Yanlord v James Peng [2008] NSWSC 1212

New South Wales Supreme Court

CITATION : Yanlord v James Peng [2008] NSWSC 1212

HEARING DATE(S) : 4 November 2008 JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 4 November 2008

DECISION : See para [37] of the judgment.

CATCHWORDS : INJUNCTIONS - freezing order - assist disclosure order - grounds for - jurisdiction to grant - nature of evidence required - ex parte relief - party seeking relief ex parte bears a heavy onus to disclose all relevant material - orders set aside for material nondisclosure.

LEGISLATION CITED : Evidence Act 2005 Uniform Civil Procedure Rules

Yanlord (Holdings) Industrial Ltd (First Plaintiff) PARTIES : Yanlord Land Pte Limited (Second Plaintiff) Yanlord Capital Pte Limited (Third Plaintiff) Defendant (James Peng)

FILE NUMBER(S) : SC 50223/08

COUNSEL : E A Cheeseman (Plaintiffs) J V Nicholas SC / N Manousaridis (Defendants)

SOLICITORS : Blake Dawson (Plaintiffs) Elson Pow & Associates (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

McDOUGALL J

4 November 2008 ex tempore (revised – 4 November 2008)

50223/08 YANLORD (HOLDINGS) INDUSTRIAL LTD & ORS v JAMES PENG JUDGMENT 1 HIS HONOUR: The plaintiffs (together "Yanlord") seek:

(1) the continuing of a freezing order made against the defendant (Mr Peng); (2) an order that Mr Peng make an affidavit disclosing his assets. 2 Yanlord's case is that one or other of the plaintiffs made a number of loans to Mr Peng between January 2002 and October 2006. Some of the loans were made in Hong Kong dollars and some in Australian dollars. The total, in Australian dollars, is said to be about 18.4 million dollars. 3 Mr Peng appears to accept that the loans in question were made. However, it would seem, he wishes to argue that they were made either upon terms as to repayment on the occurrence of certain events that have not yet arisen and might not arise or, alternatively, accompanied by representations as to when the repayment obligation might arise, in circumstances that would give rise to some defence of estoppel. 4 It is not necessary to go into the details of the underlying transactions because, to the extent that it is a relevant consideration, I am satisfied that Yanlord has demonstrated at least a fairly arguable case that it is entitled to repayment of the loans in question. 5 Of course, it does not follow from that that Yanlord is entitled to the relief presently sought. To justify the grant of such relief, Yanlord is required to demonstrate an arguable case that if the orders sought are not made the Court's processes may be frustrated because a prospective judgment of the Court might be unsatisfied. See UCPR rr 25.11, 25.14. 6 The matter came before me ex parte in the duty list on 27 October 2008. I was satisfied that a freezing order should be made ex parte, and did so. When the matter was returned, the freezing order was continued by consent but without admission up until today and Yanlord's application for an asset disclosure order was stood over until today. 7 That history is relevant because of the way that Yanlord put its case on the question, was there a danger that any judgment in its favour might go unsatisfied. In the written submissions handed up on 27 October, some nine or ten matters were relied upon. I set out in full paragraph 26 of those submissions: 26. In this case the evidence to support the inference that there is a danger that Mr Peng may arrange his affairs so as to defeat or frustrate any prospective judgment is cumulative and is as follows: (a) Mr Peng has not repaid the loans as they have fallen due;