China Insurance Group Finance Company Limited v Kingston (No 3)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

Commercial Court

Commercial List

S ECI 2020 03899

CHINA INSURANCE GROUP FINANCE COMPANY LIMITED	Plaintiff
v
PHILLIP JAMES KINGSTON	Defendant

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JUDGE:	DELANY J
WHERE HELD:	Melbourne
DATE OF HEARING:	30-31 May, 2, 6-9, 16 June, 29 July 2022
DATE OF JUDGMENT:	19 January 2023
CASE MAY BE CITED AS:	China Insurance Group Finance Company Limited v Kingston (No 3)
MEDIUM NEUTRAL CITATION:	[2023] VSC 6

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CONTRACT – Loan agreements – Action for recovery of loans made to the defendant personally – Counterclaim raising a multiplicity of issues – Whether defendant was induced to enter into the agreements by representations the agreements would not be enforced against him personally and that the sole recourse would be to the security provided in connection with the loans – Whether plaintiff estopped by reason of representations – Whether plaintiff engaged in misleading and deceptive conduct – Whether plaintiff engaged in unconscionable conduct – Application of the Money Lenders Ordinance (Hong Kong) cap 163 of the Hong Kong Special Administrative Region – Construction of the loan agreements – Allegations raised by the defence and counterclaim not established – Judgment for the plaintiff.

UNCONSCIONABLE CONDUCT – Australian Securities and Investments Commissions Act 2001 (Cth), ss 12BAA(7)(k), 12BAB, 12CB, 12CC, 12GBCL, 12GM – Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1, applied – Unique International College Pty Ltd v Australian Competition and Consumer Commission (2018) 266 FCR 631; Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; Smash Enterprises Pty Ltd v Euromark Ltd [2022] VSCA 267, referred to.

FOREIGN LAW – Application of the Money Lenders Ordinance (Hong Kong) cap 163 of the Hong Kong SAR, ss 18(1), 18(2), 22(1), 25(2) – Hong Kong Shanghai (Shipping) Ltd v The Owners of the Ships or Vessels ”Cavalry” (Panamanian Flag) [1987] HKLR 287; China Merchants Bank v Minvest International Limited [2001] HKCFI 763, referred to.

EVIDENCE – Tender of a foreign document – Evidence Act 2008 (Vic), s 49 – Failure to call a material witness – Adequacy of explanation – Larner v George Western Foods [2014] VSCA 62 applied; Jones v Dunkel (1959) 101 CLR 298, referred to.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms P A Neskovcin KC with Mr J D S Barber	Ashurst Australia
For the Defendant	Mr C T Moller with Mr T Clarke	HWL Ebsworth Lawyers

TABLE OF CONTENTS

A.... Overview...................................................................................................................................... 1
B.... The Loan Agreements................................................................................................................ 2
B1.... The Standard Terms and Conditions................................................................................ 4
B2.... The Supplementary Agreements....................................................................................... 6
B2.1:... SA1............................................................................................................................. 6
B2.2:... SA2............................................................................................................................. 8
B2.3:... SA3............................................................................................................................. 9
B2.4:... SA4........................................................................................................................... 11

C.... The Parties and Corporate Entities....................................................................................... 15
C1.... CIG and China Taiping..................................................................................................... 15
C2.... Mr Kingston........................................................................................................................ 19
D... The Issues................................................................................................................................... 23
D1.... The first group of issues: Estoppel.................................................................................. 24
D2.... The second group of issues: The Money Lenders Ordinance (Hong Kong)............. 25
D3.... The third group of issues: Interest on SA1-SA3............................................................ 25
D4.... The fourth group of issues: Demands for repayment.................................................. 26
D5.... Other issues........................................................................................................................ 31
E.... The Chronology........................................................................................................................ 32
E1.... Initial dealings: May-November 2017............................................................................ 32
E2.... The GrowthOps IPO: October 2017................................................................................ 35
E3.... The first representation: in Auckland on 25 October 2017: ‘no recourse’................. 36
E4.... The proposal for a corporate loan becomes a proposal for a personal loan............. 41
E5.... The second representation: 11 or 16 November 2017.................................................. 46
E6.... The third representation: 23 or 24 November 2017..................................................... 49
E7.... The personal loan application: 28 November 2017....................................................... 54
E8.... SA1: December 2017.......................................................................................................... 57
E9.... SA2: 25 January 2018......................................................................................................... 57
E10.. The Sargon Promissory Notes: P Note 1: 9 February 2018......................................... 58
E11.. The GrowthOps listing: 16 March 2018.......................................................................... 59
E12.. The fourth representation: 20 April 2018....................................................................... 59
E13.. SA3: 20 April 2018............................................................................................................. 60
E14.. The Sargon Promissory Notes: P Note 2: 28 April 2018.............................................. 61
E15.. SA4: 26 September 2018.................................................................................................... 61
E16.. Interest payments, alleged defaults and terms sheets: April to November 2019..... 62
E17.. Demands and the AUD4.4m payment: December 2019.............................................. 69
E18.. Further demands and letters stated to be ‘without prejudice’: 19 - 30 December 2019 73
E19.. Demands and the appointment of receivers: January 2020......................................... 76
F.... The First Group of Issues: Mr Kingston’s Estoppel Defence.......................................... 81
G... The Second Group of Issues: The Money Lenders Ordinance (Hong Kong).............. 87
G1.... Sections 18(1) and 18(2): The pleadings......................................................................... 88
G2.... Does the MLO apply to the Agreements: The requirements that must be met...... 89
G3.... Are the two requirements satisfied?............................................................................... 91
G4.... What if it is also necessary to prove a sufficient connection?..................................... 93
G5.... Breach of the MLO............................................................................................................. 96
G6.... Relief under s 18(3) of the MLO...................................................................................... 97
H... The Third Group of Issues: ’Interest on the 1^st-3^rd Tranches’........................................ 102
H1... Construction of the agreements..................................................................................... 102
H1.1:.. Construction of Clause 7.................................................................................... 102
H1.2:.. Construction of Clause 11(4).............................................................................. 108

H2... Contentions based on Mr Kingston’s contention that no interest was required to be paid on SA1-SA3 after SA4........................................................................................................... 110
I..... The Fourth Group of Issues: Demands for repayment of the CIG loans and the P Note 111
I1..... The application of the AUD 4.4m payment................................................................. 114
I2..... The unconscionable conduct claims............................................................................. 119
I3..... The legislation.................................................................................................................. 121
I4..... The submissions concerning unconscionable conduct.............................................. 124
I5..... Statutory unconscionable conduct: The principles to be applied............................. 129
I6..... Did CIG engage in unconscionable conduct?............................................................. 132
I7..... The remaining issues....................................................................................................... 136
J..... Disposition............................................................................................................................... 137

HIS HONOUR:

A. Overview

Phillip Kingston is an entrepreneur in the superannuation and technology sectors of the economy. China Insurance Group Finance Company Limited (‘CIG’) is a money lender based in the Hong Kong Special Administrative Region (‘SAR’) of the People’s Republic of China (‘PRC’). CIG is a subsidiary of Taiping Financial Holdings Company Limited (‘Taiping’) and a member of the Taiping group of companies (‘China Taiping’). China Taiping is a state-owned entity of the PRC.

Between December 2017 and October 2018, pursuant to five separate loan agreements, CIG lent HKD653m to Mr Kingston. The loans were in connection with companies whose Australian businesses were promoted by Mr Kingston, and security was provided over shares in those companies in support of the loans. According to CIG, by September 2019, the loans were in default and, by January 2020, steps to enforce the loans commenced. In August 2020, CIG initiated this proceeding to recover the loans, together with interest and costs, from Mr Kingston.

Mr Kingston agrees that HKD653m was lent to him pursuant to the loan agreements. He denies any personal obligation to repay the loans, and says CIG was limited to having recourse to the shares and/or collateral provided under the loan agreements. Mr Kingston says that he entered into each of the loan agreements on the basis of representations made by Wang Zhen (Mr Wang) and others on behalf of CIG that he would not be personally liable in the event of default and that there would be no recourse beyond the security provided in support of the loans, shares in the companies.

Mr Kingston denies that the loans were in default at the time CIG demanded payment. He says that the loan agreements were made in breach of the Money Lenders Ordinance (Hong Kong) cap 163 of the Hong Kong SAR (‘the MLO’). He alleges that, by:

(a) issuing invoices or demanding the payment of interest that was not due; and

(b) alleging that he had committed events of default and/or that it was entitled to demand the immediate repayment of principal,

CIG engaged in misleading and deceptive conduct in contravention of s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (‘ASIC Act’).

Mr Kingston further alleges that, by:

(a) demanding payment of principal and interest;

(b) asserting events of default; and

(c) pursuing its claim in this proceeding,

CIG engaged in unconscionable conduct in contravention of s 12CB(1) of the ASIC Act.

CIG denies Mr Kingston’s allegations.

Many of the issues raised by Mr Kingston in defence of the CIG debt recovery claim against him and by his counterclaim turn on whose evidence of contested conversations and meetings, including those at which he alleges the representations on which he relied were made, is accepted. For the most part, I do not accept Mr Kingston’s version of events. He was not a credible witness.

