receivers engaged rule concerning transfer by operation of law – whether interlocutory order made by Chinese court preventing payment a bar to entry of judgment – whether parallel proceedings in Australia and China an abuse of process Legislation Cited: Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Procedure Act 2005 (NSW), s 58 Corporations Act 2001 (Cth), ss 420, 428 Environmental Planning and Assessment Act 1979 (NSW), s 4.55 Evidence Act 1995 (NSW), s 140 Uniform Civil Procedure Rules 2005 (NSW), r 7.1 Cases Cited: Australian Mutual Provident Society v George Myers & Co Ltd (in liq) (1931) 47 CLR 65; [1931] HCA 31 BS Stillwell & Co Pty Ltd v Budget Rent-A-Car System Pty Ltd [1990] VR 589 Carron Iron Company v Maclaren (1955) 5 HL Cas 416; 10 ER 961 Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd [2008] FCAFC 136; 249 ALR 458 Collier v Country Women's Association of NSW [2017] NSWSC 1573 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33 Dedert Corporation v United Dalby Bio-Refinery Pty Ltd (2017) 59 VR 607; [2017] VSCA 368 Eastone Mining Pty Ltd v Eastone Holding Pty Ltd [2019] NSWSC 1850; 142 ACSR 38 Gaskell v Gosling [1896] 1 QB 669 Gosling v Gaskell [1897] AC 575 Griffin Energy Group Pty Ltd (Subject to Deed of Company Arrangement) v ICICI Bank Ltd [2015] NSWCA 29; 317 ALR 395 House v The King (1936) 55 CLR 499; [1936] HCA 40 In re Metropolitan Amalgamated Estates Ltd; Fairweather v Metropolitan Amalgamated Estates Ltd [1912] 2 Ch 497 Kawasaki Heavy Industries Ltd v Laing O'Rourke Australia Construction Pty Ltd (2017) 96 NSWLR 329; [2017] NSWCA 291 Kell & Rigby Holdings Pty Ltd v Lindsay Bennelong Developments Pty Ltd [2010] NSWSC 777 Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 Merton v Bank of Queensland Ltd [2013] NSWCA 68 Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133 Odtojan v Condon [2023] NSWCA 129 PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 Sheahan v Carrier Air Conditioning Pty Ltd (1997) 189 CLR 407; [1997] HCA 37 Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd [2022] NSWSC 59 Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 2) [2023] NSWSC 1405 Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 3) [2023] NSWSC 1596 Shun Sheng Pty Ltd v Lei (No 2) [2023] NSWSC 1623 Talifero v Asbestos Injuries Compensation Fund Ltd as Trustee for the Asbestos Injuries Compensation Fund (2018) 98 NSWLR 1107; [2018] NSWCA 227 Tavcol v Valbeet [2014] NSWSC 1563 United City Merchants (Investments) Ltd v Royal Bank of Canada [1983] 1 AC 168 Universal Publishers Pty Ltd v Australian Executor Trustees Ltd [2013] NSWSC 2021 Wolfenden v International Theme Park Pty Ltd (trading as Wonderland) [2008] NSWCA 78 Wood Hall Ltd v The Pipeline Authority (1979) 141 CLR 443; [1979] HCA 21 Young v Cooke [2017] NSWCA 33 Texts Cited: P Elligner and D Neo, The Law and Practice of Documentary Letters of Credit (Hart Publishing, 2010) Category: Principal judgment Parties: Shinetec (Australia) Pty Ltd (First Appellant) Shanxi Construction Investment Group Co Ltd (Second Appellant) The Gosford Pty Ltd (First Respondent) David Anthony Hurst (Second Respondent) David Henry Sampson (Third Respondent) Macquarie Bank Ltd (Fourth Respondent) (submitting appearance) Bank of China Ltd (Fifth Respondent) Representation: Counsel: F Assaf SC, M Karam, B Smith (Appellants) JT Gleeson SC, RJ May (First, Second and Third Respondents) J Kay Hoyle SC, T Scott (Fifth Respondent) Solicitors: Pinsent Masons (Appellants) Johnson Winter & Slattery (First, Second and Third Respondents) HWL Ebsworth Lawyers (Fourth Respondent) (submitting appearance) King & Wood Mallesons (Fifth Respondent) File Number(s): 2023/00465518 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division, Commercial List Citation: [2023] NSWSC 1405 Date of Decision: 20 November 2003 Before: Stevenson J File Number(s): 2021/220732 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The Gosford Pty Ltd ("Gosford") and Shinetec (Australia) Pty Ltd ("Shinetec") were parties to a "Design and Construction Head Contract", which provided that Shinetec would fund the first $37,000,000 of construction costs of a property development in Gosford, New South Wales. Shinetec agreed to provide a standby letter of credit in the amount of $37,000,000 to secure its funding obligation. Shinetec's parent company, Shanxi Construction Investment Group Co Ltd ("Shanxi"), procured a standby letter of credit in that amount in favour of Gosford from the Bank of China Ltd, Shanxi Branch. The standby letter of credit expired on 31 July 2021. On 26 July 2021 receivers were appointed to Gosford by a secured creditor. The receivers served a demand on the standby letter of credit on Bank of China on Friday 30 July 2021. On Monday 2 August 2021, Shinetec sought and obtained interlocutory relief from the Supreme Court of New South Wales. On the same day, Shanxi sought and obtained orders from the Taiyuan Intermediate People's Court, which have been extended subsequently, and presently remain in place until 24 July 2024. They have at all times bound the Bank of China, preventing it from making payment. In the Supreme Court of New South Wales, Shinetec sued Gosford, its receivers and their bank, Macquarie Bank Ltd, seeking to maintain that there was no entitlement to serve the demand on Bank of China. Shinetec withdrew its claim against that Bank well before trial, and disavowed fraud. Shinetec sought a declaration that the demand was "invalid and of no effect" and an order that the standby letter of credit be returned. Gosford by a cross-claim sued Bank of China, seeking judgment in the amount of the standby letter of credit, $37,000,000. The Bank's defences relied on the demand being signed by Gosford's receivers, and the order of the Taiyuan Intermediate People's Court. It did not allege fraud. The primary judge dismissed Shinetec's claim, and entered judgment in favour of Gosford, but in light of the order of the Chinese court, also issued a stay. Shinetec appealed, joining Shanxi as the second appellant. Shanxi and Shinetec contended that Gosford's demand on the standby letter of credit was invalid, or void, or of no effect, because the Construction Contract was suspended, but also because Gosford was subject to an "implied negative stipulation" in the Construction Contract that was breached when the demand was made. Shanxi and Shinetec also relied on the defences run by Bank of China in response to Gosford's cross claim, that the demand had been signed by Gosford's receivers, and the order of the Chinese court disentitled Gosford from obtaining judgment. The Court held, dismissing the appeal: (1) In the absence of any claim for fraud or unconscionability, any breach of the Construction Contract by Gosford did not mean that its call on the letter of credit was invalid or void or of no effect. It is axiomatic that, absent fraud or unconscionability, the issuing bank must pay if the documents presented are compliant. If the beneficiary is in breach, it will be liable in damages to its contracting party, but that gets determined at a trial, and is not a reason for the bank not to comply with its undertaking to pay: at [11], [134]-[140]. United City Merchants (Investments) Ltd v Royal Bank of Canada [1983] 1 AC 168, followed. (2) In the absence of fraud or unconscionability, an injunction may issue to prevent the beneficiary of a standby letter of credit from making a demand, where the beneficiary has promised only to make a demand in certain circumstances. Equity intervenes to prevent the demand being made, not because it is invalid (or "void" or "of no effect") as between beneficiary and bank, but because the beneficiary has promised its counterparty that it will only call on the security in certain circumstances. Equity will enforce that promise by an injunction, assuming it can be shown that damages are not an adequate remedy for the breach. In addition to quia timet injunctions, a mandatory injunction is available in principle, although there will often be powerful discretionary considerations telling against such relief. But neither Shinetec nor Shanxi ever sought such relief, either at trial or on appeal: at [12]-[13], [141]-[146]. Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd [2008] FCAFC 136; 249 ALR 458, Dedert Corporation v United Dalby Bio-Refinery Pty Ltd (2017) 59 VR 607; [2017] VSCA 368, Universal Publishers Pty Ltd v Australian Executor Trustees Ltd [2013] NSWSC 2021, Merton v Bank of Queensland Ltd [2013] NSWCA 68 and Tavcol v Valbeet [2014] NSWSC 1563, followed and applied. (3) The appointment of receivers to a beneficiary does not change the beneficiary's name. Nor does it mean that the receivers are authorised transferees of the beneficiary. The receivers act as agents of the company, getting in the company's property. When the Bank of China received confirmation from Gosford's bank that the demand was made on Gosford's letterhead and on its behalf, albeit signed by receivers acting for Gosford, there was no proper basis for the Bank of China not to comply, save for the order made by the Taiyuan Intermediate People's Court: at [14], [163]-[172]. Australian Mutual Provident Society v George Myers & Co Ltd (in liq) (1931) 47 CLR 65; [1931] HCA 31 and Sheahan v Carrier Air Conditioning Pty Ltd (1997) 189 CLR 407; [1997] HCA 37, applied. (4) The order obtained by Shanxi from the Taiyuan Intermediate People's Court which "suspended" the Bank of China's obligation to pay under the standby letter of credit did not extinguish the debt owed by the Bank to Gosford. It merely prevented the Bank from making payment for the time being. The order was interlocutory, expressed in the language of "suspending", was made without hearing from Gosford, and made it plain on its face that after the suspension expired, the Bank would have to pay: at [15], [182]-[190]. (5) When Shanxi sued Gosford in China, Shanxi said that Gosford had committed fraud. At trial in Australia, Shinetec disavowed any allegation of fraud. On appeal, neither Shinetec nor Shanxi maintained that Gosford or anyone acting on its behalf had committed fraud. Nonetheless, in this Court, Shinetec and Shanxi insisted that they were permitted to litigate in China irrespective of the outcome of the litigation in Australia. The parallel proceedings maintained in Australia and China were a clear case of an abuse of process: at [16]-[18], [191]-[197]. CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393-394; [1997] HCA 33 and Carron Iron Company v Maclaren (1955) 5 HL Cas 416; 10 ER 961, followed and applied. JUDGMENT 1. THE COURT: The Gosford Pty Ltd ("Gosford") and Shinetec (Australia) Pty Ltd ("Shinetec") were parties to a "Design and Construction Head Contract", which provided that Shinetec would fund the first $37,000,000 of construction costs of a property development in Gosford, New South Wales. Shinetec agreed to provide a standby letter of credit in the amount of $37,000,000 to secure its funding obligation. Shinetec's parent company, Shanxi Construction Investment Group Co Ltd ("Shanxi"), procured a standby letter of credit in that amount in favour of Gosford from the Bank of China Ltd, Shanxi Branch. The standby letter of credit expired on 31 July 2021. On 26 July 2021 receivers were appointed to Gosford by a secured creditor (Gemi 149 Pty Ltd). The receivers served a demand on the standby letter of credit on Bank of China on Friday 30 July 2021. The standby letter of credit and the demand are annexed to this judgment. 2. Some three years later, Bank of China has neither honoured nor dishonoured that demand. That is not said by way of criticism of the Bank. It came about because on Monday 2 August 2021, Shinetec sought and obtained interlocutory relief from the Supreme Court of New South Wales, and on the same day Shanxi applied for relief from the Taiyuan Intermediate People's Court, obtaining an order suspending payment the following day. The orders made by the Supreme Court of New South Wales were made ex parte, and remained in force for a few days, but thereafter continued, consensually, pending the trial, against parties other than Bank of China. The orders made by the Taiyuan Intermediate People's Court were also made ex parte. They have been extended subsequently, and presently remain in place until 24 July 2024. They have at all times bound the Bank of China. In March 2023, Bank of China itself approached the Shanxi Higher People's Court to seek a revocation of the orders, but its application was refused. 3. Two proceedings were tried over three days last November in the Commercial List of the Supreme Court of New South Wales. 1. First, Shinetec by summons sued Gosford, its receivers and their bank Macquarie Bank Ltd, seeking to maintain that there was no entitlement to serve the demand on Bank of China. Shinetec had originally joined Bank of China but withdrew its claim against that Bank well before trial. Shinetec did not contend that Gosford or anyone acting on its behalf had committed fraud when making a demand on the standby letter of credit. Shinetec sought a declaration that the demand was "invalid and of no effect" and an order that the standby letter of credit be returned. 2. Secondly, Gosford by a cross-claim sued Bank of China. Gosford said that Bank of China was in breach of its obligations under the standby letter of credit. It sought judgment in the amount of the standby letter of credit, $37,000,000. The Bank's defences relied on the demand being signed by Gosford's receivers, and the order of the Taiyuan Intermediate People's Court. It did not allege fraud. 1. The primary judge dismissed Shinetec's case and entered judgment on the cross-claim in favour of Gosford against Bank of China: Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 2) [2023] NSWSC 1405. 2. The Bank of China has not appealed from the $37,000,000 judgment entered against it. However, on 14 March 2024 Shinetec appealed (within the time permitted by the Uniform Civil Procedure Rules 2005 (NSW)), and it was subsequently permitted to join as the second appellant its parent company Shanxi, which had obtained the standby letter of credit, and to which the Bank of China would look for payment following a demand. 3. Normally an appellant submits that the primary judge was wrong to reject its submissions. Unusually, a substantial aspect of this appeal concerns arguments sought to be advanced by Shanxi and Shinetec which were not advanced by Shinetec at trial. In particular, Shanxi and Shinetec contend that Gosford's demand on the standby letter of credit was invalid, or void, or of no effect because Gosford was subject to an "implied negative stipulation" in the Construction Contract that was breached when the demand was made. 4. At the commencement of the hearing at first instance, and again at its conclusion, senior counsel who appeared for Shinetec at trial had sought to make that argument, but Shinetec was refused leave to do so. Shinetec and Shanxi also sought to advance in their appeal substantially the same arguments which had been made on behalf of Bank of China in response to Gosford's cross-claim concerning why the Bank was not required to make payment pursuant to the standby letter of credit. Gosford said that Shinetec should not be permitted to make arguments which it had not been permitted to make at trial, nor should Shinetec and Shanxi be permitted to make arguments which had been made by Bank of China but which the Bank chose not to make in this appeal. 5. The facts that Shanxi was not party to the proceedings at first instance and that Shinetec seeks to advance different arguments which had not been run at trial mean that a deal of the parties' submissions on appeal are procedural. We shall address them in due course. Unfortunately, the need to describe aspects of the procedural history of this litigation necessarily lengthens these reasons. Indeed, the parties' submissions about whether the appellants should be permitted to run new submissions occupied at least as much time at the hearing of the appeal as submissions about the substantive points themselves. We have concluded that Shinetec and Shanxi should not be permitted to run those arguments, because some were outside the issues argued and others were disavowed by Shinetec at trial. However, against the possibility that we are wrong, and because it is better that the parties' dispute be resolved substantively, rather than merely by reason of the procedural choices made along the way, we have also considered the arguments on their merits. 6. We have also concluded that the substantive arguments advanced by Shinetec and Shanxi are without foundation. They misapprehend when a demand on a letter of credit can be resisted, the nature of the appointment of receivers and the nature of interlocutory relief. 7. The relevant law is not especially complicated. 8. First, it was not contended either at trial or in this appeal that there was any fraud or unconscionability on the part of Gosford or its receivers when it made its demand. Even if Gosford had promised to Shinetec that it would only call on the standby letter of credit in certain circumstances, that did not mean that its call on the letter of credit was invalid or void or of no effect. As between the beneficiary of the standby letter of credit and the issuing bank, it is not to the point that a beneficiary of a letter of credit is in breach of contract when it makes a demand. It is axiomatic that absent fraud or unconscionability, the bank must pay if the documents presented are compliant. Of course, if the beneficiary is in breach, it will be liable in damages to its contracting party, but that gets determined at a trial, and is not a reason for the bank not to comply with its undertaking to pay. Any other position is antithetical to the basic notion of a standby letter of credit. 9. Secondly, it is also true that, in the absence of fraud or unconscionability, an injunction may issue to prevent the beneficiary of a standby letter of credit from making a demand, where the beneficiary has promised only to make a demand in certain circumstances. Decisions to that effect were at the forefront of Shinetec's and Shanxi's submissions in this Court. But equity intervenes to prevent the demand being made, not because it is invalid (or "void" or "of no effect") as between beneficiary and bank, but because the beneficiary has promised its counterparty that it will only call on the security in certain circumstances. Equity will enforce that promise by an injunction, assuming it can be shown that damages are not an adequate remedy for the breach. Most of the cases are cases of quia timet injunctions – where an injunction has issued before the demand has been made. There are occasional cases where an injunction has issued shortly after a demand has been made obliging the beneficiary to withdraw its demand, and we accept that in principle equity may command a beneficiary to withdraw or countermand its demand upon the issuing bank. But neither Shinetec nor Shanxi ever sought such relief, either at trial or on appeal. 10. Thirdly, the result is that when a compliant demand is presented upon a bank which has issued a standby letter of credit, in the absence of an allegation of fraud or unconscionability or an injunction, it must pay in accordance with its undertaking. This is the basal flaw in much of Shinetec's submissions at trial, and much of the submissions of Shanxi and Shinetec on appeal. 