City Garden Australia Pty Ltd (in liq) v Meng Dai [2024] NSWCA 238

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: City Garden Australia Pty Ltd (in liq) v Meng Dai [2024] NSWCA 238 Hearing dates: 24-26 July 2024 Date of orders: 30 September 2024 Decision date: 30 September 2024 Before: Kirk JA at [1]; Stern JA at [2]; Basten AJA at [3] Decision: (1) Dismiss the further amended notice of cross-appeal filed on 24 June 2024. (2) Dismiss the third cross-respondent's motion filed 24 June 2024 and order that it pay the cross-appellant's costs of the motion. (3) Otherwise order that the cross-appellant pay - (i) the third and eighth cross-respondents' and (ii) the fourth, ninth and tenth cross-respondents' costs of the cross-appeal. Catchwords: CORPORATIONS – authority of company officers – statutory assumptions – Corporations Act 2001 (Cth), ss 128, 129 – loan agreements between property developer and multiple lenders – agreements signed by director without authority of company – agreements also signed by secretary not validly appointed by company – notification of appointment of secretary by ASIC agent of company – reliance on assumptions of authority – exception where party knew or suspected statutory assumptions were incorrect – whether knowledge of lenders' solicitor was imputed to them for purpose of Corporations Act, s 128(4) Legislation Cited: Bankruptcy Act 1924 (Cth), s 95 Corporations Act 2001 (Cth), Pts 2B.1, 2B.2, ss 127, 128, 129, 198A, 204D, 204E, 205B, 1317H Cases Cited: Aidzan Pty Ltd (in liq) v K & A Laird (NSW) Pty Ltd (in liq) [2024] NSWCA 185 All Class Insurance Brokers Pty Ltd (in liq) v Chubb Insurance Australia Limited (No 2) [2021] FCA 782; 154 ACSR 78 Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151; [2023] NSWCA 294 Australia and New Zealand Banking Group Ltd v Frenmast Pty Ltd [2013] NSWCA 459; 282 FLR 351 Beach Petroleum NL v Johnson (1993) 43 FCR 1 Bilta (UK) Ltd (in liq) v Nazir (No 2) [2016] AC 1; [2015] UKSC 23 Caratti v Mammoth Investments Pty Ltd (2016) 50 WAR 84; [2016] WASCA 84 Correa v Whittingham [2013] NSWCA 263; 278 FLR 310 Espin v Pemberton (1859) 44 ER 1380; 3 De G & J 547 Gallop Reserve Pty Ltd v Matton Developments Pty Ltd (2019) 1 QR 99; [2019] QSC 113 In re Hampshire Land Company [1896] 2 Ch 743 Oris Funds Management Ltd v National Australia Bank Ltd [2003] VSC 315 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; [1966] HCA 21 Sargent v ASL Developments Ltd (1974) 131 CLR 634; [1974] HCA 40 Soyfer v Earlmaze Pty Ltd [2000] NSWSC 1068 Story v Advance Bank Australia Ltd (1993) 31 NSWLR 722 Wood v Inglis [2008] NSWSC 1147; 68 ACSR 420 Vane v Vane (1873) 8 Ch App 383 Texts Cited: P Watts and FMB Reynolds, Bowstead & Reynolds on Agency (23rd ed, 2024, Thomson Reuters) S Degeling and J Edelman, Unjust Enrichment in Commercial Law (Lawbook Co 2008) Category: Principal judgment Parties: City Garden Australia Pty Ltd (in liq) as trustee for Ming Tian City Garden Unit Trust (Cross-Appellant) Meng Dai (First Cross-Respondent) (unrepresented) Gerrard Toltz Pty Ltd (Second Cross-Respondent) Gemi 130 Pty Ltd (Third Cross-Respondent) Bridge Street Capital No 2 Pty Ltd (Fourth Cross-Respondent) Wallis Island Pty Ltd (Fifth Cross-Respondent) (unrepresented) Maxmara Trinity Pty Ltd (Sixth Cross-Respondent) (unrepresented) Lin Zhu (Seventh Cross-Respondent) (unrepresented) Gemi Investments Pty Ltd (Eighth Cross-Respondent) Weriton Finance No 2 Pty Ltd (Ninth Cross-Respondent) Saddleback Mountain Estates No 2 Pty Ltd (Tenth Cross-Respondent) Maxmara and JA International Pty Ltd (Eleventh Cross-Respondent) (unrepresented) Representation: Counsel: F Lim (Cross-Appellant) R Dick SC / M Hall (Second Cross-Respondent) H Somerville / M McGirr (Third and Eighth Cross-Respondents) M Young SC (Fourth, Ninth and Tenth Cross-Respondents)