So far as the issues raised by Mr Kingston concern the construction of documents, specifically, clauses of the supplementary loan agreements, I do not accept the construction of those clauses for which he contends. I do not agree that demands for the payment of interest on the loans were wrongful or that the loans were not in default at the time that CIG demanded payment. I do not agree that CIG engaged in conduct in contravention of the ASIC Act.

For the reasons that follow, there will be judgment for CIG in the amount of the claim together with interest and, subject to further submissions, costs. The counterclaim by Mr Kingston will be dismissed.

B. The Loan Agreements

The loan agreements upon which CIG relies in support of its claim are as follows:

(a) an agreement between CIG and Mr Kingston executed by Mr Kingston on 28 November 2017 for a HKD100m loan (the ‘Loan Agreement’);

(b) a supplementary agreement to the Loan Agreement between CIG, Mr Kingston and Trimantium International Holdings Pty Ltd (‘Trimantium International Holdings’) executed in December 2017 pursuant to which HKD100m was advanced (‘SA1’);

(c) a second supplementary agreement between CIG, Mr Kingston and others executed in January 2018 pursuant to which HKD100m was advanced (‘SA2’);

(d) a third supplementary agreement between CIG, Mr Kingston and others executed in April 2018 pursuant to which HKD200m was advanced (‘SA3’); and

(e) a fourth supplementary agreement between CIG, Mr Kingston and others executed in September 2018 pursuant to which HKD253m was advanced (‘SA4’).

Each of SA1-SA4 is a ‘Supplementary Agreement’ and together are the ‘Supplementary Agreements’.

Each of the loan agreements had two components. The first, CIG’s standard terms and conditions (‘STCs’) contained in the Loan Agreement. The second, each of the Supplementary Agreements, SA1, SA2, SA3 and SA4.

Each of SA1-SA4 provide that the terms and conditions of those agreements prevail over the Loan Agreement to the extent of any inconsistency. Each subsequent Supplementary Agreement is also specified to prevail over any preceding Supplementary Agreement.

Two versions of each of SA1-SA4 were prepared, one in the English language and the other in Chinese characters. Both versions contain an express term to the following effect:

In the event there is any inconstancy [sic] between the Chinese version and English version of this Supplementary Agreement then the Chinese version shall prevail.

B1. The Standard Terms and Conditions

The STCs in the Loan Agreement specify that the governing law is the law of Hong Kong.

Clause 1 of the STCs in the Loan Agreement includes the following definitions:

Amount Owing means the total of all amounts that at any time are payable, are owing but not payable, or are contingently owing, by the Customer in connection with this Agreement (including transactions in connection with this Agreement) to the Finance Company, including any Amount of Credit advanced under a Loan and any interest payable under this Agreement.
Finance Company means China Insurance Group Finance Company Limited.
Repayment Date means the date on which repayments must be made as set out in the Loan Schedule.

The STCs also include:

2The Loan
2.1The Finance Company makes the Loan available to the Customer in accordance with these Term [sic] and Conditions.
2.2The Loan must be used for the purpose set out in the Loan Schedule.
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4Interest
4.1The Customer agrees to pay interest to the Finance Company on the Amount of Credit owing as at the Repayment Date at the applicable Interest Rate.
4.2Interest:
(a)accrues daily from (and including) the day the Date of the Loan; and
(b)is payable monthly in arrears on the Repayment Date or, if that date is not a Business Day, the next Business Day; and
(c)is calculated on actual days elapsed using a year of 360 or 365 days (as determined by reference to usual market practice for the relevant currency).

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7Repayment
7.1The Customer must repay the Finance Company the Amount of Credit by making repayments during the Loan Term.
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7.5If an Event of Default occurs and the Finance Company requires the Customer to do so, the Customer must repay all or part of the Amount Owing within 2 Business Days’ after notice is given to the Customer.
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23Set off
23.1In addition to any other Security the Finance Company requires, the Finance Company holds the benefit [of] all the Customer’s assets (including the Collateral deposited with Taiping Securities and any other assets deposited with the Finance Company for any purpose) as security for the total Amount Owing and any amount which the Customer may owe the Finance Company in the future.

Clause 31 titled ‘Representations and warranties’ includes:

31.1The Customer represents and warrants that:
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(j)(no reliance)
(i)it has entered into this Agreement without relying on the Finance Company (in whatever capacity) or their advisers or on any representation, warranty, statement, undertaking or conduct of any kind made by any of them or on their behalf except as expressly set out in this Agreement; …

Clause 32 concerns an event of default:

32.1There is an Event of Default if:
(a)the Customer or a Guarantor fail to perform or observe any obligation under this Agreement in a material respect, including an obligation to pay an amount on time;
(b)the Customer does not pay interest, fees or other amounts due under this Agreement; …

Clause 33 is titled ‘Enforcement action’:

33.1Where there is an Event of Default, the Finance Company may take any action it considers appropriate to enforce this Agreement or any Security including:
(a)employing any third party agent to collect any amount owing to the Finance Company;
(b)taking steps to enforce the Finance Company’s rights against the Customer’s assets such as by lodging caveats; and
(c)commencing legal proceedings against the Customer.

Clause 41 is titled ‘Prompt performance’:

41.2Time is of the essence in respect of the Customer’s obligations to pay any money.

B2. The Supplementary Agreements
B2.1: SA1

On 3 December 2017, Mr Kingston (as Party A) signed SA1 on his own behalf and on behalf of Trimantium International Holdings (as Party C) and, on 6 December 2017, CIG (as Party B) signed SA1.

SA1 provides for a loan of HKD100m from CIG to Mr Kingston, HKD87m of which was to be advanced and HKD13m was to be applied to cover interest, with security for the loan to be provided by Mr Kingston including HKD300m in shares in Sargon Capital Pty Ltd (‘Sargon’). Clause 1 of SA1 provides:

1.Borrowing limit: In respect of the HK$100 million loan provided by Party B to Party A (the “Loan”), Party A shall provide no less security than the mortgage of:
i)HK$300 million market value of Sargon Capital Pty Ltd’s common stock (“Stock I”)
ii)HK$87 million Trimantium GrowthOps Ltd (“GrowthOps”) shares listed on the Australian Stock Exchange (“Stock II”) held by Party C.

iii)100% of the shares in Party C (“Stock III”).
iv)HK$13 million in cash stored in bank account (“Margin Account”) in the name of Party A for the payment of interest.
v)any other asset such as cash or shares that Party B accepts as security at its absolute discretion.

Items i) through v) are collectively referred to as the “Collateral”.

Mr Kingston was cross-examined about the application of the SA1 loan proceeds. Although, as recorded in clause 1(ii), the intent of the loan was for Trimantium International Holdings to apply HKD87m to subscribe for shares in Trimantium GrowthOps Limited (‘GrowthOps’), as events transpired, Trimantium International Holdings only subscribed for AUD7,945,570 in GrowthOps shares.

Clauses of SA1 include:

4.Mortgage ratio: The current mortgage rate is 25%, that is the value of the principal of the Loan divided by the Collateral.
…
6.Loan interest rate: The Bank of China prime rate (currently 5.0%) + 3.1%, that is, the interest rate is currently 8.1%.
7.Loan term and interest settlement date: The Loan provided by Party B has a term of 18 months, both parties can negotiate renewal in good faith. Interest accumulates daily, and is paid monthly, and the interest settlement date is the last business day of each month. Party A’s cash deposit in Party A’s Hong Kong bank account will be used to pay interest automatically. In the borrowing period, Party B has the right, with 60 days advance notice to Party A, to request an early repayment.
8.Repayment: Repayment of principal and outstanding interest payables and other approved payables are paid on maturity of the Loan. Party A authorizes Party B to use the Margin to pay Party B all the reasonable expenses incurred by the Margin Account, such as account service fees, and the repayment of the Loan principal due and any unpaid interest and other approved payables.
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11.Recover collateral/margin requirements:
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(4)If Party A fails to repay the Loan principal and interest on the loan maturity date, if Party A cannot repay the principal and interest of Party B within 20 working days of breach of contract, Party B shall directly obtain all collateral under this Supplementary Agreement.

The clauses of SA1 set out above were replicated in substance in each of the later Supplementary Agreements but with, amongst other differences, different mortgage ratios, interest rates and loan terms being specified. One notable exception is clause 7, which is dealt with separately below.

Clause 11(4) of SA1 refers to a period of 20 working days from breach of contract within which Mr Kingston must repay the loan. Clause 7.5 of the STCs requires repayment two business days after notice of default. To the extent of any inconsistency, clause 11(4) prevails.

CIG contends that, on its proper construction, clause 11(4) allowed it to obtain and to retain all collateral for the loan if a breach of contract was not remedied within 20 working days, but that the remedy in clause 11(4) was not the only remedy available to it in the event of default. That construction is not agreed to by Mr Kingston, who contends that the sole recourse available to CIG was to obtain all collateral.

B2.2: SA2

SA2 was signed by Mr Kingston on 25 January 2018. Mr Kingston (Party A) is named as the borrower and CIG (Party B) as the lender. Additional parties to SA2 are Trimantium International Holdings (Party C) and Asia Selangor Investments Pty Ltd (‘Asia Selangor’) (Party D).