11. Fourthly, the appointment of receivers to a beneficiary does not change the beneficiary's name. Nor does it mean that the receivers are authorised transferees of the beneficiary. The receivers act as agents of the company, getting in the company's property. When the Bank of China received confirmation from Gosford's bank that the demand was made on Gosford's letterhead and on its behalf, albeit signed by receivers acting for Gosford, there was no proper basis for the Bank of China not to comply, save for the order made by the Taiyuan Intermediate People's Court. 12. Fifthly, the order obtained by Shanxi from the Taiyuan Intermediate People's Court which "suspended" the Bank of China's obligation to pay under the standby letter of credit did not extinguish the debt owed by the Bank to Gosford. It merely prevented the Bank from making payment for the time being. The order was interlocutory, expressed in the language of "suspending", was made without hearing from Gosford, and made it plain on its face that after the suspension expired, the Bank would have to pay. 13. Finally, when Shanxi sued Gosford in China, Shanxi said that Gosford had committed fraud. At trial in Australia, Shinetec disavowed any allegation of fraud. On appeal, neither Shinetec nor Shanxi maintained that Gosford or anyone acting on its behalf had committed fraud. Nonetheless, in this Court, Shinetec and Shanxi insisted that they were permitted to litigate in China irrespective of the outcome of the litigation in Australia. 14. Thus there are parallel proceedings in Australia and China, commenced on the same day by Shinetec and Shanxi, respectively, against Gosford. In Australia there has been a trial and an appeal, and there has been no allegation of fraud. Yet in China, Shanxi has alleged that Gosford has committed fraud, and relied on that basis in order to obtain orders suspending its bank's obligation to make payment to Gosford under the standby letter of credit. Shinetec and Shanxi maintain that they are permitted to litigate the validity of Gosford's demand in Australia without alleging fraud, and yet reserve to themselves an entitlement to run a further trial in China on the validity of Gosford's demand, this time on the basis that there is fraud. 15. Gosford said that this was an abuse of process. Shinetec and Shanxi said that there was no abuse of process. We agree with Gosford. Indeed, we regard this as a very clear case. Litigants are not permitted to bring parallel proceedings in two countries, and litigate some but not all of the issues in one country, reserving to themselves the right to litigate other aspects of the dispute in the second country. Doing so is unfair to other parties, and if left unchecked may bring the legal systems of both countries into disrepute. 16. The foregoing summarises our reasons for dismissing this appeal. The balance of these reasons takes the following form. First, we summarise the factual background, and then explain in some detail the events at the end of July and the beginning of August 2021 in which receivers were appointed to Gosford, a demand was made on the standby letter of credit, and the litigation commenced in New South Wales and China by Shinetec and Shanxi. Secondly, in light of the submissions to the effect that the case advanced on appeal diverged from what was run at trial, we summarise aspects of the trial. Thirdly, we summarise those parts of the reasons of the primary judge insofar as they are relevant to the appeal. Fourthly, we address each of the grounds of appeal pressed by Shanxi and Shinetec. Factual background 1. The dispute arises from a failed property development of land in central Gosford owned by the first respondent, Gosford. (Subsequent to the events giving rise to this litigation, in around June 2022 the land was sold to a third party for $32,000,000.) 2. Gosford had the benefit of a development consent described as "Approved Mixed Use Development, Commercial/Retail, Supermarket, Hotel and Shoptop Housing Development", granted by the local council. By letter dated 18 November 2019, the council modified that consent pursuant to s 4.55(1A) of the Environmental Planning and Assessment Act 1979 (NSW) (being of the view that doing so was a minor modification able to be done without further public consultation), so as to permit certain development, including "demolition of existing structures" to occur prior to the issue of a construction certificate. The Construction Contract 1. By "Design and Construction Head Contract" made on 15 June 2020 ("Construction Contract"), Gosford as "Principal" agreed with Shinetec as "Contractor" to design and construct the development. The "Formal Instrument of Agreement" stated that the Guaranteed Maximum Price (or GMP) was $185 million plus GST, and the rights, entitlements, liabilities and obligations of the parties were suspended until all conditions precedent were satisfied. One of the conditions precedent was "the Principal securing finance (on terms acceptable to the Principal) sufficient to meet the finance amount". 2. Clause 37.1A, titled "Contractor funded payment", acknowledged and agreed that: pursuant and subject to the terms of a separate agreement between the Contractor and the Principal, the Contractor has agreed to fund the payment of the first part of the GMP and direct design or construction-related costs of variations (but not Contractor additional entitlements), to the amount in the aggregate of the funding amount". 1. The "funding amount" was defined to be the amount in item 6A of an annexure. That definition took the following form: $37,000,000 (plus GST) and the parties acknowledge and agree that: (a) the Contractor shall provide a stand-by letter of credit (SBLC) in favour of the Principal from its parent company or nominee for the purpose of securing the Contractor's obligation to finance that part of the Works to which the funding amount applies; (b) the Principal must return the SBLC to the Contractor upon the earlier to occur of: (i) the termination of the contract; (ii) the whole of the funding amount being deemed to have been paid to the Contractor in accordance with clause 37.2(d). 1. The words "Terms & Conditions of funding subject to the loan agreement" were written in hand immediately after that definition. The Loan Agreement 1. So far as the evidence disclosed, there was no extant loan agreement at the time the Construction Contract was entered into. A "Loan Agreement" dated 26 November 2020 identified the development site and its purpose was to assist with Gosford's construction funding for that site. The Loan Agreement referred to an entitlement on the part of Gosford as borrower to draw down funds from time to time for the loan purpose. It was in the amount of $37,500,000 but nothing was said to turn upon the $500,000 discrepancy. 2. Returning to the Construction Contract, cl 37.2 referred in broadly familiar terms to the making of progress claims and their assessment by a superintendent, following which they were to be paid. However, cl 37.2(d) provided: prior to the application of the whole of the funding amount in accordance with clause 37.1A(a), be deemed to have paid to the Contractor the amount of the progress certificate as relates to the GMP and direct design or construction-related costs of variations (but not Contractor additional entitlements); 1. The appellants maintained that the Construction Contract and the Loan Agreement were to be read together. When Shinetec performed construction work and made a progress claim, the effect of cl 37.2(d) was to deem there to have been a payment by Gosford of the amount, as well as a draw down notice under the Loan Agreement pursuant to which Shinetec would be paid using its own funds. The practical effect of the deeming for which Shinetec contended is that, for the first $37,000,000 of work done by Shinetec for Gosford, it would be taken to have been paid by monies borrowed by Gosford from itself, and would emerge as if those progress claims had been paid in full but nonetheless Gosford owed Shinetec that amount under the Loan Agreement. 2. That construction is not without its difficulties, not least insofar as its effect appears to be to circumvent the regime established by the Building and Construction Industry Security of Payment Act 1999 (NSW), but they were not the subject of argument and may be passed over for present purposes. We proceed on the basis of the operation of the Construction Contract and Loan Agreement for which the appellants contend, noting that in any event, nothing turns on this. The standby letter of credit 1. The definition of funding amount in item 6A of the annexure of the Construction Contract not merely identifies the amount of $37,000,000 plus GST, but also includes an acknowledgement and an executory promise by each party. The drafting is less than ideal, but the meaning is clear. 2. Shinetec complied with its obligation to provide a standby letter of credit, and it is the call upon that letter of credit which gives rise to this dispute. Its parent Shanxi applied to the Bank of China, Shanxi Branch. Its application included, as part of what was described as a "solemn commitment", the following: We are fully aware of the risks under the Standby Letter of Credit and understand that this falls under the category of cross-border guarantee. Where there is a claim, an advance will be paid by you first and reflected in our company's credit information. We are will to bear all the risks that may result from this. 1. The standby letter of credit had a transaction reference number of "GC0377020000874". It was addressed to "The Gosford Pty Limited (ACN 630 253 557)" and then stated Gosford's address in Sydney. It stated that "Bank of China Ltd, Shanxi Branch", hereinafter called the "Guarantor", "have agreed to give the standby letter of credit on behalf of the Contractor". The Contractor was defined to be Shinetec. There followed: Therefore, we hereby affirm that we are responsible to you, on behalf of the Contractor, up to a total amount of AUD37,000,000.00 (say Australian dollars thirty seven million only), and we undertake to pay you unconditionally and independently upon our receipt of your first written demand in original paper form declaring the Contractor fails to perform its obligations under the contract and specifying in which respects the Contractor is in failure and amount claimed. 1. The standby letter of credit also provided: For the purpose of identification, any such demand in original should be presented to us through your bank confirming that the signatures thereon are authentic with their confirmation by authenticated SWIFT. 1. The reference in that passage to "your bank" was a reference to Gosford's advising bank, Macquarie Bank Limited. Macquarie Bank sent the Bank of China such a confirmation on 30 July 2021. 2. The standby letter of credit was said to be "only personal to you and is not assignable or transferable". It was expressed to be subject to "ISP 98", which is a reference to "International Standby Practices 98", being rules issued by the International Chamber of Commerce in 1998. This Court (coincidentally including two of the judges hearing the present appeal) considered the operation of those rules upon a standby letter of credit in Griffin Energy Group Pty Ltd (Subject to Deed of Company Arrangement) v ICICI Bank Ltd [2015] NSWCA 29; 317 ALR 395. It was common ground between the experts on Chinese law that the wording was sufficient to incorporate those provisions. 3. The standby letter of credit made no provision for its governing law. The primary judge considered that Chinese law was the proper law, reflecting the legal system with which it had the closest connection. No party challenged that finding. 4. The standby letter of credit was expressed to expire on, relevantly, 31 July 2021. The events leading up to the demand on the standby letter of credit 1. Following the modification of the development consent, various work including demolition occurred on the site and two progress claims were lodged by Shinetec and approved by the superintendent. They were in the amounts of $3,193,225.42 (including GST) and $2,035,668.23 (including GST), and were dated 4 December 2020 and 21 January 2021 respectively. 2. Work thereafter ceased and an exchange of correspondence including show cause notices ensued. No fewer than three sets of receivers were appointed to Gosford. The circumstances in which the first appointment occurred were not fully explained in the evidence, but the appellants said, seemingly uncontroversially, that they were appointed "by a party unrelated to this litigation". Shinetec appointed Messrs Albarran and Kijurina as receivers and managers of Gosford on around 6 April 2021 seemingly pursuant to an unregistered second mortgage. However, on 26 July 2021 the second and third respondents were appointed receivers, pursuant to a first ranking registered mortgage granted by Gosford in favour of its lender, Gemi 149 Pty Ltd. Correspondence between the receivers was to the effect that the latter, appointed by a first ranking secured creditor, displaced the former; a position which accords with what was said in comparable circumstances in In re Metropolitan Amalgamated Estates Ltd; Fairweather v Metropolitan Amalgamated Estates Ltd [1912] 2 Ch 497 at 502 ("It is clear, however, that notwithstanding the order appointing Whitehill, the first mortgagees were entitled to come in and displace him"). In any event, no challenge was made to the validity of their appointment. The receivers appointed by Gemi 149 caused the demand upon the standby letter of credit to be made. It was common ground that the demand was served on the Shanxi Branch of the Bank of China on 30 July 2021. 3. The demand was a lengthy document, as may be seen from the attachment to these reasons. It concluded as follows: DEMAND A. This letter of demand is being presented by and on behalf of Gosford to the counter at the BOC branch at No. 186 Pingyang Rd, Taiyuan, Shanxi Province, being the branch named in the Letter of Credit. B. Gosford's bank, Macquarie Bank, has duly confirmed via SWIFT that the signatures on the letter of demand are authentic. C. This letter constitutes a demand upon your bank to comply with the unconditional and independent undertaking to Gosford in the Letter of Credit to pay the sum of AUD37 million forthwith. D. This demand is being presented with the original of the Letter of Credit which shall remain in the possession of Gosford's representative. E. Your bank is authorised to make the payment by either delivering to Gosford's representative a bank cheque made out to Gosford for the sum of AUD 37 million or alternatively by EFT to: Account name: The Gosford Pty Ltd (Receiver and Manager Appointed) BSB: [XXXXXX] Account no: [XXXXXX] Swift Code: [XXXXX] In the case of the latter, it is a condition that your bank must provide written details of a completed transfer to Gosford's representative before the representative leaves the branch. 1. The demand was headed as being made by "The Gosford Pty Ltd (Receivers and Managers Appointed)". It was signed by each of the Receivers as "Joint Receiver & Manager" on behalf of "The Gosford Pty Ltd (Receivers & Managers Appointed)". It used, including in the passage reproduced above, the term "Gosford", defined to mean "The Gosford Pty Limited (ACN 630 253 557)". 2. By SWIFT message dated 30 July 2021, Macquarie Bank confirmed: In accordance with the terms of the standby letter of credit No. GC0377020000874, for the purpose of identification, as the bank for the named beneficiary, The Gosford Pty Limited (ACN 630 253 557) [address], on a bank-to-bank basis via SWIFT, we confirm that the signatures on the attached original demand made by the beneficiary (The Gosford Pty Limited (ACN 630 253 557)) under the standby letter of credit No. GC0377020000874 have been sighted by us and are authentic signatures of the officers of The Gosford Pty Limited (ACN 630 253 557). The steps taken thereafter in Australia 1. On Monday 2 August 2021, Shinetec approached the Duty Judge in the Equity Division of the Supreme Court of New South Wales ex parte, appearing by solicitor and counsel. As is usual in this country, orders were made on an interim basis, meaning that they expired of their own force on Friday 6 August unless renewed beforehand, and the onus lay on Shinetec to demonstrate a sufficient reason for their continuation. This was explained by McLelland J in Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730 and confirmed in Minister for Local Government v Blue Mountains City Council (2018) 97 NSWLR 1132; [2018] NSWCA 133 at [47]. As is usual in this country, orders were made requiring all five defendants (Gosford, its receivers, Macquarie Bank and Bank of China) to be served promptly with all of the material relied on by Shinetec. As is usual in this country, Shinetec gave the "usual undertaking as to damages", exposing it to an unlimited liability to anyone (including third parties) if it turned out that the injunctive relief should not have been given and loss was thereby sustained. On that basis, Shinetec obtained temporary orders preventing Gosford, the receivers, the Bank of China and Macquarie Bank from taking any further steps on the demand, or from issuing any further demand. The orders are quite elaborate, including eight substantive injunctions, but all deal with the transfer of money pursuant to the demand and any future demand. All that presently matters is that none required Gosford or its receivers to withdraw or countermand the demand. 2. On the same day, Shanxi approached the Taiyuan Intermediate People's Court, filing a civil complaint. The defendant was Gosford, and Bank of China Shanxi Branch was identified as the "third party". As translated, the "Complaint reason" was "Dispute over fraud in relation to letter of credit" and the "Claims" were: 1. The Plaintiff requests to affirm the act of Defendant that demanding Third Party to pay RMB 177 million (AUD 37 million) under a standby letter of credit No. GC0377020000874 has constituted fraud in relation to letter of credit; 2. The Plaintiff requests an order that the Third Party terminate the payment of RMB 177 million (AUD 37 million) under the standby letter of credit No. GCO377020000874; 3. The Defendant shall be responsible for the cost of this proceeding. 1. As translated, the "Facts and Grounds" for the proceeding referred to the Construction Contract and the standby letter of credit, and then stated as follows: After signing the contract, Shinetec had been actively performing its obligations under the contract and commenced on the site on 2 December 2020. As the Defendant did not have funds to pay relevant fees required by the Council of Gosford for the Development Application, a Construction Certificate was not issued and as a result Shinetec was unable to carry on the construction. On 8 February 2021, Shinetec issued to the Defendant a suspension notice of construction, to which the Defendant did not object. On 26 March 2021, Shinetec received a notice that due to the Defendant's indebtedness on other projects, the Defendant was unable to perform the contract financially and therefore, the construction contract was terminated. The act of the Defendant has fundamentally breached the contract, and the Defendant shall assume the legal liabilities. The Defendant, knowing that the payment conditions of the standby letter of credit were not satisfied, and that the standby letter of credit should be returned due to the termination of the construction contract as a result of its breach of contract, still requested the Third Party to make the payment as per the letter of credit. This is an abuse of right to request payment knowing that it did not have such a right, which has constituted fraud in relation to the letter of credit and significantly infringed the Plaintiff's legitimate rights and interests. In accordance with the Provisions of the Supreme People's Court on Some Issues Concerning the Trial of Cases of Dispute Over Letter of Credit, the Plaintiff has submitted the claims to the Court, and requested orders be made as pleaded. 1. It is not clear whether it was Gosford's sole director Mr Walker, or the receivers Messrs Hurst and Sampson, or all of them, who were alleged to have known that when they caused Macquarie Bank and their solicitors to present the demand, they had no entitlement to do so and were committing a fraud. During the hearing of the appeal, members of the Court asked, and Mr Gleeson SC who appeared for Gosford and the receivers asked, repeatedly, if proper particulars of fraud had ever been provided. The appellants' response was to point to the translation reproduced above. To be fair, there is also a similarly worded letter from Shanxi to the Bank of China Shanxi Branch, which relevantly states: The counterparty has no right to make the claim, and such claim is malicious. According to Clause 6A of the Contract, this letter of credit is a guarantee for advance and is not linked to contract performance; clause 5.2 of the Contract specified that the owner shall withdraw and return the letter of credit when the construction is suspended. The owner confirmed that the contract was suspended before the company was taken over. The creditor abused the right to demand payment under the letter of credit after taking over Gosford. … We request the Bank to consider our opinion, review again, and apply appropriate reasons to return the demand and protect the interests and security of overseas state-owned enterprises. 1. On 3 August 2021, the Taiyuan Intermediate People's Court issued a "Civil Ruling". A copy of the original ruling was in evidence, and two translations of it. The entirety of the material parts of the ruling, in the translation favoured by the appellants, was as follows: After review of the dispute, the Court considered that the Applicant Shanxi Construction Investment Group Co., Ltd's application to suspend payment to the letter of credit complied with the law. According to the provisions of Article 100 of Civil Procedure Law of the People's Republic of China and Article 12 of Provisions of the Supreme People's Court on Some Issues Concerning the Trial of Cases of Dispute Over Letter of Credit, it is ruled as follows: To suspend the payment of RMB 177 million (AUD 37 million) under the standby letter of credit No. GC0377020000874 issued by the third party Bank of China Limited Shanxi Branch with the respondent THE GOSFORD PTY LIMITED as the beneficiary. This ruling will be enforced immediately upon service. 1. There was also an "Enforcement Assistance Notice" issued to the Bank of China, Shanxi Branch. It, like the Civil Ruling, was sealed by the Taiyuan Intermediate People's Court. Once again according to the translation preferred by the appellants, it stated: To Bank of China Limited Shanxi Branch: Whereas: The Civil Ruling ((2021)JIN01 MlNCHU No.809) has already taken legal effect, that in relation to the dispute of Shanxi Construction Investment Group Co., Ltd, The Gosford Pty Limited and Bank of China Limited Shanxi Branch over fraud in relation to letter of credit, to suspend the payment of RMB 177 million (AUD 37 million) under a standby letter of credit No. GC0377020000874 issued by the third party Bank of China Limited Shanxi Branch with the respondent THE GOSFORD PTY LIMITED as the beneficiary. Please suspend the payment for 12 months from 4 August 2021 to 4 August 2022. Where the suspension is expired or the freezing is revoked, the payment may resume. … Enclosure: (2021) JIN01 MINCHU No.809 Civil Ruling 1. Both the Civil Ruling and the Enforcement Assistance Notice referred to the allegation of fraud by Shanxi against Gosford. The appellants' preferred translation of the Civil Ruling recorded that the application was made "on the reason of existing fraud in relation to letter of credit", and the Enforcement Assistance Notice referred to the dispute "over fraud in relation to letter of credit". If there was evidence accompanying Shanxi's application, it was not made available to this Court. The documents do not suggest that there was any evidence supplied, or any perceived need to give reasons for the ruling beyond that it complied with the provisions of two Chinese statutes. 2. The Civil Ruling was not expressed to be limited in time. The Enforcement Assistance Notice requested payment to be suspended for 12 months, until 4 August 2022. This Court was told that the suspension has subsequently been extended, and currently expires on 24 July 2024. This Court was also told that Gosford had not to date been served with process from the Chinese Court. 3. In Australia, an ex parte application is accompanied by an obligation of candour, whereby the moving party is required to point out any salient matter which might tell against the granting of relief. This Court said in Young v Cooke [2017] NSWCA 33 at [27], citing High Court authority, that: A party making an application to the Court ex parte is bound by a duty of candour and "the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all material facts which that party would presumably have brought forward in his defence to that application". (Footnotes omitted.) 1. It is unclear whether there is a similar obligation in China. It is also unclear whether there is an equivalent of the usual undertaking as to damages. 2. All competent Australian legal practitioners are aware of the obligations to which they are subject before alleging fraud. In Odtojan v Condon [2023] NSWCA 129 at [30], two of us restated, by reference to an earlier decision of this Court, the nature of those obligations: In the pleading of fraud, some requirements of the law are clear beyond argument. These requirements are not only rules of pleading and practice established by decisions of the courts. They are rules of ethical conduct binding on members of the legal profession. It is a serious matter to allege fraud against a party in pleadings to which attach the privileges incidental to court proceedings. Reports of such allegations may be recounted in the community and through the public media. They may do great harm to a party before a word of evidence has been offered and submitted to the searching scrutiny of cross-examination or to rebuttal. It is for this reason, amongst others, that legal practitioners must take care to have specific instructions and an appropriate evidentiary foundation, direct or inferred, for alleging and pleading fraud. We say inferred, because it will sometimes be impossible to prove fraud by direct evidence. The tribunal of fact may be invited to draw an irresistible inference of fraud from the facts proved. Of its nature, fraud is often perpetrated covertly. The perpetrators of fraud will often take pains to cover their tracks. Professional discipline may follow if allegations of fraud are made where the foregoing conditions are not satisfied. By such means, courts protect their process from the abuse which would follow from the too ready assertion of fraud against a party, in circumstances where it could not be proved to the high standard required of such allegations. 1. It is unclear whether the same strictures against alleging fraud as apply in Australia apply in China. Indeed, to be fair, it is unclear whether any lawyer was involved in Shanxi's application to the Taiyuan Intermediate People's Court. So far as appears from the original documents and their translations in the appeal books, it seems that Shanxi itself wrote directly to the Court under its own seal. In contrast, a company is not permitted without leave to file an originating process in the Supreme Court of New South Wales in its own name as the sole plaintiff unless it does so by a legal practitioner: UCPR, r 7.1(2). 2. To be quite clear about it, we have made the foregoing observations contrasting the procedures in New South Wales and China not with a view to saying that one jurisdiction is better or worse than another, but in order to provide some explanation for what occurred in each place, which may assist readers who are familiar with one jurisdiction and not another. Other events prior to trial 1. As noted above, the proceedings pending in the Taiyuan Intermediate People's Court remain undetermined. There is some evidence that attempts have been made, in early 2024, to serve Gosford. This Court was told that service had not as yet been effected. The orders suspending payment on the standby letter of credit have repeatedly been extended. 2. The proceedings in the Supreme Court of New South Wales returned to the Duty Judge later that week, and on 13 August 2021 the interlocutory orders were continued until further order by consent, once again upon Shinetec by its counsel giving the usual undertaking as to damages. On the same date the proceedings were transferred into the Commercial List. 3. It is not quite clear why it took slightly more than two years for the proceedings to be listed for trial. In part it was a consequence of an unsuccessful application for a stay by Bank of China, based on forum non conveniens principles. The Bank's motion was filed on 10 October 2021, heard on 1 February 2022 and dismissed for reasons occupying 107 paragraphs on 4 February 2022: Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd [2022] NSWSC 59. In part it will have been because the dispute extended to a number of issues of Chinese law, leading to Shinetec and Gosford retaining experts. In part it was because both Shinetec and Gosford advanced claims for damages which were withdrawn before the trial. We are not seeking to attribute blame for the delay between the resolution of the application for a stay in February 2022 and the hearing in October 2023. We wish merely to note that in circumstances where injunctive relief had been obtained preventing payment pursuant to a letter of credit, one would ordinarily have expected the proceedings to have been listed for hearing more swiftly than occurred. 4. One other matter which occurred prior to trial should be noted. In March 2023, the Bank of China approached the Shanxi Higher People's Court to seek a revocation of the Civil Ruling made by the Taiyuan Intermediate People's Court. The ruling of that Court was in evidence, as was a translation. The latter records that the Bank submitted that its standby letter of credit was "in essence an independent guarantee", that the terms of the Chinese statutes were not met, in that contrary to Article 14 of the PRC Independent Guarantee Provisions, "Shanxi Construction Investment failed to sufficiently prove the existence of a high probability of fraud described in Article 12 of the PRC Independent Guarantee Provisions". The entirety of the reasoning of the Court (as opposed to reproducing the background and Bank of China's submissions) was as follows: After examination, the Court believed that the application for suspension of payment of the subject standby letter of credit by Shanxi Construction Investment Group Co., Ltd. was in compliance with the provisions of PRC law, the application of law of the (2021) Jin 01 Min Chu No. 809 Civil Ruling made by the Taiyuan Municipal Intermediate People's Court was correct. The Australian court also rules to suspend payment under the subject standby letter of credit. The suspension of the payment under the subject standby letter of credit is conductive [sic] to protecting the legitimate rights and interests of the parties. According to the provisions of Article 157 of the Civil Procedure Law of the People's Republic of China and Article 13 of the Supreme People's Court on Several Issues concerning the Trial of Letter of Credit Dispute Cases, the Court rules as follows: The request for reconsideration made by Bank of China Shanxi Branch shall [be] rejected. 1. We note, lest the position be misunderstood, that the Supreme Court of New South Wales had not "ruled" that there be any suspension of payment pursuant to the standby letter of credit. Orders which had initially been made ex parte for a period of four days were thereafter extended by consent pending trial. The trial of Shinetec's summons 1. In light of grounds 1 and 4 of the appeal, it is necessary to summarise some aspects of the case presented by Shinetec at trial. 2. The trial commenced on Wednesday 25 October 2023 and the evidence was complete on Thursday 26 October. As is usual in the Commercial List, the parties had supplied written submissions in support of their cases in advance of the trial (they were dated 20 October). The parties provided written submissions in advance of oral addresses on Monday 30 October. The parties were also granted leave to supply supplementary submissions shortly after the trial, the last of which was supplied on 7 November. Shinetec's case at trial 1. Shinetec's case at trial was that the demand upon the standby letter of credit was invalid. It sought a declaration that the demand was "invalid and of no effect", and an order for the return of the letter of credit. In its opening written submissions, dated five days before the trial commenced, it abandoned its claim for damages. 2. Shinetec's further amended summons, filed 3 April 2023, which was the form of the originating process which went to trial, joined Gosford as the first defendant, the receivers as the second and third defendants, and Macquarie Bank as the fifth defendant. There was no fourth defendant. Although Bank of China had originally been joined, Shinetec did not proceed against Bank of China at trial. Bank of China was present at trial, but only as a cross-defendant on Gosford's cross-claim. 3. At the commencement of a submission made after the conclusion of the trial, Shinetec explained that its decision not to sue Bank of China was deliberate, and that it affected the relief that it sought: 2. It is important to note that when the CLS [Commercial List Statement] was filed on 8 September 2021, Bank of China was not a party to the proceedings. Bank of China has never been a party to the primary proceedings brought by Shinetec and was only subsequently sued in the Cross-Claim, a proceeding to which Shinetec is not a party. 3. Plainly, a declaration as to invalidity could not bind a non-party, namely the Bank of China. In any event, the absence of a contractual entitlement under the Construction Contract between Shinetec and The Gosford to make the Demand could not affect the validity of the Demand as against the Bank of China. Shinetec has been clear about that. If that was what was intended by the CLS, at the very least Bank of China would have been a party. 4. However, when the CLS was filed, separate proceedings were already on foot in China against The Gosford and the Bank of China in which the Bank of China had already been restrained from making any payment pursuant to the SBLC. 5. In those separate Chinese proceedings, Shinetec's parent was already seeking to impugn the Demand on the basis of fraud: see the Civil Complaint at Ex 1/CB 15/5265-5267. No allegation of fraud has ever been made here and it is common ground that such an allegation is required to seek to set aside a demand as against a bank. 6. The claims made in the Chinese proceedings against The Gosford and Bank of China and the injunctive relief already granted there explain why the same case was not being prosecuted by Shinetec here. It was unnecessary and, importantly, the bringing of such a parallel case here would have been inappropriate and open to claims of it being an abuse and subject to a stay: Henry v Henry (1996) 185 CLR 571 at 590–591. 1. Shinetec's claim that the demand was "invalid" had two bases: 1. first, an allegation that there were false, but not fraudulent, statements in the demand from Gosford to the Bank of China, and 2. secondly, an allegation that the sole purpose of the standby letter of credit, as between Shinetec and Gosford, was to secure Shinetec's obligation to advance $37,000,000 for the project, which obligation had been satisfied by Shinetec entering into the Loan Agreement for $37,000,000 (irrespective of performance under it). 1. The Commercial List Statement did not allege fraud. Shinetec's position was made perfectly clear at the outset of the trial: ZAHRA: …The Gosford disputes that the demand contained false statements. HIS HONOUR: You just said "falsely made", but you don't allege fraud. ZAHRA: No, we don't allege fraud, your Honour. HIS HONOUR: So falsely made; what do you mean, it's factually incorrect? ZAHRA: Correct, that's right, and we've explained, your Honour, in paragraphs 68 to 81 of our opening written submissions that there are at least 13 reasons why the demand was invalid, and I'll return to that shortly. 1. Gosford's response was that: (a) even if false statements were made in the demand, provided they were not fraudulent, they could not invalidate the demand as between Gosford and the Bank of China; (b) even if, which was denied, Shinetec had fully satisfied the sole obligation which the standby letter of credit was to secure as between Shinetec and Gosford, that could not have any impact on the validity of the demand between Gosford and Bank of China. 2. Shinetec unsuccessfully attempted to amend its Commercial List Statement at the commencement of the trial to expand its case to allege the existence and breach of an implied negative stipulation of the construction contract. This was the subject of ground 5 of the appeal, and it is convenient to defer for the moment an account of what was said in support of and in opposition to that application. 3. Shinetec confirmed on 2 November 2023, following the close of oral submissions, that it had not brought a case of breach of contract. Its written submissions, signed by senior and junior counsel, included: Shinetec did not bring a breach of contract case and it did not allege a breach of a negative stipulation in the Construction Contract. It was prevented from amending to plead and bring such a case. The Court will find no such case being advanced in any written or oral submissions made on behalf of Shinetec. 1. Shinetec's position in its closing submissions was that it would obtain relief if it could establish either (a) that the demand was invalid as between Shinetec and Gosford, or (b) that Gosford was "not entitled" under the Construction Contract to make the demand which it did on the Bank of China. Shinetec's belated claim for injunctions 1. Extraordinarily, Shinetec submitted at the close of trial that the interim injunctions made by Lindsay J should remain in force until a final determination of the rights and obligations of the parties under the Construction Contract which, save for the demand, were not the subject of the proceedings. This was done in paragraphs 23 and 25 of its written submissions after the conclusion of evidence as follows: 23. Shinetec seeks the following relief: (a) Declarations as set out in paragraphs 19, 20(a) and 20(b), above; (b) An order for the return of the original SBLC (prayer 2 of the final relief claimed in the Further Amended Summons); (c) Additionally, Shinetec submits that there should be no orders made disturbing or discharging the injunctions granted by Lindsay J on 2 August 2021 and extended (by consent) by Lindsay J on 13 August 2021 until further order – in particular orders 8, 9, 10, 11 and 14 made on 2 August 2021. … 25. In relation to the injunctions granted by Lindsay J, those orders, inter alia, restrain The Gosford from transferring or dealing with any sum of money transferred to it by the Bank of China (see order 14 made on 2 August 2021). The injunctions were extended, with the consent of the Defendants, until further order of the Court. The Defendants have not foreshadowed any application to discharge or vary those orders and there would be no proper basis for doing so, particularly noting that there has been no final determination of the substantive rights and obligations, claims and counterclaims between the parties under the Construction Contract and there will be no such determination in these proceedings (other than in relation to the question of any entitlement to make the Demand). 1. There is no way of describing this other than to say that it was misconceived. To be sure, we did not understand that any attempt was made by counsel now retained by the appellants to defend this aspect of the case advanced by their predecessors. The fact that such a submission could be made at all warrants our making the following points. 2. The purpose of interlocutory relief is to maintain an appropriate position pending the final resolution of the parties' rights at trial. There is never any occasion for a defendant to "foreshadow" an application to vary interlocutory relief at the conclusion of a final trial on all issues. If a plaintiff loses at trial, then it will ordinarily follow that it should never have been entitled to the interlocutory relief. It will also follow that the plaintiff may be exposed to a claim by the defendant or a third party on the usual undertaking as to damages. 3. Further, the course sought to be advanced by Shinetec was procedurally unfair. Its Commercial List Summons had, consistently with the standard form of that document, identified the relief it sought on an interlocutory basis and the relief it sought on a final basis. In the latter category was the declaration and order for the return of the standby letter of credit, but no other injunctive relief. (Also included in the final relief was a claim for damages, but that was abandoned in advance of trial.) The defendants were entitled to proceed on the basis articulated in Shinetec's Commercial List Summons. 4. The notion that because interlocutory relief is expressed to be "until further order" means that it will survive a final hearing on all issues is simply wrong. The position was clearly explained by Parker J in Shun Sheng Pty Ltd v Lei (No 2) [2023] NSWSC 1623 at [25] and [28] in terms with which we respectfully agree: If an injunction is obtained ex parte, it is made only on an interim basis. The onus remains on the plaintiff to justify the continuation of the injunction on the return date, when the defendant has been formally notified of the application and can appear to resist it. But once the defendant has had that opportunity, any continued injunction is usually granted on an interlocutory basis, that is, on the basis that it will apply until the court has given judgment following the trial. The "more usual" (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [16]) form of order is to grant the injunction "until the hearing of the action or further order". But sometimes only the words "until further order" are used. … After final orders are made, any interlocutory orders come to an end. If the plaintiff obtains final relief, an interlocutory injunction will be displaced by, or subsumed within, that final relief. If final relief is refused, an interlocutory injunction necessarily falls away. 1. As his Honour further observed, there are exceptions to the general rule set out above. But what was proposed on behalf of Shinetec at trial was squarely contrary to the general rule and ordinary practice of this Court. 2. Shinetec's submissions proceeded to explain that there might be other litigation as between it and Gosford on the Construction Contract. But that litigation was not part of the claims which went to a final hearing between those parties, and had not been commenced more than two years after Shinetec had commenced proceedings. 3. Senior counsel then appearing for Shinetec elaborated the position at the conclusion of oral addresses on 30 October 2023. ZAHRA: Can I then, your Honour, briefly address the injunctions, the injunctions being the orders that were made by Lindsay J. HIS HONOUR: Yes. ZAHRA: Your Honour, we say that, as I've indicated, those were matters which were not made until the determination of the proceedings, but by consent until further order. They remain operative, and we say that it is appropriate that they continue, and ought not be discharged. In relation to the question of payments, that's relevant for the financial reasons that I've indicated, but in relation to, and this was perhaps addressed in the exchange between your Honour and Mr Owens, the inability to further progress matters by providing information, and the like, we say if your Honour finds that there was no entitlement by these defendants to make the demand, having regard to the construction contract and the like, then it is entirely appropriate that that injunction also be preserved, which would prevent further steps being taken, as it were, to draw down the money, as between the contractual entitlement between the parties, and that's one of the orders that was made by Lindsay J. That's a very reason to the funds disappearing, as it were, if paid in. By way of reply, those are the matters that I wished to raise. HIS HONOUR: But you don't ask for that in the summons. ZAHRA: I don't, your Honour, because those orders are until further order. They have been made; they continue to operate, with good reason. HIS HONOUR: All orders made in proceedings at interlocutory stage are expressed that way. Are you pointing to the fact that the orders are not until the final hearing of this matter? ZAHRA: Yes. They're not until the determination of the proceedings which is often the case. These are until further order, and that makes sense, your Honour, because, as Mr McHugh referred to in their closing submissions on two occasions, if the money is paid down by the Bank of China that doesn't involve any substantive determination of the rights between the parties. That contest will come in the future if the money is advanced and that's why, of course, it ought to be preserved. HIS HONOUR: What, indefinitely? ZAHRA: Until there has been any final determination, particularly in circumstances where we know the secured creditor is owed virtually the entirety of the $37 million, and it will disappear. HIS HONOUR: Decided in what? In China or in some other proceedings yet to be started here? ZAHRA: Wherever the final rights between the parties are determined, remembering The Gosford is a company in receivership. The property has been sold. It's not conducting anymore development. It seeks this money only, presumably to pay— HIS HONOUR: Do I know the property has been sold? ZAHRA: Yes, and I've given your Honour the reference for that in the closing submissions. HIS HONOUR: Obviously you're telling me, but is there evidence the property has been sold? ZAHRA: Yes, your Honour. We've given your Honour the reference to the contract for sale in the closing submissions. I can give it to your Honour now. It's para 26(f) of our closing submissions. The property was sold in April 2021 and the reference is volume 16 p 5401 is the contract for sale; the front page of it, at least. MCHUGH: There's something I think I need to make clear, which is I've been proceeding on the footing that the dismissal of the proceeding would involve the end of the interlocutory orders that had been made for the purpose only of preserving the subject matter of the proceeding until the final disposition of it. My friend hasn't moved for final orders on that basis. My submission is, in accordance with the usual practice, those orders would go. HIS HONOUR: I'll leave it on this basis. If I am persuaded after pondering this to even look at continuing the orders, I'll give everyone a chance to be heard. 1. The primary judge was treating courteously a submission which was palpably bad in law. 2. Mr Assaf SC, who had not appeared at trial but who appeared for Shinetec and Shanxi on appeal, at one stage submitted that, if the implied negative stipulation for which he now sought to contend was made out, a final injunction should issue, relying on the claim that had been made by his predecessor for such relief: ASSAF … What we say is, once there's – if your Honours were to find an implied negative stipulation which has been breached, the relevant remedy is a permanent injunction restraining The Gosford from taking any further steps to give effect to what we say is an invalid call. That's how it's put. GLEESON: I have to object to that, your Honour. There was no claim for permanent injunction made below or in the current notice of appeal. LEEMING JA: No, and there's no way, speaking for myself, that this Court is going to grant such an injunction, it not having been sought at any stage. Am I wrong about the procedural history, which is complicated? 1. After an attempt to rely upon the interlocutory relief in the summons, counsel continued: I accept, your Honour, that we should've been more precise in the relief that we seek, but we seek that relief, and we say it is encompassed by the such further or other order, claim for relief which is found in the summons … 1. It suffices to say that it would have been procedurally unfair, even if Shinetec were otherwise entitled to relief, for a final injunction to issue following a trial during which until final addresses Shinetec had abandoned damages and sought merely declaratory relief and an order that the standby letter of credit be returned to it. Moreover, as will be explained below, the submission does not attend to the new rights and liabilities which arise, as between issuing bank and beneficiary, upon the service of a compliant demand under a standby letter of credit. As Mr Gleeson submitted, after addressing the way in which Shinetec had advanced its claim for injunctive relief: I'm not just making this as the pleading prejudice point, although I'm making that point, what this actually illustrates in terms of the substantive issue is Mr Zahra's conception of the implied negative stipulation is designed to entirely reverse the ordinary purpose of the letter of credit. Instead of Gosford being able to call on the credit, get the 37 million, pay contractors or alternative contractors, and then have the dispute later. This is a claim that the contract should be understood to operate in the reverse manner that Gosford can never claim under the letter of credit, unless and until it's established an entitlement to do so under the building contract, which destroys the whole purpose of the standby. You could politely call it a cheeky application, saying an interlocutory injunction should just be left on the books and don't strike it out, but its procedural consequences are mischievous and its substantive thinking underneath it involves a concept of the implied negative stipulation, which had never been litigated and a concept which, on its face, would turn the standby on its head. 1. We shall return to this in the course of addressing ground 4. The reasons of the primary judge 1. It is not necessary to summarise the reasons of the primary judge in great detail, principally because Shinetec (now joined by Shanxi) in large measure does not seek to reagitate on appeal the submissions it made without success at trial. It suffices to note that the primary judge dealt with the substance of the two grounds relied upon by Shinetec as follows. 2. First, even if the demand contained false statements, as they were not alleged to be fraudulent, his Honour concluded that they could not affect the validity of the demand. The primary judge recorded the various matters which Shinetec contended made the demand false at [141], saying that it falsely asserted that the conditions precedent had been satisfied, Shinetec had failed to perform its obligations, Shinetec had ceased construction work at the site in or about October 2020 and had unlawfully suspended all activity on the site and abandoned the work, and had committed various breaches, including fundamental breaches, of the Construction Contract, and that Gosford had suffered loss and damage of at least $67,000,000 as a result of Shinetec's alleged breaches. 3. The primary judge recorded at [142] that, by alleging that those matters were "false", Shinetec was not alleging fraud: Shinetec contends these statements are false in the sense of being "factually incorrect". As I have said, Shinetec does not contend that the statements were made knowingly falsely. That is, it is not alleged the statements were made fraudulently. 1. Further, the primary judge recorded with some precision what Shinetec meant by its claim that the demand was invalid. It is important to bear in mind that Shinetec was not proceeding against Bank of China. The primary judge said at [143]-[146]: In its Commercial List Summons, Shinetec seeks a declaration that the Demand "is invalid and of no effect". That may have suggested that Shinetec's contention was that the Demand was invalid for all purposes, and not only as between Shinetec and Gosford. Indeed, at one point, Mr Zahra submitted that "our case is that the Demand was invalid full stop". However, Mr Zahra and Mr Galvin made clear that Shinetec's "case did not seek to impugn the validity of the Demand as against the Bank of China". Thus, in closing written submissions, Mr Zahra and Mr Galvin said: "It should be noted at the outset that Shinetec does not cavil with the propositions that (1) a bank in the position of the Bank of China, which is presented with an apparently compliant demand on a standby letter of credit, is required to pay; and (2) on the face of it, subject to the identity point involving the Receivers & Managers, the Demand was (as between [Gosford] and Bank of China) sufficient to engage the [Standby Letter of Credit]. That was made clear in opening and Shinetec does not resile from that position." This concession was correctly made. As between an issuer and a beneficiary, the existence of "factually incorrect" statements in a demand under a Letter of Credit are, absent fraud, immaterial. 1. The primary judge thereafter gave reasons which were not challenged on appeal and are, with respect, impeccable. A false but not fraudulent statement made by Gosford in its demand does not disentitle it from making the demand or from the Bank of China from paying in accordance with the standby letter of credit. As the primary judge noted at [147], that is confirmed by r 1.06 of ISP 98, which provides that "an issuer's obligations [under a standby letter of credit] depends on the presentation of documents and an examination of required documents on their face". The primary judge concluded on this aspect of Shinetec's case at [151]-[152]: I have not accepted Shinetec's "pleaded" case as articulated in its Commercial List Statement, that for the reasons there contended Gosford and the Receivers "had no entitlement under the Construction Contract to make the Demand". I am unable to see how any false, but not fraudulent, statements made in the Demand can take Shinetec's case any further. 1. On the second basis on which Shinetec advanced its claim at trial, the primary judge rejected Shinetec's contention that by entering into the Loan Agreement, and without more, it had "provided" the $37,000,000 finance. His Honour did so at [126]-[137], and no challenge was made to any aspect of that reasoning. 2. The primary judge attended to Gosford's cross-claim at [154]ff. Most of the issues there addressed arise in connection with grounds 6 and 7 of the appeal, and a more detailed summary is best deferred until we reach those grounds. By way of summary, his Honour summarised the standby letter of credit and the demand and the relevant provisions in ISP 98, before proceeding as follows: 1. at [165]-[175], his Honour concluded that the proper law of the standby letter of credit was the law of China; 2. at [187]-[201] his Honour addressed the debate as to the principles to be applied when construing ISP 98, and at [202]-[213] noted the debate concerning how if at all regard may be had to the Official Commentary, concluding that it was not necessary for him to express any final view on that issue; 3. at [214]-[239], his Honour rejected the submission that the receivers were transferors to which r 6.11 of ISP 98 applied – this reasoning is challenged in ground 6; 4. at [240]-[257] his Honour considered the effect of the order of the Taiyuan Intermediate People's Court, concluding at [257] that "the mere entry of judgment in favour of Gosford against the Bank would not, itself, cause the Bank to contravene the Civil Ruling", after noting at [256] that Bank of China did not dispute that entry of judgment did not impose an obligation upon it do something, and 5. finally, at [259]-[260] his Honour expressed an inclination to enter judgment against Bank of China but to stay that judgment pending a further approach to the Taiyuan Intermediate People's Court. 1. Following the receipt of written and oral submissions after publication of that judgment, the primary judge published a further judgment on 15 December 2023, which made orders according to the intention expressed above: Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd (No 3) [2023] NSWSC 1596. Relevantly, his Honour stated at [31]: I respectfully invite the Taiyuan Intermediate People's Court of Shanxi Province and, if appropriate, the Shanxi Higher People's Court, to consider this Court's reasoning for concluding that Gosford is entitled to judgment against the Bank arising from the Letter of Credit, and to consider whether the Civil Ruling should be discharged, now that the parties' competing contentions concerning the Letter of Credit have been dealt with and determined by this Court. 1. That occurred. The response appears to be that the Civil Ruling was extended, and Shanxi's case has been set down for hearing in September 2024. As will be seen, subsequently Gosford took steps to respond to Bank of China Shanxi Branch's request for information concerning the demand on the standby letter of credit. The appeal to this Court 1. Appeals lie from judgments and orders, not reasons. Orders were made on 15 December 2023 following delivery of the second reasons for judgment. Shinetec lodged a notice of intention to appeal, extending the time within which it could appeal for three months. On 14 March 2024 it filed a notice of appeal. That document went through various iterations, but ultimately grounds 1, 4, 5, 6 and 7 of a further amended notice of appeal were pressed. In further answer to ground 6, Gosford and the receivers sought, by notice of contention, to rely upon an attempt to present documents in around April 2024, in belated answer to Bank of China's request for information concerning the identity and status of Gosford. 2. Grounds 6 and 7 reiterate points made by the Bank of China at first instance in response to Gosford's cross-claim, and which were not made by Shinetec, which withdrew its claim against Bank of China. It was common ground that the appellants needed leave to advance grounds 6 and 7. 3. Well in advance of the hearing of this appeal, in written submissions dated 24 May 2024, Gosford and the receivers made their position abundantly clear: [Shanxi] had submitted to the jurisdiction and has been joined as a party to these proceedings. The first to third respondents consent to Shinetec and [Shanxi] being granted leave to advance Appeal Grounds 6 and 7 (i.e. prayers 2 to 5 on the motion), only on the condition that [Shanxi] discontinue, and undertake to this Court not to reinstitute, its parallel proceedings in the Taiyuan Court. This is not a situation in which a party has invoked the exercise of the Court's jurisdiction as of right; it is instead seeking the exercise of a discretion in its favour. There are overwhelming considerations against the exercise of that discretion. [Shanxi] should not be given leave in order to maintain parallel proceedings in two jurisdictions: an appeal from a final judgment after a trial in New South Wales and proceedings at first instance in China in which no trial has yet been held. This gives rise to the very real risk of inconsistent judgments, particularly where [Shanxi's] whole purpose in pursuing the Chinese proceedings must be to obtain a judgment which will conflict with the judgment already given below and any judgment contrary to its interests in this Court. That would bring the administration of justice into disrepute. It also has the undesirable consequence of wasting the parties' and judicial resources. In those circumstances, unless [Shanxi] discontinues its proceedings in the Taiyuan Court, and undertakes to this Court not to reinstitute those proceedings, leave to advance Appeal Grounds 6 and 7 should be refused. 1. Shinetec and Shanxi resisted those submissions, saying in written submissions dated 31 May 2024 there could be no suggestion that the maintenance of proceedings could be vexatious or oppressive when Shanxi does not advance any claim for relief in Australia, but rather "[Shanxi] is merely seeking to seeking to stand in the shoes of the Bank of China by seeking leave to continue to resist the active respondents' cross-claim in circumstances where the Bank of China has chosen not to appeal". 2. We shall return to those submissions. Ground 5 – error in refusing leave to amend? 1. The logical starting point is ground 5 of the appeal, which challenged the primary judge's refusal, at the outset of the trial, to permit Shinetec to amend its Commercial List Statement so as to advance a case based upon an implied term of the Construction Contract. 2. Importantly, in its written submissions dated 20 October, five days before the trial commenced, Shinetec had confirmed that it sought a declaration that the demand was invalid and the return of the standby letter of credit, and costs, adding that "The claim for damages is not pressed". 3. The proposed amended document (MFI-1) seems to have been supplied in the late afternoon of 24 October, the day before the trial was to commence. It alleged, for the first time, that "[i]t was an implied term of the Construction Contract that The Gosford was only entitled to make a demand pursuant to the standby letter of credit when there was a contractual entitlement to do so under the Construction Contract". It was then alleged that there was a new precondition to the making of a valid demand on the standby letter of credit. As sought to be amended, paragraph 23 provided: The Gosford was only able to make a valid demand on the Letter of Credit in circumstances where: (a) Shinetec had failed to secure finance as required by Item 6A of Part A of the Construction Contract and as reflected in the Loan Agreement; (b) the demand was made on or prior to 31 July 2021; (c) the demand was in writing to the counter of the Bank of China, Shanxi Branch; and (d) There was a contractual entitlement to do so under the Construction Contract. 1. The amendment was raised at the outset of the trial. Senior counsel explained why the amendment was sought: [I]n the event that your Honour finds firstly that the demand was invalid, and makes the declaration that's sought by my client, but then goes on to find – and this is the part that we suggest is unlikely – that the Bank of China is nevertheless liable to The Gosford; that would create a situation where the Bank of China would presumably pay out to The Gosford. The Bank of China would then claim on the plaintiff's parent, Shinetec Corporation, a Shanxi corporation in China … then the parent will claim against my client, and my client will be left out of pocket for $37 million, and so the reason for the amendment is in that unlikely, we say, contingency. We don't wish that to occur and so we then rely – we don't want it to be said that there is no cause of action – so we then rely on the implied negative term. 1. His Honour responded: That explains why you'd like it, but to argue for an implied term for the first time the day before the hearing is a bit late, isn't it? Unless I'm told it can be met. 1. Counsel for Shinetec submitted that the amendment "doesn't give rise to any new evidence, or any additional submission beyond really a legal submission". 2. There were two aspects to the opposition to the amendment from senior counsel who then appeared for the Gosford and the receivers, who stated that the proposed amended Commercial List Statement was served at around 5.30pm the previous day. The first turned on the explanation for the amendment which had been provided by Shinetec: MCHUGH: Your Honour, there is prejudice, and it comes from the way in which my friend has only just now explained, of how he wants to use this. His proposed case relies on the idea that his client might have a liability to its parent, which would complete the circle he described, and then he wants to recover that as damages against my client. We haven't investigated any of those matters about that relationship. My friend's submissions that were filed in Friday, with respect, correctly, expressly abandoned any claim for damages. We haven't looked into that at all, and there's no pleading. If your Honour looks at the proposed amendment itself it doesn't really have any content. The implied term pleaded at para 18 is circular. There was an implied term that The Gosford was only entitled to make the demand pursuant to a stand-by letter of credit, where there was a contractual entitlement to do so under the contract. 1. Secondly, in answer to his Honour's question whether the term was said to be implied by law or fact, counsel responded: MCHUGH: Or anything else, but it doesn't tell you anything about when in fact there would be such an entitlement, and then it doesn't go anywhere in terms of the actual fundamental issue of validity. If your Honour comes through to para 27, 27 begins with the demand, "Was and remains invalid". That must mean as against the bank. Then it goes on to say, "and there was no entitlement for a demand under the construction contract", which is supposedly foreshadowing some claim for breach of contract, which one then finds at 27(a), that The Gosford was in breach; but that allegation of breach doesn't sound in anything. It doesn't go anywhere on the current state of the evidence or as we've understood the case to be. What my friend is really saying is he wants to open up a whole different case that he's never made before about damages that haven't even been incurred, even. 1. The totality of the response from Shinetec was as follows: ZAHRA: Your Honour, responding really to the first two matters that my learned friend Mr McHugh raised. Firstly, in terms of the evidence of the plaintiff being liable through the claim that's made by the plaintiff, there are two documents already in evidence that have been in evidence for a long time. I'll take your Honour to them in opening, propose to. They're part of the application documents for the stand-by letter of credit, which were presented to the Bank of China. It includes a power of attorney document within that, which provides that my client would bear ultimate liability. There's no further evidence that I propose to rely upon. That's material that's been in play for many months. In terms of damages, it's correct that as we said in our written submissions we don't seek any damages at this stage, and we don't have any evidence of damage, but in the event of the contingency that I've identified, your Honour, we say that that would then put for the first time the plaintiff in a position of having some loss and damage, by reason of the indemnity provisions. 1. It will be seen that counsel for Shinetec, far from disavowing an absence of reliance upon a claim for damages, confirmed that in the contingency he had identified, there was being advanced a claim for loss and damage, contrary to what had been said expressly in the written submissions supplied prior to the trial. 2. Further, counsel for Shinetec identified "two documents already in evidence" which were relied upon in support of the alleged implied term. He added "there's no further evidence that I propose to rely upon". At no stage did he disavow that the submission was going to draw upon documents other than the Construction Contract itself, nor did he refute the submission that in order to respond to it, Gosford would have to prepare evidence. 3. The primary judge ruled immediately saying: I decline to grant the plaintiff leave to amend. It's a commercial list statement. I mark the proposed amended commercial list statement as MFI 1, and I'll give reasons for that conclusion in a judgment in due course. 1. His Honour's statement that "It's a Commercial List Statement" was a reference to the expeditious approach taken to all issues of case management in litigation in that list. 2. It may also be noted that the amendment was not accompanied by any evidence, including evidence explaining why notice of it had only been supplied on the afternoon of the day before the trial commenced, or why Shinetec now sought to depart from its abandonment of any claim for damages. 3. In his reasons for judgment, delivered with characteristic promptness a fortnight after the conclusion of written submissions, the primary judge referred to the amendment application, counsel's statement that he would be prejudiced if the amendment was allowed and that he was not in a position to meet it, and added that he "refused leave on that basis": at [105]. 4. There is nothing in this ground of appeal. The appellant's submission was that the primary judge erred in failing to have regard to the mandatory requirements of s 58 of the Civil Procedure Act 2005 (NSW). The only points identified in oral submissions in support of this ground were that the trial had been set down for seven days, that there was no particularisation of the claimed prejudice, and that the implied negative stipulation involved a mere question of law. 5. None of those points was made by senior counsel's predecessor before the primary judge. The decision was discretionary, reviewable on the grounds identified in House v The King (1936) 55 CLR 499; [1936] HCA 40. It is difficult in the extreme to find reviewable error in the refusal to allow a late amendment unaccompanied by any explanation for the delay on the first day of the trial based on submissions which were not made to the primary judge. 6. But in any event, we would not accept the submissions. The most important matter is that counsel then appearing for Shinetec said both in support of the amendment and in response to Gosford's opposition that a claim for damages was being put forward, albeit contingently. It was not necessary for anything more to have been said by counsel for Gosford concerning prejudice or inability to meet the claim. What was sought to be advanced was an elaborate alternative position, to which Gosford was entitled to more notice than it was given. 7. It was plain from what was said immediately thereafter that Gosford had served witness statements, including from its sole director Mr Walker, but had indicated that it was unlikely that they would be read as evidence. Senior counsel then appearing for Gosford said that that would depend upon Shinetec's opening. It is plain that the claim for damages might give rise to a need to adduce evidence. Aside from anything else, it is perfectly clear that there was at least an argument that if the conditions precedent had not been satisfied, they had been waived (or, alternatively, the parties were estopped from insisting that they had not been satisfied), for it is perfectly clear that Shinetec caused demolition and other preparatory work to be undertaken on the site. As much is obvious from photographs of the cleared site in evidence, and the two progress claims for millions of dollars of such work served by Shinetec. It is also obvious that some of that work preceded the execution of the Loan Agreement (which was dated 26 November 2021, only a fortnight before the first progress claim was served). Thus, Shinetec's submission at trial that the Construction Contract was suspended sits ill with what actually happened in the performance of work pursuant to the Contract. Mr Walker had served witness statements and had been required for cross-examination and was the obvious person to give evidence about the circumstances in which that construction occurred, as one aspect of a response to a claim for damages. 8. There is with respect some small force in the proposition that the reasons given by the primary judge were brief, especially bearing in mind that they would have been read representatives of a Chinese corporation, not likely to be familiar with practices in the Supreme Court of New South Wales. However, for the reasons given above, which would be familiar to any practitioner in the Commercial list, the decision was self-evidently correct. This ground is not made out. 9. In any event, nothing turns upon this ground because, for the reasons which follow, the point is bad in law. Grounds 1 and 4 – was the demand invalid because of breach of some provision of the Construction Contract? 1. These grounds may conveniently be addressed together. They have the same form: both maintain that by reason of a promise made by Gosford to Shinetec in the Construction Contract, Gosford's demand is "invalid" (or void or of no effect). In the case of ground 1, the point is said to be that the non-satisfaction of the conditions precedent has the result that the parties' rights and obligations were suspended. In the case of ground 4, the point is said to be that the demand was issued contrary to an implied negative stipulation. But in both cases, the express or implied provisions of the Construction Contract are said by the appellants to render the demand on the standby letter of credit invalid (or void or of no effect). 2. Ground 1 maintains that because the conditions precedent of the Construction Contract were not satisfied, the parties' rights and obligations under it were suspended, such that neither Gosford nor its receivers had power to make the demand upon the standby letter of credit. The consequence is said to be that the demand was "invalid and/or void and of no effect, for all purposes". This ground says that the primary judge erred in finding that the Commercial List Statement did not assert any link between the conditions precedent of the Construction Contract and Shinetec's contention that the demand was invalid, and erred in failing to determine whether the conditions precedent had been satisfied. 3. Gosford says that this ground was not advanced at trial, that it could have been met by evidence, and that in any event is it misconceived. 4. Ground 4 seeks leave to advance the ground which was the subject of the amendment rejected at the outset of the trial, namely, that there was an implied negative stipulation to which Gosford was subject, such that a valid demand could not be made unless Shinetec had failed to perform its obligation to lend $37,000,000. The appellants say that in making the demand, Gosford was in breach of the implied negative stipulation, and that the demand was consequently "invalid and/or void and of no effect". 5. Gosford says that this ground is not available unless ground 5 succeeds, and in any event it is misconceived. Discretionary reasons relating to grounds 1 and 4 1. We have concluded that ground 5 should fail, and we agree that it would not be appropriate to grant leave in respect of ground 4, so as to permit the appellants to advance a ground which was correctly rejected at trial. It is to be borne in mind that Shanxi and Shinetec's application was far from an ordinary case of an appellant wishing to raise a new point on appeal. Shinetec's case at trial was diametrically opposed to the case now sought to be presented in this Court. This was not merely a case where the implied negative stipulation was outside the issues framed in the pleadings. As the primary judge recorded at [106], significantly, after the conclusion of the trial: In a note delivered following closing submissions at my invitation, Mr Zahra and Mr Galvin said: "Shinetec did not bring a breach of contract case and did not allege a breach of the negative stipulation in the Construction Contract. It was prevented from amending to plead and bring such a case. The Court will find no such case being advanced in any written or oral submission made on behalf of Shinetec." 1. Of course, subsequent to the trial Shinetec has appointed new solicitors and new counsel to conduct this appeal. But where a litigant consciously chooses not to advance a case at trial, it is no small thing to permit the same point to be advanced on appeal. 2. We also note that ground 1, at least as drafted, maintained that the demand was "invalid and/or void and of no effect, for all purposes". That seems to amount to an application to determine this appeal in a way that binds the Bank of China, which is antithetical to the limited way in which Shinetec's challenge was cast at trial, explicitly not so as to bind the Bank of China (against which Shinetec did not proceed). The divergence between how the argument was advanced at trial and how it was sought to be advanced on appeal was emphasised by Mr Gleeson: Whatever one makes of Mr Zahra's legal conceptions, he did seem to think he was not invalidating the demand as between us and [Bank of China], even if he proved his points. He did seem to think he could get an invalidating order as between Gosford and Shinetec, even though the demand was not issued between those parties. He never identified how that could happen in law. 1. Still further in relation to ground 1, the appellants contend that the primary judge was bound to resolve the question whether the conditions precedent were or were not satisfied. Their submissions characterise this as "error in the judicial reasoning process – the learned primary judge failed to determine all relevant factual and legal issues, thereby failing to make all appropriate factual findings material to the disposition of the case". This puts the position too high. 2. Shinetec cites this Court's decision in Wolfenden v International Theme Park Pty Ltd (trading as Wonderland) [2008] NSWCA 78 at [6], but the passage cited discloses the basic fact that a court need not decide every point presented by the parties for determination. Giles JA said: It is appropriate to remind that it is in the interests of the parties, in avoiding expense and delay in establishing their rights and obligations, and in the interests of the administration of justice, in efficient use of the public resource of court time and judicial decision-making, that trial judges should generally make all appropriate findings material to liability and proceed to assessment of damages, even if finding against the plaintiff on a limited basis. That is not, of course, something which should invariably be done. It must depend on the circumstances, but having well in mind the description of a new trial as "an evil and a deplorable result, to be avoided wherever possible": per Kirby P in Palmer v Clarke (1989) 19 NSWLR 158 at 164 and cases cited. (Emphasis added.) 1. It is true that, as the appellants point out, there is at least one occasion on which a trial court has expressed the obligation to determine all relevant factual and legal issues as unqualified: Collier v Country Women's Association of NSW [2017] NSWSC 1573 at [308]. But that is to go further than was stated in Wolfenden. More recently than either of those decisions, in PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 at [15] this Court confirmed that a litigant is not entitled to insist that a trial court determine non-dispositive issues and give reasons for doing so. 2. Generally a court at first instance should determine non-dispositive issues, and generally if it chooses not to do so it should explain why it is taking that course. There are litigants who raise a panoply of points, all of them hopeless, where no useful purpose is served by disposing of all of them (often but not invariably such litigants are unrepresented). It will be a question of judgment in every case, bearing in mind the desirability of minimising the risk of the need for a new trial if an appeal succeeds. We also note that an appellate court is likewise under no obligation to address all issues raised by the parties: see Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 at [36]-[41]. 3. As will be seen, the primary judge rightly regarded the legal submission advanced by Shinetec, one element of which was non-satisfaction of the conditions precedent, as misconceived, and on that basis resolved the case expeditiously. We see no error in his having taken that course. Substantive reasons for dismissing grounds 1 and 4 1. But the most fundamental reason why these grounds must fail is that they misconceive how the standby letter of credit operates. 2. First, contrary to the premise of ground 1, the Construction Contract is not the source of the power to issue a demand under the standby letter of credit. If as Shanxi and Shinetec contend, the conditions precedent were not satisfied, and the parties' rights and obligations under the Construction Contract were suspended, that did not mean that Gosford could not make a demand on the standby letter of credit. Making a demand involved presenting particular documents upon the Bank of China Shanxi Branch. Gosford's entitlement to do so did not depend on the Construction Contract. It was independent of the Construction Contract. 3. Shanxi and Shinetec sought to escape that proposition by relying on a variety of decisions in other areas of the law. Thus they submitted that their contention was "consistent with authorities to the effect that where essential conditions precedent to the exercise of a contractual right to renew or exercise an option have not been fulfilled, the purported exercise of a contractual right is 'ineffectual'", citing BS Stillwell & Co Pty Ltd v Budget Rent-A-Car System Pty Ltd [1990] VR 589 at 599. They submitted that "an analogy may be drawn to cases where a company passes a resolution where a condition precedent for that resolution (such as quorum) has not been satisfied. In such circumstances, the resolution will be void and of no effect for all purposes", citing (among others) Eastone Mining Pty Ltd v Eastone Holding Pty Ltd [2019] NSWSC 1850; 142 ACSR 38 at [43]. And they submitted that "[a] further analogy may be drawn to conditions precedent in insurance contracts: where a condition precedent has not been satisfied, any claim for indemnity pursuant to an insured's rights under the contract is ineffective for all purposes". But none of this is to the point. The standby letter of credit gave rights to Gosford as against the Bank of China, independently of the Construction Contract. 4. Secondly, Shanxi and Shinetec submitted that a demand on the standby letter of credit by Gosford which was in breach of the negative implied stipulation was itself "void and/or invalid and/or of no effect". That is not the law. The question for the Bank was whether the demand was made prior to 31 July 2021 and presented to the Bank of China Shanxi Branch by formal document on behalf of Gosford. There were certain circumstances which permitted the Bank to make enquiries (these are addressed below). But it is no element of the validity of the demand that Gosford be not in breach of any of the terms of the Construction Contract. 5. The standby letter of credit explicitly incorporated ISP 98. Clauses 1.06 and 1.07 of the ISP 98 warrant reproduction, in light of Shanxi's and Shinetec's submissions. They describe the nature of a standby letter of credit: 1.06 Nature of Standbys (a) A standby is an irrevocable, independent, documentary, and binding undertaking when issued and need not so state. (b) Because a standby is irrevocable, an issuer's obligations under a standby cannot be amended or cancelled by the issuer except as provided in the standby or as consented to by the person against whom the amendment or cancellation is asserted. (c) Because a standby is independent, the enforceability of an issuer's obligations under a standby does not depend on: (i) the issuer's right or ability to obtain reimbursement from the applicant; (ii) the beneficiary's right to obtain payment from the applicant; (iii) a reference in the standby to any reimbursement agreement or underlying transaction; or (iv) the issuer's knowledge of performance or breach of any reimbursement agreement or underlying transaction. (d) Because a standby is documentary, an issuer's obligations depend on the presentation of documents and an examination of required documents on their face. … 1.07 Independence of the Issuer-Beneficiary Relationship An issuer's obligations toward the beneficiary are not affected by the issuer's rights and obligations toward the applicant under any applicable agreement, practice, or law. 1. Repeatedly throughout his address in chief and in reply, Mr Assaf insisted that he did not challenge the "independence principle". But the point of that principle is that save in the case of fraud or unconscionability, an issuer must honour its standby letter of credit after being presented with documents which on their face are valid. These grounds fly in the face of the nature of a standby letter of credit as an independent documentary undertaking. 2. In United City Merchants (Investments) Ltd v Royal Bank of Canada [1983] 1 AC 168 at 183, Lord Diplock said: If, on their face, the documents presented to the confirming bank by the seller conform with the requirements of the credit … that bank is under a contractual obligation to the seller to honour the credit, notwithstanding that the bank has knowledge that the seller at the time of presentation of the conforming documents is alleged by the buyer to have, and in fact has already, committed a breach of his contract with the buyer for the sale of the good to which the documents appear on their face to relate, that would have entitled the buyer to treat the contract of sale as rescinded and to reject the goods and refuse to pay the seller the purchase price. 1. Thus one leading text which endorses that passage, states that the "doctrine of autonomy is a key principle in letter of credit transactions", and notes that the "bank's obligation to pay the beneficiary under the credit is independent of the underlying contract between the beneficiary and the applicant": P Elligner and D Neo, The Law and Practice of Documentary Letters of Credit (Hart Publishing, 2010) at 138. 2. True it is, as was submitted during the hearing of the appeal in an attempt to explain why the appellants' submissions were not inconsistent with the independence principle, that there are circumstances when a beneficiary may, expressly or by implication, bind itself not to make a demand on a letter of credit or other security, and in such cases injunctive relief will be available, including on a quia timet basis, against that party. The Court was taken at length to Wood Hall Ltd v The Pipeline Authority (1979) 141 CLR 443; [1979] HCA 21, Dedert Corporation v United Dalby Bio-Refinery Pty Ltd (2017) 59 VR 607; [2017] VSCA 368, Kawasaki Heavy Industries Ltd v Laing O'Rourke Australia Construction Pty Ltd (2017) 96 NSWLR 329; [2017] NSWCA 291 and Universal Publishers Pty Ltd v Australian Executor Trustees Ltd [2013] NSWSC 2021 at [13]-[14]. Relevantly for present purposes, all are to the same effect. The position was explained in Clough Engineering Ltd v Oil & Natural Gas Corporation Ltd [2008] FCAFC 136; 249 ALR 458 at [77]: Nevertheless, the authorities have recognised three principal exceptions to the rule that a court will not enjoin the issuer of a performance guarantee, or bond, from performing its unconditional obligation to make payment. The exceptions were succinctly stated, with references to relevant authorities, by Austin J in Reed Construction Services Pty Ltd v Kheng Seng (Aust) Pty Ltd (1999) 15 BCL 158 at 164-165: First – the Court will enjoin the party in whose favour the performance guarantee has been given from acting fraudulently: see eg Wood Hall Ltd 141 CLR per Gibbs J (at 451). … Second – the party in whose favour the performance bank guarantee has been given may be enjoined from acting unconscionably in contravention of s 51AA of the TPA: Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380. … Third – the most important exception for present purposes, is that, whilst the Court will not restrain the issuer of a performance guarantee from acting on an unqualified promise to pay: " … if the party in whose favour the bond has been given has made a contract promising not to call upon the bond, breach of that contractual promise may be enjoined on normal principles relating to the enforcement by injunction of negative stipulations in contracts. Reed Construction Services 15 BCL at 164 (Austin J)" It may be preferable not to describe this as an exception but rather as an over-riding rule because it emphasises that the "primary focus" will always be the proper construction of the contract: Bateman Project Engineering Pty Ltd v Resolute Ltd (2000) 23 WAR 493 per Owen J at [30]. Stephen J recognised this in Wood Hall Ltd 141 CLR at 459 by observing that the provisions of the contract may qualify the right to call on the undertaking contained in a performance guarantee. 1. The first and second exceptions, fraud and unconscionability, were not asserted. (For completeness, at one stage in the appeal, Shinetec sought in this Court, for the first time, to advance by proposed ground 5A a submission that the making of the demand was unconscionable, but this was withdrawn a few days prior to the appeal being heard.) The third "exception" is noted in Dedert at [102] and in Universal Publishers at [14]. 2. We respectfully agree with the point made by French, Jacobson and Graham JJ in Clough Engineering that the third "exception" is not so much an exception as an over-riding rule. Normally a party can bind itself not to exercise a private right. That includes the right to make a demand on a standby letter of credit. The consequence of a beneficiary making a demand on a standby letter of credit contrary to its promise not to do so is that the beneficiary will be in breach of contract, and liable to its contracting party for damages for any loss caused by the breach. That is not all. An injunction may also be available to prevent a beneficiary who threatens to make a demand contrary to the beneficiary's promise, if it can be shown that damages will not be an adequate remedy. 3. The cases do show that, albeit rarely, mandatory injunctive relief may lie against the beneficiary who has made a demand requiring it to withdraw it. One example may be seen in Kawasaki Heavy Industries at [26]-[28]. It seems that on 15 March 2017, an ex parte injunction was sought to restrain the beneficiary Kawasaki from calling on security bonds, contrary to a (claimed) contractual provision. The reasons do not make it clear, but it seems that it was at least possible that a call had been made prior to service of the ex parte injunction. The Court's judgment records at [28]: On 15 March 2017, upon the giving of the usual undertaking as to damages by Laing O'Rourke, Ball J granted Laing O'Rourke an ex parte injunction preventing Kawasaki from calling on the bonds. Later the same day, Kawasaki informed Laing O'Rourke that it already had made a call on the surety bonds. Ball J thereupon made further ex parte orders requiring Kawasaki to withdraw the call. Later that day, Kawasaki withdrew the call on the bonds. 1. A similar instance may be seen in Kell & Rigby Holdings Pty Ltd v Lindsay Bennelong Developments Pty Ltd [2010] NSWSC 777 at [17]. We accept that, in principle, such relief is possible. Gosford acknowledged as much. But there is a world of difference between obtaining injunctive relief against the beneficiary of a letter of credit who has promised not to call upon it except in certain circumstances, and obtaining injunctive relief against a bank following the presentation of a valid demand. 2. Interlocutory mandatory injunctions are only available in "limited" or "unusual" circumstances, to use the language in Merton v Bank of Queensland Ltd [2013] NSWCA 68 at [4] and Tavcol v Valbeet [2014] NSWSC 1563 at [30]. One problem was indicated by McDougall J in the latter decision at [11], because there may be circumstances where the granting of a mandatory injunction – especially as here imminently before the expiry of the standby letter of credit – would have the effect in a practical sense of determining the substance of the matter. Putting the difficulty in obtaining such relief to one side, the dispositive point is that despite the variety of ways in which Shinetec advanced claims for relief throughout the litigation, it has never sought orders requiring Gosford to withdraw or countermand its demand. 3. The appellants were given full opportunity to respond to this basal difficulty in their case. Before the luncheon adjournment on the first day of the appeal, there was the following exchange: LEEMING JA: Perhaps I should just ask you this. Do you say that if a person who calls upon a letter of credit is in breach of contract, inevitably the result is that the call is invalid or void or of no effect; that is in breach of an obligation that's ultimately found to make the call? ASSAF: It depends upon the contract. LEEMING JA: I see. There's something special about this one. ASSAF: Obviously, it's case specific. LEEMING JA: If the call is made in breach of promise, which is what you say is this case, does it inevitably follow? Does it matter, in other words, if the breach is deliberate or inadvertent or operates on advice? ASSAF: We say the remedy would be the same. The precise legal consequences may differ. I accept that distinction. Yes. LEEMING JA: I want to know what the precise legal consequences are because you want us to say that the call is invalid and/or void and/or of no effect. ASSAF: Yes. LEEMING JA: They may be different things, and I don't know what they are as yet. ASSAF: Yes. LEEMING JA: I think all you say is that that because it's in breach of this implied negative promise, and I want to know whether you say this is a general proposition of contract law. ASSAF: It's certainly specific to this case. I don't want to put it as highly as it's a general proposition. That's putting it too highly. LEEMING JA: What are the facts and circumstances of this particular case that mean the proposition is good? I'm raising it now really for you to give consideration. I suspect we're not going to finish your submissions by lunch time. ASSAF: Yes. Correct. I'll be more precise in due course. 1. Counsel did not return to the point, save to note that in Kell & Rigby Holdings, Hammerschlag J had held that the defendant was not entitled to call on certain Advance Payment Bonds and was entitled to declaratory and injunctive relief against the beneficiary. That is, with respect, no answer to the question, which was directed to the validity (or "voidness" or lack of efficacy) of the demand as between Gosford and Bank of China. 2. The claim that a demand is "invalid" (or "void" or "of no effect") because there is a breach of the Construction Contract is bad in law. It is inconsistent with the nature of a standby letter of credit. These grounds should be dismissed. Ground 6 – the operation of ISP 98 rr 6.11 – 6.13 following the appointment of receivers Overview 1. This ground reflects an aspect of Bank of China's defence of the cross-claim at trial, and is not maintained by that bank on appeal. The ground turns on rr 6.11-6.13 of ISP 98 and the receivers' signatures on Gosford's demand. The short point is that the appellants seek leave to contend that because the demand was signed by the receivers, Bank of China was entitled to request further information, which was not supplied, and in the meantime it was entitled neither to honour nor to dishonour the demand. The respondents seek to uphold the reasons of the primary judge, to the effect that ISP 98 rr 6.11-6.13 are not engaged by the appointment of receivers. They further say, by way of fallback, that it was the interlocutory relief obtained by Shinetec which prevented a response being given, and that when that relief was discharged after final judgment was given, they provided an amply sufficient response to Bank of China's request. Reasons of the primary judge and relevant provisions of ISP 98 1. This ground challenges the reasoning of the primary judge at [235]-[239]: First, it may be that a purpose of the requirement in the Letter of Credit that Gosford's bank confirm that the signatures on any demand were "authentic" was to confirm to the Bank, as the issuer of the Letter of Credit, that the signatures on any demand were "not fraudulently applied". But it was also "for the purpose of identification". Second, the Macquarie Bank 30 July 2021 SWIFT communication went further, and confirmed that the signatures on the Demand were the authentic signatures of "officers" of Gosford. That may not have been called for by the Letter of Credit. But it was a vital part of the documentary material placed before the Bank. It confirmed that the Receivers were not claiming to be successors to Gosford. It follows from this that r 6.11 was not enlivened. The Bank was not entitled to make a request for further documents under r 6.13, as it purported to do in its 3 August 2021 SWIFT communication to Macquarie Bank. The Bank's obligations to honour or give notice of dishonour were, for those reasons, not suspended. Rule 6.12 takes the matter no further, as it is only relevant if the presenting party is a "claimed successor" for the purpose of r 6.11. As the Bank accepts that the Demand was otherwise compliant, and subject to the matters to which I will now turn concerning the effect of the Civil Ruling in the Chinese Court, it follows that Gosford is entitled to judgment against the Bank. (Footnote omitted.) 1. Rules 6.11-6.13 of ISP 98 relevantly provide: Transfer by Operation of Law 6.11 Transferee by Operation of Law Where an heir, personal representative, liquidator, trustee, receiver, successor corporation, or similar person who claims to be designated by law to succeed to the interests of a beneficiary presents documents in its own name as if it were the authorised transferee of the beneficiary, these Rules on transfer by operation of law shall apply. 6.12 Additional Document in Event of Drawing in Successor's Name A claimed successor may be treated as if it were an authorised transferee of a beneficiary's drawing rights in their entirety if it presents an additional document or documents which appear to be issued by a public official or representative (including a judicial officer) and indicate: (a) that the claimed successor is the survivor of a merger, consolidation, or similar action of a corporation, limited liability company, or other similar organization; (b) that the claimed successor is authorised or appointed to act on behalf of the named beneficiary or its estate because of an insolvency proceeding; (c) that the claimed successor is authorised or appointed to act on behalf of the named beneficiary because of death or incapacity; or (d) that the name of the named beneficiary has been changed to that of the claimed successor. 6.13 Suspension of Obligations upon Presentation by Successor An issuer or nominated person which receives a presentation from a claimed successor which complies in all respects except for the name of the beneficiary: (a) may request in a manner satisfactory as to form and substance: (i) a legal opinion; (ii) an additional document … from a public official; (iii) statements … regarding the status of the claimed successor as successor by operation of law; …. (b) Until the issuer or nominated person receives the requested documentation, its obligation to honour or give notice of dishonour is suspended, but any deadline for presentation of required documents is not thereby extended. Submissions 1. Shinetec and Shanxi said that the primary judge was wrong to find that the second and third respondents, the receivers Messrs Hurst and Sampson, were not claiming to be successors to Gosford for the purposes of r 6.11, including by reference to the principle of "strict compliance" to be derived from ISP 98 rr 1.03 and 1.11. They said that the rule was engaged, and that the Bank of China's obligation to pay was suspended pending a response to its request to Macquarie Bank dated 3 August 2021: Whereas: The demand letter dated July 28, 2021 is signed by "The Gosford Pty Ltd (Receivers and Managers Appointed)", but the beneficiary of the standby letter of credit issued by our bank is "The Gosford Pty Limited (ACN630253557)", there are significantly [sic] differences in the form of the two names. Therefore, in accordance with the provisions of Article 6.13A [sic] of ISP 98, you are now required to submit the following documents in original paper form: I. Legal Opinion: II. Additional documents issued by public officials mentioned in Article 6.12 of ISP 98, III. The statement, agreement and indemnity regarding the status of the claimed successor as successor by operation of law, The above-mentioned documents must be submitted to our bank within 7 working days. Until we receive the above-mentioned documents, our obligation to honour or give notice of dishonor is suspended. 1. Gosford and the receivers said that neither Shinetec nor Shanxi should be permitted to run arguments which Shinetec had not run at trial. They said that if the appellants were permitted to run the arguments, they wished to adduce fresh evidence of what occurred, which was to the effect that: 1. Macquarie Bank had been prevented, by the orders obtained by Shinetec on 2 August 2021, from passing on the SWIFT message to Gosford until those orders were discharged on 14 December 2023. 2. Following Shinetec filing a notice of appeal on 14 March 2024, a Chinese law firm was engaged to provide a belated response to Bank of China's request for documents. 3. On 11 April 2024 an attempt was made to deliver a legal opinion confirming that "The Gosford Pty Ltd (Receivers and Managers Appointed)" was the same legal entity as "The Gosford Pty Limited (ACN630253557)" and was not a successor, an ASIC search of the company and the General Security Deed and Deed of Appointment by which the receivers were appointed. However, apparently on the basis that the documents were not transactional, delivery could not be effected and the solicitor was told to deliver them to Bank of China's lawyers. 4. On 15 April 2024, the documents were supplied to Bank of China's (Australian) solicitors, King & Wood Mallesons. 1. Gosford said that if Shinetec and Shanxi were permitted to run the argument, and if ISP 98 was engaged such that Bank of China was entitled to request documents, then the documents supplied in April 2024 satisfied that request, as a result of which the time for honouring or dishonouring the demand had elapsed. 2. Shinetec and Shanxi say that Gosford should not be permitted to rely on the fresh evidence. They say that although it post-dated the trial, in fact it was open to Gosford to take precisely those steps in advance of the trial, either because the orders did not prevent those steps being taken or, if they did, that it was open to Gosford to apply to have the injunction varied. Consideration 1. Subject to one point, we would permit Shanxi and Shinetec to argue this ground. Shanxi and Shinetec assert, and we accept, that they will ultimately be liable for any sum paid by Bank of China. There is no evidence of that, but there is no reason to doubt that Bank of China will look to Shanxi to meet the payment made pursuant to a letter of credit issued at its request, and to the extent that the payment discharges indebtedness of Shinetec, Shanxi will be entitled to an indemnity from its subsidiary. Accordingly, both are "aggrieved" or "sufficiently interested" in the judgment against Bank of China to entitle them to seek leave to appeal, within the meaning of the authorities collected in Talifero v Asbestos Injuries Compensation Fund Ltd as Trustee for the Asbestos Injuries Compensation Fund (2018) 98 NSWLR 1107; [2018] NSWCA 227 at [19]. 2. The point was live before the primary judge, although Shinetec did not argue it at trial. However, telling against the grant of leave is the fact that, at trial, Shinetec chose not to sue Bank of China (it had originally been joined but was removed when on 31 March 2023 a Further Amended Summons was filed which did not include the Bank). Mr Gleeson SC characterised this as "a deliberate decision not to make claims which would determine the rights between them, us and Bank of China" (transcript, 12 July 2024, p 63), to which the appellants made no response. Accordingly, he maintained that if Shinetec of Shanxi were permitted to run these points, it would be an abuse of process. It was said on the first day of the appeal at the outset of its submissions: They're trying now to run Bank of China's points, which, for reasons unexplained, they never ran at trial. If they were to win them, presumably they say, "We love the New South Wales Courts," and they try and use that to say Bank of China doesn't have to pay. If they lose the points, they wish to continue in China to reach the same conclusion by alleging the fraud which they've disavowed in Australia. The dual proceedings are vexatious because of the refusal to accept that an adverse result here will be binding upon them in China. That's the vice in terms of CSR v Cigna. 1. We will return to the alleged abuse of process, because there are other aspects to the abuse relied on in connection with the orders obtained from the Taiyuan Intermediate People's Court which arise in connection with ground 7. Save for the submissions concerning abuse of process, we would be minded to grant leave to the appellants which are directly affected by the judgment against Bank of China to run the points the Bank ran at trial. 2. However, the points were rightly rejected by the primary judge. 3. The standby letter of credit issued by the Bank of China was "only personal to you and is not assignable or transferable". Nonetheless, it was expressed to be "subject to the International Standby Practices ISP 98". It was common ground that that language was sufficient, for the purposes of Chinese law, to incorporate ISP 98. 4. Rule 6.11 mentions receivers, but the rule is only engaged if the person "claims to be designated by law to succeed to the interests of a beneficiary". In that case, if the person "presents documents in its own name as if it were the authorised transferee of the beneficiary", the rules on which the appellants rely will apply. The heading of r 6.11 "Transferee by Operation of Law" is apt: the rule applies where the entitlement to call on the letter of credit has been transferred to another legal person. 5. The short point is that there is no successor to which Gosford's property has been transferred by operation of law. The receivers did not issue the demand in their own name. They did not seek payment to themselves. They made the demand in their capacity as receivers of Gosford, and the funds were to be paid into Gosford's bank account. 6. Messrs Hurst and Sampson were appointed receivers pursuant to a "Deed of Appointment of Receivers and Managers by Secured Party" dated 26 July 2021. Clause 2.3 of the deed provided that, save in circumstances when Gosford was sought to be wound up, "to the extent permitted by law, the Receivers are and acts as the agent of the Grantor". The Grantor was Gosford, which had pursuant to cl 22.3 of a General Security Deed with its creditor Gemi 149 Pty Ltd agreed that the creditor might appoint a receiver as Gosford's agent. 7. The position that a privately appointed receiver is the agent of the grantor until such time as it is wound up reflects the distinction drawn in Gosling v Gaskell [1897] AC 575 and as stated by Dixon J (with whom Gavan Duffy CJ and McTiernan J agreed) in Australian Mutual Provident Society v George Myers & Co Ltd (in liq) (1931) 47 CLR 65 at 82; [1931] HCA 31, holding that despite the receiver being in control of the company's premises, the company remained in occupation. Dixon J said that: It is enough to say that, in my opinion, the true effect of the deed in this case was to render the receiver the agent of the Company and to leave its occupation or possession of its property in point of law undisturbed by his entry and by his assumption of control. 1. The agency is said to be "special" because the receivers are not subject to Gosford's control. That was the point of Rigby LJ's dissenting judgment in Gaskell v Gosling [1896] 1 QB 669 which was affirmed by the House of Lords ("Of course the mortgagor cannot of his own will revoke the appointment of a receiver, or that appointment would be useless. For valuable consideration he has committed the management of his property to an attorney whose appointment he cannot interfere with"). The judgment of Dawson, Gaudron and Gummow JJ in Sheahan v Carrier Air Conditioning Pty Ltd (1997) 189 CLR 407 at 432-433; [1997] HCA 37 confirmed that the receiver is in law the agent of the mortgagor. And in any event, the point is put beyond argument by s 420(2)(k) of the Corporations Act 2001 (Cth), which confirmed that in addition to any powers conferred by the instrument under which they were appointed, Messrs Hurst and Sampson had power "to execute any document, bring or defend any proceedings or do any other act or thing in the name of and on behalf of the corporation". 2. Mr Assaf advanced this submission in his address in chief: What we say is r 6.11 is engaged, contrary, with respect, to what his Honour found. We say the receivers in this case claim to be designated by law to succeed to the interest of Gosford. That's the critical concept, "Presents documents in its own name as if it were the authorised transferee of the beneficiary". These rules on transfer by operation of law apply. We say that that was invoked in this case by virtue of the fact that what was presented to the bank in the letter of demand was presentation made by not The Gosford not the named beneficiary, but, in fact, it was, in substance, presented by the receivers, as contemplated by this rule. 1. We agree that the "critical concept" in the rule is the presentation of documents by a person other than the named beneficiary as if it were the beneficiary's authorised transferee. There was then the following exchange: LEEMING JA: Do you say it was presented by the receivers in their own name? ASSAF: Yes. WARD P: It's signed by them as joint receiver and manager and then underneath that are the words, "The Gosford Pty Ltd receivers and managers appointed". ASSAF: Yes, but we say they claim to be designated by law to succeed to the interests of Gosford. 1. However, that point was answered by Gosford's submission: With a receiver the point is beyond doubt, because under s 420, the receiver is an agent of the company. The receiver does not receive title in its own name, and the only reason the receiver has disclosed its name is because of s 428, which requires the addition of those words. In short, if it is merely a change in control but the [standby letter of credit] is owned by the same person, there is no scope for 6.12 and 6.13. 1. One way of appreciating the force of the obstacles confronting the appellants' submissions was to consider the position where there is a change in the composition of a company's board of directors after the standby letter of credit has been issued, and the new directors, acting in that capacity, issue a demand. Mr Assaf said that if new directors had been appointed to Gosford, and acting as directors they issued the demand in the name of their company, then r 6.11 would not apply. That concession was rightly made. He was then asked how his submission concerning a receiver was any different: ASSAF: It's because of the different characteristics of the nature of the position of a receiver. That's what I say. That's fortified by Professor Gao's opinion. LEEMING JA: Do you accept the receiver is the agent of the company? ASSAF: Yes, however, again, one has to contextualise this agency in the context of r 6.11, and according to Chinese law, the receivership is a situation which involves the transfer of the type contemplated by r 6.11. That's the distinction. It's the nature of the receivership in Chinese law. 1. Parts of this submission were advanced inadvertently, because Professor Gao's opinion on this point had been rejected at trial. As soon as that was pointed out, counsel withdrew the submission. Nothing else was said in response to Gosford's oral submissions. 2. That leaves only Mr Assaf's point that receivers are "specifically mentioned by r 6.11". But that goes nowhere. It is not sufficient in order to engage r 6.11 that the status of the person making a demand be listed in the rule. What engages the rule is not that persons are appointed as receivers, but instead that they present documents in their own name on the basis that they are an authorised transferee of the beneficiary. In response, the appellants said that the receivers "specifically mention their names on the letter of demand". So they do. It would have been a criminal offence for their status not to have been disclosed. Australian law requires that Gosford set out in every public document after its name a statement that receivers and managers have been appointed: Corporations Act, s 428(1). Failing to do so is an offence. But the obligation to include the words "(receivers and managers appointed)" confirms that it is not the receivers personally, but rather the company, albeit a company to which receivers and managers have been appointed, that was making the demand. 3. In order to reach that conclusion, it has not been necessary for us to have regard to the Official Commentary on the International Standby Practices by Professor Byrne, as to which there was an unresolved dispute as to whether, in accordance with Chinese law, regard might be had. But we heard full submissions on the passages on which the appellants sought to place reliance, and they do not alter our conclusion. Nor is it necessary to address the notice of contention, and it is inappropriate to do so, in circumstances where the Court was told that there were issues (including whether documents could be presented years after a request had been made) as to the efficacy of what had occurred. It follows that the fresh evidence is not relevant, and the notice of motion will be dismissed, but with its costs being the parties' costs in the appeal. Ground 7 – the effect of the order of the Taiyuan Intermediate People's Court 1. This ground maintained that the primary judge erred in entering judgment against Bank of China, and ought to have found that "no right to payment ever from [the Bank of China] ever accrued to [Gosford] under the Letter of Credit" and accordingly dismissed the cross-claim. The appellants said that this was because: 1. the Bank of China's "obligations to honour or give notice of dishonour were suspended from 3 August 2021 until the requested documentation under r 6.13 of ISP 98 was provided"; and/or 2. "the Shanxi branch of the [Bank of China] was prevented, by no later than 4 August 2021, from making any payment under the Letter of Credit pursuant to the Civil Ruling of the Taiyuan Intermediate People's Court dated 3 August 2021 and Enforcement Assistance Notice dated 4 August 2021." 1. The first half of this ground takes the matter no further than ground 6. For the reasons given above, rr 6.11-6.13 of ISP 98 were not engaged when the receivers acting as agents of Gosford called on the standby letter of credit for funds to be paid to Gosford. 2. The second half of this ground involves a question of construing the effect of the order of the Taiyuan Intermediate People's Court dated 3 August 2021. 3. The primary judge addressed this at [248]-[260]. His Honour noted at [248] that there was a dispute between the experts about whether the Bank of China was bound, or merely the Shanxi Branch, and a dispute whether the effect of a judgment of the Supreme Court of New South Wales would cause the Civil Ruling to be suspended or terminated. His Honour did not resolve the dispute between them. However, his Honour noted at [250] that the experts were agreed that the Civil Ruling was binding, at least, on the Shanxi Branch of the Bank of China, and that the ruling was under Chinese law in the nature of an interim and not a final ruling. 4. The primary judge said that the Bank of China did not dispute Gosford's submission that entry of judgment does not in terms impose an obligation upon the defendant to do something: at [256]. The result was that: Thus, the mere entry of judgment in favour of Gosford against the Bank would not, itself, cause the Bank to contravene the Civil Ruling. 1. His Honour entered judgment in favour of Gosford but stayed it pending further approach by Gosford or the Bank to the Chinese Court. 2. Shinetec and Shanxi submitted that the Civil Ruling and Enforcement Assistance Notice should have been found to have had the effect "that no right in debt ever accrued". They relied on the propositions that a debt only becomes payable if the time for payment has arrived and an action to recover it can be maintained by the creditor. Because of the orders made by the Taiyuan Intermediate People's Court, the amount was not payable. They said that the Civil Ruling and the Enforcement Assistance Notice should have been found to produce the effect "that no right in debt ever accrued". It is best to reproduce the submissions advanced verbatim: The Shanxi Branch was the Guarantor under the Letter of Credit. The payment obligation under the Letter of Credit therefore rested with the Shanxi Branch, being treated as a separate legal person from the Bank of China and other branches under the Letter of Credit. Gosford and the Receivers appeared to accept as much in their closing oral submissions. This position is also consistent with: (1) Professor Gao's evidence that under Chinese law, the "bank branch from which a standby letter of credit emanates is the issuer, rather than the incorporated bank itself"; and (2) the separate legal personality of bank branches reflected in r 2.02 of ISP98. As noted above, Gosford accepted that the time by which the Shanxi Branch was required to honour or dishonour payment under the Letter of Credit was 10 August 2021. However, before that time for payment arose, the Civil Ruling on 3 August 2021 and EAN served on 4 August 2021 suspended the Shanxi Branch from making any payment under the Letter of Credit: J[250]. The Shanxi Branch has therefore never been able to "honour" the Receivers' purported presentation under the Letter of Credit. To do so would require it do the very thing prohibited by the Civil Ruling, namely "paying the amount demanded of it": r 2.01(b) of ISP98. Any payment obligation it could have under the Letter of Credit remains contingent upon the Civil Ruling being discharged, and therefore the Shanxi Branch has never had a "unqualified and unfettered obligation" to make payment to Gosford in response to the Demand which could give rise to an accrued right in debt. Gosford, advancing a claim in debt, bore the onus of demonstrating that, in its own words, it "had a substantive accrued right". For these reasons outlined above, it has failed to do so. No payment obligation from the Bank of China to Gosford (or the Receivers) ever arose, both because of the operation of r 6.13(b) of ISP98 and the Civil Ruling, and therefore judgment should not have been entered for the claim in debt. (Footnotes omitted.) 1. We cannot accept these submissions. The errors in them may be seen in a number of ways. 2. First, to take a commonplace matter of Australian law, a judgment is regularly stayed pending appeal. The existence of the stay – which carries with it the entitlement of the judgment debtor not to pay, and a denial of the rights of the judgment creditor to execute the judgment – does not mean that there is no debt. The appellants do not point to anything in the Civil Ruling which might bring about a different result. 3. Secondly, the Civil Ruling is not a final ruling. It remains in place for a period of time (in fact it has been continued until 24 July 2024). That is inconsistent with it having substantive effect to deny the debtor creditor-relationship brought about by the presentation of an erstwhile valid demand upon the bank. Another way of putting this is that it is inherent in the ruling that once the suspension expires, the bank will no longer have a basis for declining to make the payment. A third way of making the point is that if the ruling had the force of extinguishing the indebtedness, as opposed to the obligation to make payment, then there would be no need for the suspension to operate over a period of time. 4. Thirdly, the Civil Ruling is obviously to be read together with the Enforcement Assistance Notice. Both were issued on the same day, and both were sealed by the Court. The translation of the Enforcement Assistance Notice is: Please suspend the payment for 12 months from 4 August 2021 to 4 August 2022. Where the suspension ls expired or the freezing is revoked, the payment may resume. 1. It is thus not merely the presence of the verb "suspend" which carries with it an absence of finality, but also the fact that the Bank of China Shanxi Branch was told that payment may resume after the suspension had come to an end. This is inconsistent with the order bringing the debt to an end. 2. Fourthly, the ruling applies only to the payment of money. It does not purport to prevent the Shanxi Branch of the Bank of China issuing a notice of dishonour. That is a powerful illustration of how the parties' underlying rights are unaffected by the interim suspension of payment. 3. Fifthly, there is confusion between the primary rights and obligations as between the parties, and the interlocutory orders made by courts. The Bank of China was obliged to make payment following presentation of the demand. It was excused, for the time being, from doing so following the granting of injunctions. But that did not mean that the $37,000,000 was not due and payable for the purposes of determining whether there was a debt. Instead, it meant that, for the time being, the Bank was unable to pay. 4. Once again, the position may be contrasted with the relief which had not been sought. If an injunction had issued in advance of the presentation of the demand, there would be no debt. Further, if an injunction had issued required Gosford to withdraw or countermand its demand, then there would be no debt. But that did not occur. 5. Sixthly, this submission well illustrates the problems brought about by the parallel proceedings commenced by Shanxi and Shinetec. Shinetec deliberately did not sue Bank of China in Australia. The issue as to whether the order obtained by Shanxi from the Taiyuan Intermediate People's Court affected the debtor-creditor relationship between the Bank as guarantor and Gosford as beneficiary was therefore an issue raised only on Gosford's cross-claim against Bank of China. It is no small thing for Shanxi or Shinetec to be permitted to reagitate that issue on appeal when Shinetec had not sought to run that argument at trial, when Shinetec chose not to continue proceedings against Bank of China, and when the person most directly affected, the Bank of China itself, does not challenge the order against it. 6. We agree with Gosford's submission: There is no merit in the submission that the effect of the Taiyuan Orders, which are and were interim in nature, was to alter the parties' underlying substantive rights rather than preventing payment while those substantive rights were subject to determination in the Taiyuan Court. Abuse of process 1. The arguments advanced in support of ground 7 acutely illustrate the parallel litigation which has been commenced by Shanxi and Shinetec. Shanxi and Shinetec seek to say that the primary judge erred in entering judgment against Bank of China because of an interim order Shanxi obtained in China, based on an allegation of fraud, when in the proceedings brought by Shanxi and Shinetec in this Court, fraud has been expressly disavowed. 2. Not all parallel proceedings are vexatious or oppressive. The joint judgment of the High Court of Australia in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 393-394; [1997] HCA 33 distinguished cases of parallel proceedings which were vexatious or oppressive from those which are not: One well established category of case in which an injunction may be granted in the exercise of equitable jurisdiction is that involving proceedings in another court, including in a foreign court, which are, according to the principles of equity, vexatious or oppressive. Thus, it was said in Carron Iron Company v Maclaren that "[w]here [there is] ... pending a litigation here, in which complete relief may be had, [and] a party to the suit institutes proceedings abroad, the Court of Chancery in general considers that act as a vexatious harassing of the opposite party, and restrains the foreign proceedings." In Société Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect to vexation and oppression, including Peruvian Guano Company v Bockwoldt, have continuing significance for the grant of anti-suit injunctions. Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. In particular, Peruvian Guano establishes that "double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]" does not amount to vexation or oppression. More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Company, if "complete relief" is available in the local proceedings. (Footnotes omitted.) 1. What then is the additional remedy that could not be obtained from the New South Wales courts so as to prevent there being "complete correspondence" in the parallel proceedings commenced by the appellants? Mr Assaf correctly appreciated that this was a matter of importance and commenced his address in reply with the topic. It warrants extensive reproduction. ASSAF: Yes. Can I just say this at the outset. We, obviously, reject any assertion that there is an abuse of process as suggested by Mr Gleeson or at all, and in that regard, I articulated the reasons yesterday, basically, we rely upon CSR, which my learned friend, Mr Gleeson relied upon, specifically at p 393 and, specifically, the discussion there in relation to the circumstances in which multiple proceedings will be – the expression "abuse of process" is not used, but there is a reference to vexatious or oppressive proceedings. WARD P: Can you tell me this, there's no reason that the fraud allegations couldn't have been made in these proceedings ASSAF: With respect, your Honour WARD P: or is there, in which case, tell me why? Is there a different definition of fraud that applies in China? ASSAF: Can I say this, in my submission, if I was running the matter – there was, obviously, a forensic decision made down below, which I was not involved with, obviously, to not press a claim for fraud. There may have been good reasons for that. With respect, that diverts attention, in my respectful submission, that is not the proper approach. What the proper approach is is what the High Court has indicated at p 393, and that is there are – there is some guidance there, "Where an action is going" this is from Peruvian Guano, which my learned friend, Mr Gleeson, relied upon, "Where an action is going on simultaneously abroad which will give other or additional remedies beyond those of the domestic court does not amount" WARD P: What are the other or additional remedies beyond those attainable in the domestic forum in this case? ASSAF: Can I take your Honour to blue 4, p 1461, and specifically line R, but before that, your Honour will notice that the third party is at line K, and the third party is Bank of China Limited Shanxi, which, in my respectful submission, is significant. The remedy that is being sought is an order. It's framed in this awkward language, "Terminate the payment of $37 million under the stand by." Your Honours obviously know what the issue in this appeal and the remedy that is being sought. The remedy that is being sought is that really the cross claim be dismissed. That's it. Nothing further. WARD P: But there would have been nothing to stop a relief akin to this being sought in these proceedings, would there? It's all very well to say it's framed awkwardly or in different terms in this document, but there are parallel proceedings, and they do have the effect of fracturing the litigation, and they do give rise to the risk of inconsistent remedies. You've heard that not just from Mr Gleeson but also the bank's concern. You've heard that from Mr Kay Hoyle. You say to me this falls within what's put at p 393 in CSR v Cigna, and I say what are the other or additional remedies that you could not have obtained in this jurisdiction? ASSAF: It's that remedy there, your Honour. WARD P: That one. ASSAF: Yes, precisely. WARD P: 2. ASSAF: It's the remedy against the Shanxi branch. WARD P: The Shanxi branch couldn't have been joined in these proceedings? ASSAF: Not in my respectful submission. WARD P: I don't understand why. KIRK JA: Aren't they here already? ASSAF: No, that's not the Shanxi branch. KIRK JA: Then I'm not quite sure what Mr Kay Hoyle is doing here. WARD P: He's Bank of China. KIRK JA: But that's Shanxi branch, Bank of China, isn't it? He is here representing the Shanxi branch Bank of China, and if he's not doing that, I hope he's not charging anyone. Who is he here for? ASSAF: Your Honour, obviously in this appeal, in respect of the cross claim, of course, we are seeking to engage with quite limited issues. The issues are different. They are, with respect, fundamentally different. WARD P: Can I just put this proposition to you: I don't understand the test to be whether the issues are different. You can separate out the issues. You could choose to run issues 1 to 3 here and say, "Well, we don't want to run the issue of fraud here. We want to run the issue of fraud in China." That is not the question as to whether they're separate issues on the page of CSR v Cigna that you've taken us to at least twice. ASSAF: In my respectful submission, that's part of the inquiry. WARD P: Then I come back to why couldn't you allege fraud in these proceedings if you had wanted to? I thought you started to tell me that, had you been instructed in it, you might well have done so. ASSAF: I may have done something different. WARD P: Then that really answers my point. You could have done it. ASSAF: It doesn't necessarily lead to the conclusion, with respect, that this is an abuse of process. The alleged fraud is at p 1462, line Q. WARD P: I see. Making those statements in the letter of demand, knowing them to be false, is an allegation that could quite easily have been pleaded here, and it was one that was disavowed. ASSAF: I've made the submission. WARD P: I understand the submission. 1. No adequate answer was given to the matters raised by the Court in those exchanges, for the good reason that there is no answer to them. There is no reason that a claim for fraud could not have been made in the proceedings in New South Wales, assuming there is a proper basis for one. There is no reason why any of the relief sought by Shanxi in the Taiyuan Intermediate People's Court could not have been sought in the Supreme Court for New South Wales, assuming there was a proper basis to do so. 2. We have indicated above Shinetec's candid submission at trial that it did not join the Bank of China in order to prevent there being an abuse of process. But the course adopted on appeal has made the abuse quite clear. There is one process in this Court: the amended notice of appeal. Bank of China is a respondent, and Shanxi sought to be, and was permitted to be, joined as a second appellant. Shinetec and Shanxi together seek to argue points so as to obtain a binding decision in their favour against both Gosford and Bank of China. Yet they insist that Shanxi is entitled to litigate in China the fraud case which was consciously eschewed in New South Wales. That is the clearest possible case of Gosford being vexed twice in different jurisdictions by the same party in circumstances where, to use the language in Carron Iron Company v Maclaren (1955) 5 HL Cas 416; 10 ER 961 and as adopted by the High Court of Australia in CSR v Cigna, "complete relief" is available in the local proceedings. 3. We are conscious that our conclusion that arguing grounds 6 and 7 amounts to an abuse of process is a serious one, to which s 140 of the Evidence Act 1995 (NSW) applies. But we think this is a very clear case. We also note that Shanxi and Shinetec have had ample knowledge that it was a conclusion which this Court might reach. It was explicitly sought in Gosford's written submissions filed in May 2024. 4. We have also reproduced above Shinetec's submission made at first instance explaining that it did not sue Bank of China because it would have exposed it to claims of it being an abuse. Much of what Shinetec contended at trial was wrong, but that submission was correct. Yet in this Court, Shanxi is a party, and the Bank of China has been joined as a respondent, and Shinetec and Shanxi wish to advance claims against the Bank, and have the Bank bound by the outcome, but refuse to undertake to discontinue the proceedings pending in China on the same demand under the same letter of credit involving the same parties, or to abide by this Court's decision. We agree with Gosford that to permit Shanxi and Shinetec to advance grounds 6 and 7 would be an abuse of process. Conclusion and orders 1. In summary, the substantive grounds raised by Shanxi and Shinetec based on the Construction Contract somehow rendering Gosford's demand invalid or void or of no effect (grounds 1 and 4) are bad in law, because they misapprehend the nature of a standby letter of credit. Further, the primary judge was correct to refuse to permit Shinetec to advance the ground based on an "implied negative stipulation" on the first day of the trial (ground 5), and as a matter of discretion, those grounds should not be permitted to be run. 2. Grounds 6 and 7 are arguments which were made by Bank of China in defence of the cross-claim. At trial, Shinetec had not proceeded against the Bank, which was present only as a respondent to Gosford's cross-claim. Bank of China accepts the correctness of the rejection of those grounds. However, in this Court, Shanxi has been joined, and both Shanxi and Shinetec wish to advance those grounds, in circumstances where they refuse to undertake to be bound by the outcome of this Court's decision in the pending proceedings between Shanxi, Gosford and Bank of China in China. The grounds are wrong as a matter of law, because they misapprehend the nature of the appointment of receivers and of interlocutory orders. And further, we have accepted Gosford's submission that it would be an abuse of process to permit Shanxi and Shinetec to advance these grounds. 3. During the hearing of the appeal, Mr Gleeson at one stage suggested that other orders should be made if this Court accepted his submission that there was an abuse of process. However, as was indicated at the time, in the absence of any formal application, we regard it as inappropriate to accede to that request. As we understand it, the stay of the judgment against the Bank of China ordered by the primary judge on 14 December 2023 remains in place, and application may be made to his Honour consequent upon the dismissal of this appeal. 4. For those reasons, the entirety of the appeal (save for those grounds which were dismissed on 11 July 2024 when they were abandoned by the appellants) must be dismissed. Because we have addressed the grounds substantively, in addition to dealing with the submissions pertaining to the grant of leave, and since the appellants have already filed a notice of appeal, it is not necessary for us separately to address the grant of leave. We have not determined the notice of contention, but that needs no separate order dealing with it. It has been unnecessary to resolve Gosford's notice of motion to adduce fresh evidence, which should be dismissed (but with its costs being costs in the appeal). No party sought to be heard against an order that costs of the appeal followed the event. 5. The Court's orders are: 1. Dismiss the notice of motion seeking to adduce fresh evidence filed 19 April 2024. 2. Appeal dismissed with costs. ********** ANNEXURES Letter of Credit (592853, pdf) Demand (1012731, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2024