Shun Sheng Pty Ltd v Lei (No 5) [2024] NSWSC 1109

Supreme Court New South Wales

Medium Neutral Citation: Shun Sheng Pty Ltd v Lei (No 5) [2024] NSWSC 1109 Hearing dates: 5, 6, 19 August 2024; further written submissions ending 28 August 2024 Date of orders: 29 August 2024 Decision date: 29 August 2024 Jurisdiction: Equity Before: Parker J Decision: See [154] Catchwords: CONTRACTS — interpretation — business premises lease agreement between partnership and lessor — whether subject to annual CPI increase — notice requirements LIMITATION OF ACTIONS — contract and debt — where lessor claims unpaid rent from partnership — where partner promised to account to other partner for her share of unpaid rent — where promise to account was not made to the lessor — whether partner confirmed the cause of action — whether partnership renewed the rent agreement with lessor EQUITY — fiduciary duties — breach — rule in Barnes v Addy — where partner in partnership appropriated partnership assets to company of which she was a director — whether company knowingly received partnership property in breach of partner's fiduciary duty — whether company knowingly participated in a dishonest and fraudulent design — whether partnership could be compensated for value of appropriated partnership assets Legislation Cited: Conveyancing Act 1919 (NSW) Electronic Transactions Act 2000 (NSW) Limitation Act 1969 (NSW) Real Property Act 1900 (NSW) Cases Cited: Anderson v Anderson [2017] NSWCA 131 Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151 Barnes v Addy (1874) LR 9 Ch App 244 Beasley v D'Arcy (1805) 1 Sch & Lef 403 Commissioner of Taxation (Cth) v Murry (1998) 193 CLR 605 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296 Irwin v Pamplin (No 5) [2024] NSWSC 484 Jones v Dunkel (1959) 101 CLR 298 Mao v Bao (2023) 113 NSWLR 26 Shun Sheng Pty Ltd v Lei [2023] NSWSC 1176 Shun Sheng Pty Ltd v Lei [2024] NSWCA 43 Shun Sheng Pty Ltd v Lei (No 2) [2023] NSWSC 1623 Shun Sheng Pty Ltd v Lei (No 2) [2024] NSWCA 105 Shun Sheng Pty Ltd v Lei (No 3) [2024] NSWSC 72 Shun Sheng Pty Ltd v Lei (No 4) [2024] NSWSC 635 Super 1000 v Pacific General Securities [2008] NSWSC 1222 United Scientific Holdings Ltd v Burnley Borough Council [1978] AC 904 Texts Cited: S R Derham, Derham on the law of set-off (4th ed, 2010, Oxford University Press) The Conveyancer: Implied Covenants in Leases (1937) 10 ALJ 356 Category: Principal judgment Parties: Statement of Claim Shun Sheng Pty Limited (First Plaintiff) Sunshine Island (Aust) Pty Limited (Second Plaintiff) Xue Feng Wei (Third Plaintiff) Jun Lei (First Defendant) Theo Kitsos (Second Defendant)