Mr Kingston signed SA2 in his own capacity and as a director of Trimantium International Holdings. Although Mr Kingston is not recorded on ASIC documents as a current or former director of Asia Selangor, he also signed SA2 for and on behalf of Asia Selangor as ‘director’. While Mr Kingston denied that the reason he signed SA2 as ‘director’ of Asia Selangor was because he was in effective control of Asia Selangor, I do not accept the truth of that evidence.

The purpose of SA2 was to provide a further HKD100m loan, of which HKD87m was to be used by Asia Selangor to subscribe for shares in the GrowthOps IPO, with HKD13m to be retained in the ‘Margin Account’ in the name of Mr Kingston for interest payments. Clause 1 of SA2 provides:

1.Borrowing Limit: In respect of the HK$100 million loan provided by Party B to Party A (the “Loan”), Party A shall provide no less security than the mortgage of:
a)HK$360 million market value of Sargon Capital Pty Ltd’s common stock (the “Stock I”);
b)HK$87 million Trimantium GrowthOps Ltd (“GrowthOps”) shares listed on the Australian Stock Exchange (the “Stock II”) held by Asia Selangor Investments Pty Ltd (i.e. Party D), and 100% of the shares in Party D (“Stock III”);
c)HK$13 million cash deposited in bank account (the “Margin Account”) in the name of Party A for the payment of interest; or …

B2.3: SA3

On 20 April 2018, Mr Kingston and CIG signed the Chinese version of SA3. Mr Kingston did so having confirmed in an email on the previous day that the document had been translated for himself and for all parties to SA3 and that each of them were fully aware of and approve its contents.

In addition to Mr Kingston (Party A) and CIG (Party B), the parties to SA3 are Trimantium International Holdings (Party C), Asia Selangor (Party D), Forci Alternative Strategies Pty Ltd (‘Forci’) (Party E) and Pattani Private Capital Pty Ltd (‘Pattani’) (Party F). Each of Parties C-F signed SA3 in their capacity as subscribers to shares in GrowthOps. Additional parties to execute SA3 were Louis Holbrook Company Pty Ltd (‘Louis Holbrook Company’) (Party G) (a shareholder in Party C), Vonny Tjhin as trustee for Selangor Trust 1 (Party H) (a shareholder in Party D), Nattiya Pothong as trustee for Pothong Family Trust (Party I) (a shareholder in Party E), Thananchanok Thaicharoen as trustee for Pattani Private Trust (Party J) (a shareholder in Party F) (Parties G-J are defined as the ‘Ultimate GrowthOps Shareholders’), together with Trimantium Capital Pty Ltd (‘Trimantium Capital’) and Trimantium Capital Funds Management Pty Ltd (‘TCFM’) (Trimantium Capital and TCFM are defined as the ‘Sargon Shareholders’).

SA3 brought together the loans the subject of SA1 and SA2 (totalling HKD200m) and advanced a further HKD200m for a total loan of HKD400m. The term of the SA3 loan was 24 months with interest payable quarterly.

Clause 1 of SA3 was expanded, compared to SA1 and SA2, so as to bring all ‘Collateral’ together.

Clause 1 of SA3 provides:

1. Borrowing Limit:
As to the date of this SA III, based on original loan agreement, SA I and SA II, Party B has lent HKD200 million to Party A (Original Loan Amount) and Party A has provided no less than HKD860 million securities under the original loan agreement, SA I and SA II, which includes a) HKD660 million ordinary shares in Sargon Capital Pty Ltd (Stock i); b) HKD174 million shares in Trimantium GrowthOps Limited (GrowthOps), (an ASX listed company) (Stock ii) and 100% shares in Party C and D (Stock iii); and c) HKD26 million cash deposited in Party A’s bank account (“Guarantee Money”), which is used to pay interest.
(a)-c) all together “Original Securities”)
In accordance with this SA III, Party B agrees to lend additional HKD200 million to Party B (Loan). To avoid any doubt, Party B has agreed to lend HKD400 million in total to Party A (Total Loan Amount), including:
1) HKD200million under SA I and SA II (i.e. Original Loan Amount) which Party B has already lent to Party A; and
2) HKD200 million under this SA III (i.e. Loan).
Regarding the Total Loan Amount, Parties agree Party A must provide no less than HKD1.6billion shares (Share Pledge) as security to Party B. Parties also agree that the updated security list is as follows:
(i) 1 million ordinary shares in Sargon Capital Pty Ltd (Sargon) directly or indirectly held by Party A or TCPL (which accounts for 50% of total ordinary shares issued). As to date of this SA III, the market price of the shares is around HKD915 million. (Share 1);
(ii) 475,000 preference shares in Sargon directly or indirectly held by Party A or TCFM (which accounts for 57% of total preference shares issued). As to date of this SA III, the market price of the shares is around HKD434 million. (Share 2);
(iii) 120,000 preference shares in Sargon issued to TCFM by way of call for capital (Call for Capital), and the market price is about HKD110million. (Share 3);
(iv) 58,950,000 ordinary shares in GrowthOps directly or indirectly held by Party C, D, E, F or Ultimate GrowthOps Shareholders (which accounts for 62.14% of total ordinary shares issued). As to the date of this SA III, the market price of the shares is about HKD410million (Share 4). Share 4 are directly held by Party C, D, E and F. In addition, the security also includes 100% shares in Party C, D, E and F (Share 5). Share 5 are directly held by Party G, H, I and J; or
(v) any other assets such as shares that Party B accepts as security at its absolute discretion. (Share 1,2,3,4 and 5 together “Shares” or “Collateral”).
…

Other terms of SA3 include:

6.Loan interest rate: on and before the date of this SA III, the loan interest rate is: The Bank of China prime rate (currently 5.0%) + 3.1%, that is, the interest rate is currently 8.1%.
After the date of this SA III (not including the date of this SA III, the loan interest rate will be: The Bank of China prime rate (currently 5.0%) + 2% = 7%.
7.Loan term and interest payment date: The Loan provided by Party B has changed to a term of 24 months from the date of this SA III. If Party A does not provide written notice to terminate the loan agreement a month before the expiry of the loan term, the term will extend to a further 12 months automatically. Interest accumulates daily on the total loan amount, and the interest is changed to be paid quarterly. The interest payment date is the last business day of each quarter. Party A agrees that Party A will not repay the principal amount or terminate the loan agreement within 12 months from the date of this SA III. After this 12 month period, Party A can terminate the loan agreement with one month written notice to Party B and repay the principal, interests and other payables. However, during the term of the loan agreement, Party B has the right, with 60 days prior notice to Party A, to request an early repayment.
…
11.Recover collateral / guarantee requirements:
…
(4)if Party A, C, D, E, F, Ultimate GrowthOps Shareholders or Sargon Shareholders fails to repay the loan and interest, it constitutes a breach of contract, and if Party A, C, D, E, F, Ultimate GrowthOps Shareholders or Sargon Shareholders cannot repay the principal and interest within 20 business days from the date of the breach, Party B is entitled to take possession of Collateral immediately without further notice to Party A, C, D, E, F, Ultimate GrowthOps Shareholders or Sargon Shareholders.

Clause 7 of SA3 is not in the same terms as clause 7 of SA1 and SA2. Clause 7 provides that Mr Kingston will not repay the principal amount or terminate within 12 months of the date of SA3. Consistent with SA1 and SA2, it further provides that, during the term of SA3, CIG has the right, with 60 days’ prior notice to Mr Kingston, to request an early repayment.

B2.4: SA4

On around 28 September 2018, Mr Kingston signed the Chinese version of SA4, a new standalone facility for HKD253m.

The parties to SA4 are Mr Kingston (Party A) as the customer/borrower, CIG (Party B) as the lender and various other entities associated with Mr Kingston. Those entities and the capacities in which they executed SA4 are as follows:

(a)Trimantium International Holdings, noted to be a ‘GrowthOps shareholder’ (Party C). Aron D’Souza (‘Dr D’Souza’) signed SA4 on behalf of Trimantium International Holdings in his capacity as a director;
(b)Asia Selangor, noted to be a ‘GrowthOps shareholder’ (Party D). Vonny Tjhin signed SA4 on behalf of Asia Selangor in her capacity as a director;
(c)Forci, noted to be a ‘GrowthOps shareholder’ (Party E). Nattiya Pothong signed SA4 on behalf of Forci in her capacity as a director;
(d)Pattani, noted to be a ‘GrowthOps shareholder’ (Party F). Thananchanok Thaicharoen signed SA4 on behalf of Pattani in her capacity as a director;
(e)Louis Holbrook Company, noted to be a ‘Party C shareholder’ (Party G). Dr D’Souza signed SA4 on behalf of Louis Holbrook Company in his capacity as a director;
(f)Vonny Tjhin as trustee for Selangor Trust 1, noted to a ‘Party D shareholder’ (Party H);
(g)Nattiya Pothong as trustee for the Pothong Family Trust, noted to be a ‘Party E shareholder’ (Party I);
(h)Thananchanok Thaicharoen as trustee for Pattani Private Trust, noted to be a ‘Party F shareholder’ (Party J);
(i)Trimantium Capital, noted to be a ‘Sargon shareholder’. Mr Kingston signed SA4 on behalf of Trimantium Capital in his capacity as a director;
(j)Trimantium Limited (‘Trimantium HK’), noted to be a ‘Sargon shareholder’. Mr Kingston signed SA4 on behalf of Trimantium HK in his capacity as a director;
(k)TCFM, noted to be a ‘Sargon shareholder’. Mr Kingston signed SA4 on behalf of TCFM in his capacity as a director; and
(l)Trimantium Taiping Investment Management Pty Ltd (‘TTIM’), noted to be a ‘Dragon Shield shareholder’. Mr Kingston signed SA4 on behalf of TTIM in his capacity as a director.

Clauses 1.3 and 1.4 of SA4 include the following:

1.3According to this Supplementary Agreement IV, Party B agreed to provide an additional loan of HK$253 million to Party A (“This Loan”). For the avoidance of doubt, according to the Loan Agreement, Party B agreed to provide a total of HK$653 million loan to Party A (“Total Loan”), including:
(1)Pursuant to the Supplementary Agreement I, the Supplementary Agreement II and the Supplementary Agreement III, Party B has provided a total of HK$400 million loan (being, the Original Loan) to Party A; and
(2)Pursuant to this Supplementary Agreement IV, Party B will provide HK$253 million loan (being, This Loan) to Party A.

1.4In respective of the Total Loan, all Parties hereby agree to provide Party B not less than a total of HK$1.866 billion stock collateral (“Stock Collateral”), all Parties hereby agree that all of the Original Collateral under the Loan Agreement updated as follows:
(i)Party A or TCPL indirectly or directly holds 1 million ordinary shares of Sargon Capital Pty Ltd (“Sargon”) (representing 50% of the total issued ordinary shares of Sargon), as of the date of this Supplementary Agreement IV, its market value is approximately HK$941 million (“Stock A”);
(ii)Party A or TL indirectly or directly holds 140,000 ordinary shares of Sargon (representing 7% of the total issued ordinary shares of Sargon), as of the date of this Supplementary Agreement IV, its market value is approximately HK$132 million (“Stock B”);

…
(vi)Party C, Party D, Party E, Party F, or GrowthOps upper shareholders directly or indirectly holds 58.95 million ordinary shares of Trimantium GrowthOps Limited（“GrowthOps”）, an Australian Stock Exchange listed company (representing 62.14% of the total issued ordinary shares of GrowthOps), as of the date of this Supplementary Agreement IV, its market value is approximately HK$436 million ("Stock F"). Stock F is directly held by Party C (being, Trimantium International Holdings Pty Ltd), Party D (being, Asia Selangor Investments Pty Ltd), Party E (being, Forci Alternative Strategies Pty Ltd), and Party F (being, Pattani Private Capital Pty Ltd) respectively, and 100% of the total issued shares of each of Party C , Party D, Party E, and Party F ("Stock G") are mortgaged to Party B. 100% of the total issued shares of each of Party C, Party D, Party E and Party F are directly held by Party G (being, Louis Holbrook Company Pty Ltd), Party H (being, Vonny Tjhin as trustee for Selangor Trust 1), Party I (being, Nattiya Pothong as trustee for Pothong Family Trust), and Party J (being, Thananchanok Thaicharoen as trustee for Pattani Private Trust) respectively;
…

Other terms of SA4 include:

6. Annual interest rate of the loan:
The interest rate of the Original Loan (being, HK$400 million) is: The Bank of China prime rate (currently 5.0%) + 2%, that is, the interest rate is currently 7%.
The interest rate of This Loan (being, HK$253 million) is: 5.5%.

There was a contest between the parties concerning clause 7 of SA4 because the English and Chinese versions of clause 7 are not identical. The agreed translation of the Chinese version of clause 7 of SA4, the version that binds the parties in case of inconsistency, is as follows:

7. Loan Term and Interest Settlement Date:
The loan term of the Original Loan (HK$400 million) is updated to 36 months from the date specified in Supplementary Agreement III (ending on 19 April 2021). The Original Loan shall accrue interest on a daily basis. Interest shall be paid on a quarterly basis on the interest settlement date, which is the last business day of the quarter. Party A agrees not to repay the principal of the Original Loan or terminate the Loan Agreement within twelve months from the date specified in Supplementary Agreement III. After 12 months from the date specified in Supplementary Agreement III, Party A may propose to terminate the Loan Agreement by giving a one-month notice in writing, and repay the principal and any outstanding interest of the Original Loan and any other amounts payable. However, during the term of the Original Loan, Party B has the right to require Party A to make a repayment at any time by giving Party A a 60-day notice.
The loan term of this loan (HK$253 million) is 24 months from the date of utilization request from Party A to Party B for the drawdown of this loan. This loan shall accrue interest on a daily basis. Interest shall be paid on a half-yearly basis on the interest settlement date, which is the last business day of the half-year period. Party A agrees not to repay the principal of this Loan or terminate the Loan Agreement within 12 months from the date specified in this Supplemental Agreement. After 12 months from the date specified in this Supplemental Agreement, Party A may propose to terminate the Loan Agreement by giving a one-month notice in writing, and repay the principal and any outstanding interest of this loan and any other amounts payable. However, during the term of this loan, Party B has the right to require Party A to make a repayment at any time by giving Party A a 60-day notice.
Without Party B’s prior written approval and confirmation on collateral adequacy, Party A shall promise and undertake to make repayments in the following order:
(1) paying off the total principal and any outstanding interest of this loan and any other amounts payable; and
(2) paying off the total principal and any outstanding interest of the Original Loan and any other amounts payable.
Party A undertakes and warrants that it will not give priority to the repayment of the Original Loan and its outstanding interest and other amounts payable before this loan and its outstanding interest and other amounts payable are fully repaid.

The key inconsistency between the English language version of clause 7 of SA4 and the version in Chinese characters is that the English version does not include the word ‘outstanding’ where that appears in (1) and (2) of the third paragraph of the translation of the Chinese character version.

Clause 11(4) of SA4, under the heading ’11. Recovery collateral/margin requirements’ is in the following terms:

(4)If Party A, Party C, Party D, Party E, Party F, GrowthOps upper shareholders, Sargon shareholders, and Dragon Shield shareholders fail to repay the Loan principal and interest on the loan maturity date, then immediately constitute an event of default. If Party A, Party C, Party D, Party E, Party F, GrowthOps upper shareholders, Sargon shareholders, and Dragon Shield shareholders still unable to repay the principal and interest of Party B within 20 business days from the date of event of default, Party B shall directly obtain all collateral without further notice to Party A, Party C, Party D, Party E, Party F, GrowthOps upper shareholders, Sargon shareholders, and Dragon Shield shareholders.

C.The Parties and Corporate Entities

C1. CIG and China Taiping

CIG is a company incorporated under the laws of the Hong Kong SAR of the PRC. At relevant times, CIG’s business predominantly involved large-scale financing and the provision of loan services to individual and corporate borrowers. CIG is a licensed money lender under the MLO.

China Taiping has a remit to implement high-level initiatives or strategies of the PRC, including the PRC’s ‘Belt and Road Initiative’. The companies in China Taiping include:

(a)China Taiping Insurance Holdings Company Limited (‘China Taiping Holdings’), headquartered in the Hong Kong SAR;
(b)Taiping Trustees Limited (‘Taiping Trustees’), a subsidiary of China Taiping Holdings;
(c)Taiping, a subsidiary of China Taiping Holdings;
(d)CIG, a subsidiary of Taiping;
(e)Taiping Assets Management (HK) Company Limited (‘Taiping Assets Management’), a subsidiary of Taiping; and
(f)Taiping Financial Investment Company Limited, a subsidiary of Taiping.

Mr Wang, also known as Andy Wang, was an employee of Taiping between 2017 and March 2020. While Mandarin is his first language, Mr Wang is fluent in, and can write and speak, English.

Mr Wang has a Master’s Degree in Finance from Oxford University (2007) and a Bachelor’s Degree from the London School of Economics. Mr Wang joined Taiping after nine years working as an Analyst at HSBC. Approximately one year after joining Taiping as Deputy General Manager of the Markets department, Mr Wang took on the role of General Manager of Overseas Investments. He left Taiping in March 2020.

Mr Wang’s roles and responsibilities included accompanying ‘leaders’ (including the CEO, CIO and CFO) to meet clients, assisting the leaders to carry out due diligence work, and working with others to prepare materials to submit to ‘the committee’ for assessment and approval. After a decision was reached by the committee, Mr Wang’s role involved assisting others to carry out communications with clients. Mr Wang was not a member of any of China Taiping’s committees and did not have any voting rights.

Following letters of request issued by this Court,[1] an order was made by the High Court of the Hong Kong SAR for the taking of evidence from Mr Wang before an examiner, pursuant to the laws and procedures of the Hong Kong SAR. Mr Wang’s evidence was taken over two days prior to the commencement of the trial proper in Australia.[2] His evidence was videotaped and transcribed. As provided for in the Official Languages Ordinance (Hong Kong) cap 5, Mr Wang elected to give his evidence in Mandarin. The questions directed to Mr Wang were in English and were translated into Mandarin.
[1]Pursuant to an order dated 5 April 2022; see reasons in China Insurance Group Finance Company Ltd v Kingston (No 2) (Unreported, Supreme Court of Victoria, Delany J, 5 April 2022).
[2]On 23 and 24 May 2022.

Mr Wang described the period that he spent at Taiping as ‘pretty much like a rollercoaster experience’, ‘not simply just with respect to Sargon’. Mr Wang agreed that he did not recall much in detail about that time, and that he was quite confused about the details, especially because the project was conducted in a foreign language which is not his mother tongue.

Mr Wang said that while he was employed at Taiping there were ‘three batches of bosses’. He said that he had a lot of change of leadership above him and received many different kinds of directive guidance. He described his recollection of the events as ‘quite sporadic and chaotic’.

Mr Wang’s first ‘batch of bosses’ were Xudong Li (Mr Li), who was the CEO, and Rujie Zhang, who was Mr Wang’s direct boss. The second ‘batch of bosses’ were Xiangyang Wang, who became the CEO about one year after Mr Li, and Guanying Li, who became Mr Wang’s direct boss about one year after Rujie Zhang. Mr Wang gave evidence that, around that time, a Post-Investment Management department led by Hongbo Liu (Ms Liu) was established. Ms Liu was appointed to that position in late-2018 or early-2019. The third ‘batch of bosses’ were Yong Ma, who became the CEO less than a year after Xiangyang Wang, and Dongxia Chen, who became Mr Wang’s direct boss about six-months after Guanying Li.

Mr Wang gave evidence about his visit to Australia and New Zealand together with Mr Li and Qiaosong Liu (Mr Liu). Although Mr Wang did not recall the exact dates, I am satisfied that Mr Wang’s visit occurred between around 22 and 28 October 2017.

An Australian representative office was established by CIG and its affiliates in the second half of 2017. As far as Mr Wang was aware, the collaboration concerning Sargon was the only China Taiping project in Australia that was implemented.

Mr Wang was appointed a director of Sargon in May 2018. He continued in that role until 3 March 2020.

The evidence was unclear about whether Mr Wang was part of a Taiping delegation that visited Australia between 30 July and 2 August 2019. In the second half of 2019, Mr Wang handed the project relating to Sargon to Ms Liu. Later, Mr Wang was informed that he would ‘not be allowed’ to participate further in the project. His evidence, which I accept, was that he ‘did not know anything about’ the appointment of receivers to Sargon (which occurred on 29 January 2020).

Mr Wang was cross-examined concerning the whereabouts of Mr Li who, for most of the relevant period, was the CEO of Taiping and Mr Wang’s manager. Mr Li was present at the meeting in Auckland on 25 October 2017 at which Mr Kingston alleges representations were made. Mr Li was not called as a witness. Mr Wang said he was uncertain whether Mr Li was still with Taiping. They had not been in communication recently. Mr Wang said that he had been in Hong Kong because of the COVID-19 pandemic, and Mr Li was ‘always in China’, but Mr Wang did not know where.

Other current and former employees of Taiping who feature in this dispute are:

(a) Wang Bin, the Chairman of China Taiping (not a witness), who had responsibility for the overall strategy of China Taiping;

(b) Heqian Wang, Taiping’s CFO (not a witness);

(c) Qiaosong Liu, a General Manager at Taiping (not a witness). Mr Liu attended the dinner in Auckland on 25 October 2017 at which Mr Kingston alleges representations were made;

(d) Ke Guo, a Deputy General Manager at Taiping Assets Management. Mr Guo gave evidence during the trial remotely from the Hong Kong SAR with the assistance of an interpreter; and

(e) Ming Zhong, a Manager in Taiping’s Finance department. Ms Zhong gave evidence during the trial remotely from the Hong Kong SAR with the assistance of an interpreter.

C2. Mr Kingston

Mr Kingston holds a Bachelor of Science and a Bachelor of Commerce from the University of Melbourne (2009) (majoring in Actuarial Studies and Applied Mathematics), a Graduate Certificate in Psychoanalytic Studies from Deakin University, a Graduate Certificate in Social Entrepreneurship and Innovation from the University of Adelaide, and a Certificate in Company Directorship from the Australian Institute of Company Directors obtained in around 2010.

Mr Kingston has founded several businesses in the superannuation and technology sector of the economy. In October 2015, he and Dr D’Souza co-founded Sargon, an Australian company. Mr Kingston’s evidence is that they established Sargon to develop and deploy software targeted to the superannuation market. He described Sargon’s initial goal as being ‘to provide financial institutions and entrepreneurs with the technology and infrastructure to build, grow and operate investment and pension funds at the lowest possible cost for investors’. Whatever the initial goal, by the end of 2019, as a result of a series of acquisitions of other businesses, Sargon had more than AUD50bn in assets under trusteeship.

Mr Kingston was the CEO of Sargon from around 2017 to 2020. In cross-examination, Mr Kingston accepted that between 2017 and 2019 he regarded himself as an experienced and diligent businessman.

As the CEO of Sargon, Mr Kingston was personally involved in negotiating the terms of acquisitions of businesses by Sargon. Those acquisitions included the 2018 acquisition of the Australian Executor Trustees – Corporate Trust at a cost of AUD50m, a business with over AUD30bn funds under supervision. Mr Kingston’s personal involvement in acquisitions sometimes included him personally preparing terms sheets. In 2018-2019, he was involved in the preparation of the Sargon prospectus. His role in relation to the prospectus was to brief advisors and to provide instructions as to factual matters.

Mr Kingston is the founder of Trimantium Capital, a company incorporated in Australia on 19 January 2012 which he described as having two functions:

(a) assisting clients in identifying board members, executives and management, and potential investment partners; and

(b) establishing and managing special purpose vehicles to facilitate investment into its portfolio companies (being companies in which Trimantium Capital either invested or to which it had previously provided advisory services but which required further investment).

Mr Kingston has a substantial shareholding in Trimantium Capital, of which he remains a director. Trimantium Capital was an investor in GrowthOps. Trimantium Capital and its associated entities held significant investment positions in GrowthOps. In cross-examination, Mr Kingston quibbled with the meaning of ‘significant’, but that is his language.

The financing arm of Trimantium Capital invested through special purpose vehicles (‘SPVs’) which advanced funds by way of debt, equity, or both. Three of these entities relevant to the proceeding are:

(a) TCFM, incorporated in Australia on 14 October 2014;

(b) TTIM (subsequently renamed Trimantium Investment Management Pty Ltd), incorporated in Australia on 29 January 2018; and

(c) Trimantium HK, based in Hong Kong.

Mr Kingston was also a director and, indirectly through Trimantium Capital, a shareholder of GrowthOps. GrowthOps was listed on the Australian Securities Exchange between March 2018 and December 2020. In its prospectus, issued prior to its Initial Public Offering (‘IPO’), GrowthOps’ business is described as focusing on management consulting, technology services and advertising and creative services.

The Trimantium website for which Mr Kingston is responsible states that 2013 was the year when Mr Kingston founded GrowthOps ‘which is now one of the largest professional services firms in all of Asia … with over 600 staff members, and it generates approximately $80 million annually’. The website refers to Sargon having AUD50bn in assets before it was sold to private equity. It was put to Mr Kingston that that was not a correct statement because Sargon did not have AUD50bn in assets. Mr Kingston’s response was illuminating. He said he did not see it as a material omission that the reference was not qualified by referring to AUD50bn in assets under trusteeship.

Mr Kingston also has a personal web page. On that web page he describes himself as ‘entrepreneur and engineer’. The information on that website and on the Trimantium website has not been updated for some time. Mr Kingston said that it was preferable that people know of his association with profitable and prosperous companies. That evidence was consistent with Mr Kingston’s confidence and self-belief when giving evidence, notwithstanding the failure of GrowthOps after it was listed.

A number of SPVs were incorporated during the course of Mr Kingston’s dealings with CIG, including:

(a) Trimantium International Holdings, incorporated on 27 November 2017 in Australia, whose sole shareholder at that time was Trimantium HK;

(b) Asia Selangor, incorporated in Australia on 11 January 2018;

(c) Forci (subsequently renamed TGO Holdings 2 Pty Ltd), incorporated in Australia on 20 January 2018; and

(d) Pattani, incorporated in Australia on 9 January 2018.

Shares in GrowthOps held by Trimantium International Holdings, Asia Selangor, Forci and Pattani were provided as security for SA3 and SA4 (and, in the case of Asia Selangor, as security for SA2). Certain matters concerning directorships and share purchases by those corporations may be noted:

(a) On incorporation on 27 November 2017, Mr Kingston was the sole director of Trimantium International Holdings. On 19 January 2018, Mr Kingston was replaced as the sole director by Dr D’Souza. On 21 January 2018, Trimantium International Holdings applied for shares in GrowthOps. On 16 March 2018, 7,945,570 ordinary shares in GrowthOps were issued to Trimantium International Holdings.

(b) On incorporation on 11 January 2018, the director of Asia Selangor was Vonny Tjhin. On 19 January 2018, Asia Selangor applied for shares in GrowthOps. On 16 March 2018, 20m ordinary shares in GrowthOps were issued to Asia Selangor. In cross-examination, Mr Kingston accepted that he asked Ms Tjhin to provide the shares that Asia Selangor held in GrowthOps as collateral for the SA2 loan. He said that if Asia Selangor’s GrowthOps shares were ever required to repay the loan (such shares being part of the security), Ms Tjhin would make sure the shares would be ‘swept’.

(c) On incorporation on 20 January 2018, the sole director of Forci was Maria Di Vincenzo, who, at that time, was 80 years of age. Ms Di Vincenzo is Mr Kingston’s wife’s grandmother. She was born in Forci, Italy, after which the company was named. Mr Kingston organised for the incorporation of Forci. On the day of its incorporation, Forci applied for AUD17m of shares in the GrowthOps IPO. Mr Kingston gave evidence that the director of Forci understood that the shares held by Forci would be required if the loan from CIG was required to be repaid. On 5 February 2018, Ms Di Vincenzo ceased to be a director. She was replaced as the sole director by Akshita Lad on 5 February 2018, who was in turn replaced as the sole director on 16 February 2018 by Nattiya Pothong. On 16 March 2018, 17m ordinary shares in GrowthOps were issued to Forci.

(d) On incorporation on 9 January 2018, the sole director of Pattani was Thananchanok Thaicharoen, a person with whom Mr Kingston had some investments in property developments and other businesses. Mr Kingston arranged for Pattani to be incorporated. On 16 March 2018, 14m ordinary shares in GrowthOps were issued to Pattani.

Mr Kingston is a person who, both historically through his involvement in drafting terms sheets, but also in the context of contemporaneous documents relevant to this dispute, directly involved himself in drafting contractual and business documents. In cross-examination, Mr Kingston sought to walk back from the language used by him in a 24 January 2018 email to Mr Wang which began, ‘[b]efore I draft the promissory note…’, suggesting that he was using a collective ‘I’, referring to what the lawyers were going to draft. I do not accept that Mr Kingston was intending to refer to the lawyers’ drafting, rather than to his own, when he sent that email.

The first Promissory Note with Taiping Trustees (‘P Note 1’), was drafted by Mr Kingston personally. On about 1 February 2018, Mr Kingston made changes in mark-up to the Promissory Note, at that stage in draft. The draft included comments by MinterEllison and comments attributed to ‘SC’, being a reference to Sargon Capital. When first questioned concerning those embedded comments, Mr Kingston did not agree that the references to ‘SC’ were to comments made by him personally. He said that he thought those comments were made by the law firm Allens. The notes include comments such as ‘Andy, please discuss with Minter Ellison’. Questioned further, Mr Kingston persisted by saying he could not remember who wrote that comment. I do not accept that evidence as truthful. ‘Andy’ was a reference to Andy Wang. The comments on the document in mark-up attributed to ‘SC’ were comments made by Mr Kingston personally.

D. The Issues

Statements of issues were prepared by each party pursuant to s 50 of the Civil Procedure Act 2010 (Vic) (the ‘Statements’). The Statements do not displace the role of the pleadings. Whilst not entirely agreed, the Statements are of assistance in identifying the key issues for determination. They also serve by omission to identify issues within the pleadings, in particular within the Amended Defence and Counterclaim (‘ADC’), that were not pressed.

The pleadings upon which the trial was conducted comprise the Further Amended Statement of Claim dated 23 September 2021 (‘FASOC’), the ADC dated 15 February 2022 and the Reply and Defence to the ADC dated 28 February 2022 (‘Reply’).

D1. The first group of issues: Estoppel

The first group of issues in the Statements concern whether or not representations alleged in the ADC were in fact made. Mr Kingston alleges that representations were made and were relied upon by him to enter into the Loan Agreement and the Supplementary Agreements on four occasions:

(a) on 25 October 2017 at a dinner in Auckland, New Zealand;

(b) on 11 or 16 November 2017 in a conversation with Mr Wang;

(c) on 23 or 24 November 2017 in Hong Kong; and

(d) on 20 April 2018 in a telephone conversation with Mr Wang.

So far as the content of the representations is concerned, the ADC alleges that CIG made representations that Mr Kingston would not be personally liable to repay the money loaned by CIG. Alternatively, representations were made that CIG would not recover the money loaned to Mr Kingston or exercise its rights, duties or power to do so. Mr Kingston alleges that he relied on those representations in entering into the Loan Agreement and SA1-SA4 and that it would be inequitable or unconscionable for CIG to act inconsistently with the representations. Mr Kingston alleges that, as a result, CIG is estopped from contending that he is personally liable for the loan or from seeking to recover the moneys loaned from him. The ADC also alleges that, if there was an event of default, CIG’s sole recourse was to obtain all collateral if the event of default was not remedied within 20 business days.

CIG denies that the representations, or any of them, were made. It denies reliance. It denies the existence of the estoppels alleged.

D2. The second group of issues: The Money Lenders Ordinance (Hong Kong)

The second group of issues in the Statements concern the MLO. The ADC alleges that the MLO applied to each of the loans and that, due to breaches of s 18(1) and/or s 18(2) of the MLO, each of the Loan Agreement, SA1, SA2, SA3 and SA4 are unenforceable.

In the Reply, CIG denies that the MLO applies to the loans, or any of them. It alleges that pursuant to a single contract for the provision of financial accommodation (‘the Facility Agreement’) (constituted by the Loan Agreement, SA1, SA2, SA3 and SA4), it advanced money to Mr Kingston in Victoria for use in Victoria and that, as a result, the MLO has no application to the Facility Agreement. CIG alleges that, in any case, there was substantial compliance with s 18 of the MLO and that, even if s 18 applied to the Facility Agreement, it would be inequitable for the Facility Agreement to be held not to be enforceable. It alleges that, under s 18(3) of the MLO, the Court should order that the Loan Agreement is enforceable in accordance with its full terms or, alternatively, to such extent and subject to such modifications or exceptions as the Court considers equitable.

D3. The third group of issues: Interest on SA1-SA3

The third group of issues in the Statements under the heading ‘Interest on the 1^st – 3^rd tranches’ are:

(a) whether, on the proper construction of clause 7 of SA4, no interest payments fell due in respect of SA1-SA3 unless and until principal and interest on SA4 had been repaid in full;

(b) whether CIG’s conduct of which Mr Kingston complains constitutes conduct in trade or commerce in connection with financial services within the meaning of ss 12CB or 12DA of the ASIC Act;[3]
[3]CIG’s Statement of Issues only.

(c) whether, by making demands for the payment of interest in respect of SA1-SA3, CIG demanded payment of interest that was not due;

(d) whether, by making those demands, CIG engaged in conduct in relation to financial services that was misleading or deceptive or likely to mislead or deceive, in contravention of s 12DA(1) of the ASIC Act;

(e) whether, by reason of having made payments in response to demands, Mr Kingston is entitled to have those payments set off against payments of interest in respect of SA4 as and when that interest fell due for payment in priority to SA1-SA3; and

(f) if so, whether Mr Kingston was required to make any payment to CIG in respect of interest on SA4 for the period April 2019 to October 2019.

The ADC alleges that, pursuant to clause 7 of SA4, no interest was due on SA1-SA3 until principal and interest on SA4 had been repaid in full. Following entry into SA4, CIG continued to issue debit notes for interest under SA1-SA3. The ADC alleges that Mr Kingston paid amounts in response to those debit notes in the mistaken belief that the amounts were due and that, by reason of these mistaken payments, CIG was overpaid and Mr Kingston was entitled to have those amounts set off against payment of interest on SA4 as and when interest fell due. The ADC further alleges that, by issuing these invoices, CIG engaged in misleading or deceptive conduct.

CIG denies the construction of clause 7 of SA4 for which Mr Kingston contends, and denies that Mr Kingston was entitled to have the amounts paid towards interest on SA1-SA3 set off against interest in respect of SA4.

D4. The fourth group of issues: Demands for repayment

The fourth group of issues in the Statements are headed ‘Demands for repayment of the CIG loans and the P Note’. The ADC includes allegations concerning two secured Promissory Notes relating to Sargon. The first Promissory Note, P Note 1, for HKD500m was entered into on 9 February 2018 by TTIM, a company Mr Kingston alleges was incorporated to be the trust vehicle for the secured loan, and Taiping Trustees. The second Promissory Note (‘P Note 2’) was entered into on 28 April 2018 by Sargon and TTIM for HKD190m (with the consent of Taiping Trustees as the ultimate lender).

Because of the level of granularity with which the fourth group of issues are identified in the Statements, it is more convenient to reproduce the relevant paragraphs rather than to seek to summarise them. Given the similarities in the Statements, CIG’s Statement of Issues is reproduced below:

18.If the ASIC Act 2001 applies,[4] did CIG by its demands on 2 December 2019 for payment of interest of HK$7,252,036.89 on the 1st-3rd tranches and HK$7,147,120.14 on the 4th tranche, engage in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 12DA(1) of the ASIC Act 2001?
[4]The words ‘If the ASIC Act 2001 applies,’ are contended for by CIG only and do not appear in Mr Kingston’s Statement of Issues.
19.If the answer to question 17 is “no”,[5] and insofar as CIG contends that it applied the sum of HK$13,491,628.24 remitted to it by Ashurst on 13 December 2019 towards the loans, was CIG required to apply those funds towards interest outstanding on the 4^th tranche, in priority to interest on the 1^st-3^rd tranches?
[5]Question 17 is summarised in paragraph 81(f) above.
20.If the ASIC Act 2001 applies,[6] did CIG by the conduct comprising:
[6]The words ‘If the ASIC Act 2001 applies,’ are contended for by CIG only and do not appear in Mr Kingston’s Statement of Issues.
(a) the open and without prejudice letters sent to Mr Kingston on 19 December 2019; and/or
(b) Yi Kai Huang emailing Mr Kingston on 30 December 2019,

engage in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 12DA(1) of the ASIC Act 2001?
21.If the ASIC Act 2001 applies,[7] then in circumstances where, on 31 December 2019, the sum of HK$10,054,964.81 was transferred from CIG to the loan account maintained by Taiping Trustees in respect of P Note 1, by:
[7]The words ‘If the ASIC Act 2001 applies,’ are contended for by CIG only and do not appear in Mr Kingston’s Statement of Issues.
(a)Yi Kai Huang emailing Mr Kingston on 9 January 2020 and demanding payment of HK$10,286,636.22 interest on P Note 1 for the quarter October-December 2019;
(b)Taiping Trustees sending letters of demand on 20 January 2020 to each of Sargon Capital Pty Ltd, Trimantium Taiping Investment Management Pty Ltd (TTIM) and Trimantium Capital Funds Management Pty Ltd (TCFM) alleging that TTIM had committed an event of default by failing to pay interest under P Note 1 for the quarter October-December 2019,

did CIG know of or acquiescence in conduct of Taiping Trustees that was misleading or deceptive or likely to mislead or deceive in contravention of s 12DA(1) of the ASIC Act 2001?
22.If the ASIC Act 2001 applies,[8] by the conduct comprising:
[8]The words ‘If the ASIC Act 2001 applies,’ are contended for by CIG only and do not appear in Mr Kingston’s Statement of Issues.
(a)Yikai [sic] Huang emailing Mr Kingston on 9 January 2020 and demanding payment of HK$7,271,733.01 interest on the 1^st-3^rd tranches for the quarter October-December 2019, and outstanding interest of HK$907,6187.79 on the 4^th tranche; and/or
(b)sending a letter of demand on 20 January 2020 to Mr Kingston alleging that Mr Kingston had committed an event of default by failing to pay interest alleged to be outstanding on the 1^st-3^rd and 4^th tranches,

did CIG engage in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 12DA(1) of the ASIC Act 2001?
23.Was the appointment of receivers to Sargon, TTIM and TCFM by Taiping Trustees on 29 January 2020 made with the knowledge and acquiescence of CIG?
24.By a letter to Mr Kingston on 1 February 2020, did CIG:
(a)demand repayment of sums that were not due and owing under the 1^st-3^rd and 4^th tranches;
(b)knowingly acquiesce in Taiping Trustees demanding repayment of a sum that was not due and owing under P Note 1; and/or
(c)improperly exert pressure on Mr Kingston to pay sums that were not due and owing under the 1^st-3^rd and 4^th tranches, by specifying those payments as a condition of suspending the receiverships of Sargon, TTIM and TCFM?

25.If the ASIC Act 2001 applies,[9] has CIG by its own conduct, and by any knowledge of and acquiescence in Taiping Trustees’ conduct in:
[9]The words ‘If the ASIC Act 2001 applies,’ are contended for by CIG only and do not appear in Mr Kingston’s Statement of Issues.
(a)demanding payments of principal and interest under the 1^st-3^rd and 4^th tranches and P Note 1;
(b)asserting events of default in respect of the 1^st-3^rd and 4^th tranches and under P Note 1;
(c)appointing receivers to Sargon, TTIM and TCFM;
(d)exerting improper and illegitimate pressure on Mr Kingston to pay amounts of principal and interest that were not due on any of the 1^st-3^rd and 4^th tranches; and[10]
(e)commencing and continuing this proceeding,

engaged in conduct in connection with the supply of financial services which is, in all the circumstances, unconscionable, in contravention of s 12CB(1) of the ASIC Act?

[10]Item 25(d) is contended for by Mr Kingston only and does not appear in CIG’s Statement of Issues.

The FASOC alleges that:

(a) on 30 September 2019, interest in the sum of HKD7,183,561.64 fell due and payable in respect of SA1-SA3;

(b) Mr Kingston failed to pay HKD7,183,561.64 prior to 13 December 2019, on which date he paid HKD7,252,036.89;

(c) on 31 October 2019, interest in the sum of HKD7,014,684.93 fell due and payable in respect of SA4;

(d) Mr Kingston failed to pay HKD7,014,684.93 prior to 13 December 2019, on which date he paid HKD6,239,651.35;

(e) on 13 December 2019, Mr Kingston paid a total sum of HKD13,491,688.24. As set out in subparagraphs (b) and (d) above, HKD7,252,036.89 was applied to interest in respect of SA1-SA3, with the balance, HKD6,239,651.35, being applied to interest in respect of SA4; and

(f) after the 13 December 2019 payment, outstanding unpaid interest of HKD627,190.08 remained under SA4.

CIG further alleges that, on 31 December 2019, interest in the sum of HKD6,650,703.61 fell due and payable in respect of SA1-SA3 and was not paid, and that HKD627,190.08 remained due and payable in respect of the SA4 and that Mr Kingston also failed to pay that amount.

On 20 January 2020, CIG served a notice on Mr Kingston requiring the repayment of all outstanding principal and interest in the sum of HKD667,297,084.15. According to the FASOC, as at 20 January 2020,[11] the total amount owing was HKD664,900,126.57. Mr Kingston failed to pay that amount. Mr Kingston admits that he has not paid that amount, but denies that CIG was entitled to demand repayment of outstanding principal and interest on any of SA1-SA4 in the amount alleged or at all.
[11]The FASOC refers to the amount outstanding as at 20 January 2021, but this appears to be in error.

The ADC alleges that, on 11 December 2019, Mr Kingston caused a transfer of AUD4.4m to the trust account of CIG’s solicitors, Ashurst (‘Ashurst Trust Account’). It is alleged that AUD4.4m equated to the total interest outstanding from 1 July 2019 to 31 January 2020 (HKD23,561,643.84) referred to on the draft terms sheet for the early termination of P Note 1. The ADC alleges that, on or around 13 December 2019, the sum of HKD10,081,936.78 was remitted from the Ashurst Trust Account to Taiping Trustees in discharge of indebtedness owing by TTIM under P Note 1, and the sum of HKD13,491,628.24 was remitted from the Ashurst Trust Account to CIG and purportedly applied by CIG:

(a) firstly, in discharge of interest alleged to be due to 30 September 2019 on SA1-SA3 (as to HKD7,252,036.89). The ADC alleges that, pursuant to clause 7 of SA4, no interest was due on SA1-SA3 until principal and interest on SA4 had been repaid in full, and CIG was not permitted to apply this sum in discharge of interest on SA1-SA3 in priority to interest owing on SA4; and

(b) secondly, in discharge of interest alleged to be due on 31 October 2019 on SA4 (as to HKD6,239,591.35). The ADC alleges that Mr Kingston had mistakenly made payments of interest that was not yet due under SA1-SA3 and was entitled to have those amounts set off against interest due under SA4. The ADC alleges that, as a result, as at 31 October 2019, Mr Kingston was not required to make any further payment of interest on SA4, alternatively, that the sum remitted from the Ashurst Trust Account to CIG was more than sufficient to discharge the amount demanded by CIG in respect of SA4.

The ADC therefore alleges, in substance, that there was no default or, alternatively, that the transfer of AUD4.4m to the Ashurst Trust Account on 13 December 2019 meant that, from 13 December 2019, there was no default.

Separately, the ADC alleges that, on various occasions from December 2018 until February 2020 (receivers having been appointed to Sargon, TTIM and TCFM on 29 January 2020), demands for payment of interest were made of Mr Kingston, and allegations were made by CIG that Mr Kingston had committed an event or events of default and/or that it was entitled to demand immediate repayment of principal, which amounted to misleading or deceptive conduct in contravention of s 12DA(1) of the ASIC Act. The ADC further alleges that by, amongst other things, demanding payment of principal and interest, CIG engaged in unconscionable conduct in contravention of s 12CB(1) of the ASIC Act.

D5. Other issues

Paragraph 22.1 of the ADC raised a separate set off defence – namely, that if Mr Kingston is indebted to CIG (which he denies) he is entitled to set off any amount that CIG has realised from the enforcement of any securities provided under SA1-SA4. No evidence was adduced and no submissions were made in support of that claim. It is unnecessary to discuss it further.

By his counterclaim, Mr Kingston seeks an order declaring that the Loan Agreement and SA1-SA4 are void, an order refusing to enforce the Loan Agreement and SA1-SA4 and such other order(s) as the Court thinks appropriate.

CIG denies the allegations in the ADC and alleges in the alternative that if, for any reason, the Facility Agreement is unenforceable or void, which is denied, then Mr Kingston has been unjustly enriched by the receipt of the HKD653m advanced under the Facility Agreement.[12] Further, that the moneys advanced by CIG are moneys had and received by Mr Kingston to the use of CIG. Those allegations are denied by Mr Kingston.
[12]The FASOC alleges in the alternative that the net enrichment, after taking into account interest payments, is HKD593,032,222.46.

Before leaving the topic of the issues for determination, it is important to refer to a proposition to which much attention was directed by Mr Kingston at trial. Namely, that the HKD653m loans and the securities taken in support of those loans were part of a strategy by China Taiping to secure a foothold; to use its security position to take ownership of or control in an established superannuation platform in Australia, and thereby, to implement its internationalisation strategy. In final submissions, it was made explicit by leading counsel for Mr Kingston that matters relating to the alleged strategy were relied upon as context only. It was accepted that the strategy alleged did not assist Mr Kingston’s misrepresentation case or his case concerning construction of the agreements.

E.The Chronology

The dealings between the parties began in early 2017 and ended shortly after the appointment by Taiping Trustees of receivers to Sargon, TCFM and TTIM on 29 January 2020. It is helpful to consider the alleged misrepresentations upon which Mr Kingston relies, which form part of the first group of issues and which were the focal point at the trial, in the chronological context of those dealings. That is not the case with the second group of issues, which concern the MLO. Although it is convenient to refer to many of the facts and events relevant to the third and fourth groups of issues as part of the chronology, the determination of those issues is also better dealt with outside the sequence of facts and events that took place during the business relationship between the parties.

E1. Initial dealings: May-November 2017

Beginning with what is now agreed to be relevant to context only, the ADC alleges that, between May and November 2017, discussions took place between Mr Wang and Mr Li on behalf of China Taiping and Mr Kingston about the prospect of China Taiping entering into a ‘partnership and co-operation arrangement’ with Sargon, to be known as ‘Trimantium Taiping’.

Mr Kingston was introduced to Mr Wang and Mr Li in May 2017. They met in Hong Kong. At that time, Sargon was intending to purchase a New Zealand company, Complectus Ltd (‘Complectus’). Sargon was seeking to finance the acquisition.

On 25 May 2017, Mr Kingston sent documents to Mr Wang expressing his preference ‘to keep things as simple as possible and then build the relationship from there’, a reference to a loan from China Taiping to be secured over Complectus. When cross-examined, Mr Kingston denied that he had a preference for this loan option. I do not accept the truth of his denial. It is contradicted by the contemporaneous document of which Mr Kingston is the author.

On 14 July 2017, Mr Kingston sent an email to Mr Wang titled ‘Sargon – China Taiping – Collaboration Chart’ attaching a chart titled ‘Sargon – China Taiping – Collaborations’ headed ‘Sargon – Enterprise value through partnership’ seeking to show the benefits to China Taiping of a business relationship with Sargon.

Between 20 and 24 July 2017, there was an email exchange between Mr Kingston and Mr Wang in relation to a potential loan to Sargon to fund the Complectus acquisition.

On 31 July 2017, Mr Kingston and Mr Wang met at a coffee shop in Lee Garden, Hong Kong. Mr Wang gave evidence that because he did not have his own office, if meeting rooms were booked up, he would go to the coffee shop to meet clients.

Although Mr Wang had no recollection of the meeting, I accept that the meeting took place. It was followed by an email from Mr Kingston on 1 August 2017 which began by Mr Kingston asserting his ‘understanding’ that it was ‘desirable for Sargon to retain a division of China Taiping … to provide Asset Advisory, Consulting and Management Services (Investment Services) to Sargon’s expanding global pension and other managed fund asset base’.

In the second half of 2017, Mr Wang communicated regularly with Mr Kingston at in-person meetings, over the telephone, using WeChat, and by email.

In August 2017, Taiping prepared a document titled ‘Main Terms on the Private Placement Bonds Project of Sargon Capital’ concerning the proposed acquisition of Complectus by Sargon. That document outlined a proposal that Sargon issue bonds for USD79m (about AUD100m) for three years at an interest rate of 6.8%, with the bondholder being Taiping Trustees on behalf of clients of China Taiping. The collateral was to be 100% equity in Complectus. The document referred to ‘Taiping Asset Management’ charging an annual investment advisory fee of USD1m to provide advice to Sargon on Assets Under Management, Trust and Supervision (AUMTS), the relevant AUMTS amount in the first year to be not less than USD10bn.

Mr Wang and Mr Kingston negotiated a draft terms sheet for the financing of the Complectus acquisition. On 9 August 2017, Mr Kingston sent an email to Mr Wang. In response to a question which asked, ’Can you / Trimantium give personal guarantee on this?’, Mr Kingston replied:

Potentially - but the economics of the transaction would need to be quite different as it drastically reduces your risk and increases mine. Other insurance partners we are speaking to are not looking for this, so this would probably exclude Taiping from the next stage.

In re-examination, Mr Kingston said that, after his 9 August 2017 email relating to a personal guarantee, no-one from China Taiping ever asked him to provide such a guarantee. While there was no request of Mr Kingston for the provision of a personal guarantee, the question of a guarantee of the proposed facility to fund the Complectus acquisition was explored after 9 August 2017 between China Taiping, Mr Kingston and Mr Kingston’s lawyers.

On 22 August 2017, Mr Kingston sent a draft terms sheet prepared on behalf of Sargon by its lawyers, Linklaters, to Mr Wang. The draft said that Sargon’s shareholders would not be guarantors and would ‘only be a party to the finance documents purely as third party security providers on a limited recourse basis’. On 29 August 2017, Mr Wang returned the draft with some initial comments for discussion, including that, if the Borrower is a ‘Bidco’, a wholly owned SPV subsidiary of Sargon, Sargon will be the guarantor on the facility. On 31 August 2017, Linklaters sent an email to Mr Kingston identifying ‘headline issues’ with the amended draft, noting that ‘even if we interpose an SPV – they have commented “Sargon to be a guarantor no matter what”’.

Ultimately, Sargon did not acquire Complectus, the proposed bond placement did not go ahead, and no guarantee was provided.

On 28 September 2017, there was a public announcement of a ‘strategic partnership agreement’ between Taiping and Sargon. The announcement stated that Taiping, a ‘subsidiary of China Taiping Insurance Group’, will be entrusted by Sargon to manage its AUD3bn assets and provide investment consulting and asset allocation support for its expansion of its investment business in Asia and that this cooperation has effectively increased the scale of Taiping’s asset management and is an important breakthrough for Taiping in managing overseas assets.

Section 12GBCL of the ASIC Act is relevant to CIG’s alleged acquiescence in and knowledge of actions said to have been engaged in by Taiping Trustees. That section relevantly provides:

A person who:
…
(b) is involved in a contravention of a civil penalty provision;
is taken to have contravened the provision.

Section 5(2)(b) of the ASIC Act provides that, unless the contrary intention appears, an expression that is used but not defined in the ASIC Act has the same meaning as in the Corporations Act 2001 (Cth) (‘Corporations Act’). Section 5(2)(b) has the effect that the expression ‘involved in a contravention’ used in s 79 of the Corporations Act has the same meaning for the purposes of the ASIC Act.[56] In this case, the ‘involvement’ of CIG is relevantly framed in the ADC as acquiescing or knowingly being involved in the contravening conduct of Taiping Trustees.
[56]Australian Securities and Investments Commission v M101 Nominees Pty Ltd (No 3) [2021] FCA 354; (2021) 153 ACSR 230, [391] (overturned on appeal on unrelated grounds, Mawhinney v Australian Securities and Investments Commission [2022] FCAFC 159; (2022) 405 ALR 292).

Section 12GM of the ASIC Act is relevant to the relief claimed by Mr Kingston. It is unnecessary to reproduce its terms.

I4. The submissions concerning unconscionable conduct

Mr Kingston provided written and oral submissions in support of the statutory unconscionability allegation. He submitted that the CIG loans are ‘financial products’, defined in s 12BAA(7)(k) of the ASIC Act to include credit facilities, and ‘financial services’ as defined in s 12BAB of the ASIC Act.

Mr Kingston’s submissions include that, in determining whether as a supplier of financial services CIG has engaged in unconscionable conduct, the Court must consider the impugned conduct ‘in all the circumstances’ and must undertake a close consideration of the facts.[57] He submitted that the Court must exercise an evaluative judgment whether CIG has conformed to the normative values and standards of conduct in the supply of financial services in Australia that s 12CB enacts.[58] Further, that the Court is not confined by the equitable limits of unconscionable conduct, such as the requirement that the claimant be afflicted by a special disadvantage.[59] The Court may consider both the terms of the contract and the manner in which it is carried out, in addition to the circumstances relating to formation of the contract.[60]
[57]Relying on ASIC Act, s 12CB(1); Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 399 ALR 409, [57] (Gordon J); Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liq) (No 3) [2020] FCA 208; (2020) 275 FCR 57, [362] (Beach J).
[58]Relying on Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liq) (No 3) [2020] FCA 208; (2020) 275 FCR 57, [364]-[369] (Beach J).
[59]Relying on ASIC Act, s 12CB(4)(a); