Bindaree Beef Pty Ltd v Chinatex (Australia) Pty Ltd (No 2); Bindaree Beef Pty Ltd v Chinatex (Australia) Pty Ltd [2018] NSWSC 57

Supreme Court New South Wales

Medium Neutral Citation: Bindaree Beef Pty Ltd v Chinatex (Australia) Pty Ltd (No 2); Bindaree Beef Pty Ltd v Chinatex (Australia) Pty Ltd [2018] NSWSC 57 Hearing dates: 2 February 2018 Date of orders: 02 February 2018 Decision date: 07 February 2018 Jurisdiction: Equity - Commercial List Before: Ball J Decision: 1. The orders of the court in the 2016 Proceeding is that the notice of motion filed on 14 December 2017 be dismissed with costs.

2. The orders of the court in the 2017 Proceeding are:

(a) Without admission by the first and second defendants, order 1 made by his Honour Justice Ball on 14 December 2017 be continued until further order; (b) Without admission and upon the plaintiff, by its counsel, giving the usual undertaking as to damages, the second defendant be restrained, until further order, from issuing any shares of any class to any person or to issue any other form of security to any person that is the equivalent of shares in the second defendant or that may be convertible to shares in the second defendant; (c) Without admission and upon the plaintiff, by its counsel, giving the usual undertaking as to damages, the third defendant be restrained, until further order, from: (i) selling, transferring, gifting, disposing of, encumbering, diminishing the value of or otherwise dealing in any way with any shares issued by the second defendant which are legally and/or beneficially owned or held by the third defendant including, without limitation, the 11,000,000 ordinary shares issued by the second defendant which were transferred to the third defendant on 14 November 2017; and (ii) causing the second defendant to issue any shares of any class to any person or to issue any other form of security to any person that is the equivalent of shares in the second defendant or that may be convertible to shares in the second defendant. Catchwords: CIVIL PROCEDURE – Interim preservation – Freezing orders – Continuation of CIVIL PROCEDURE – Interim preservation – Freezing orders – Whether freezing order should be given in respect of a claim under s 37A of the Conveyancing Act CIVIL PROCEDURE – Stay of proceedings – Pending appeal – Whether stay is appropriate on basis that appeal likely to be rendered nugatory by possible liquidation if stay not granted Legislation Cited: Conveyancing Act 1919 (NSW) Practice Note SC Gen 14 Supreme Court Freezing Orders Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bindaree Beef Pty Ltd v Chinatex (Australia) Pty Ltd [2017] NSWSC 1615 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 Category: Procedural and other rulings Parties: Bindaree Beef Pty Ltd (Plaintiff) Chinatex (Australia) Pty Ltd (Defendant 2016/184465 & First Defendant in 2017/377290) Unibale Pty Limited (Second Defendant in 2017/377290) Chinatex Fortune Company Ltd (Third Defendant in 2017/377290) Representation: Counsel: TW Marskell (Plaintiffs) VF Kerr SC with S Golledge (Defendant in 2016/184465) JC Giles SC with PA Gaffney (Second and Third Defendants in 2017/377290)