ALYK (H.K.) Limited v Caprock Commodities Trading Pty Limited and China Construction Bank Corporation [2016] NSWSC 764

Supreme Court New South Wales

Medium Neutral Citation: ALYK (H.K.) Limited v Caprock Commodities Trading Pty Limited and China Construction Bank Corporation [2016] NSWSC 764 Hearing dates: 2 June 2016 Decision date: 10 June 2016 Jurisdiction: Equity - Corporations List Before: Black J Decision: Order that insofar as the Court has given leave to the Plaintiff to enforce the Award, published on 20 January 2015, in the sum of US$2 million plus costs of US$384,000 and EUR 500,000, the Plaintiff may enforce the Award against the First Defendant in the sum of $538,261. Parties to be heard as to costs. Catchwords: CONTRACTS — Construction of limitation of liability clause — where trustee company entered into contract with plaintiff – where contract contained clause limiting trustee's liability to the assets of the trust – whether the limitation clause applies at the date a liability is incurred or date of judgment or at any point in time at which the trustee's right of indemnity is to be exercised.

PROCEDURE — Judgments and orders — where defendant incurred liabilities to the plaintiff in the defendant's capacity as trustee of a particular trust – where defendant was also trustee and held assets of other trusts – where defendant sought a form of order limiting the enforcement of a judgment against it to the assets of the particular trust – whether orders should be made in the form sought by defendant. Legislation Cited: - International Arbitration Act 1974 (Cth), s 8 Cases Cited: - Aces Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402; (2014) 89 NSWLR 209 - ALYK (H.K.) Limited v Caprock Commodities Trading Pty Limited and China Construction Bank Corporation [2015] NSWSC 1006 - ALYK (H.K.) Limited v Caprock Commodities Trading Pty Ltd [2012] NSWSC 1558 - Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 - Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 - Elders Trustee and Executor Co Ltd v EG Reeves Pty Ltd [1987] FCA 332; (1987) 78 ALR 193 - Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd [2014] HCA 7; (2014) 306 ALR 25 - General Credits Ltd v Tawilla Pty Ltd [1984] 1 Qd R 388 - Helvetic Investment Corporation Pty Ltd v Knight (1984) 9 ACLR 773 - Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 325 ALR 188 - Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360 - Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 - Vacuum Oil Co Pty Ltd v Wiltshire (1945) 72 CLR 319 - Watling v Lewis [1911] 1 Ch 414 Texts Cited: - J Allsop, "The Nature of the Trustee's Right of Indemnity and its Implications for Equitable Principle" (Paper delivered Sydney, 18 July 2012) - Jowitt's Dictionary of English law (2nd ed, 1977), Bk 2 - D Loxton and N D'Angelo, "Trustees Limitation of Liability: Myths, Mysteries and a Model Clause" (2013) 41 ABLR 142 - N D'Angelo, Commercial Trusts, (2014, LexisNexis Butterworths) Category: Principal judgment Parties: ALYK (H.K.) Limited (Plaintiff) Caprock Commodities Trading Pty Limited (First Defendant) China Construction Bank Corporation (Second Defendant) Representation: Counsel: J A Hogan-Doran (Plaintiff) A C Harding (First Defendant)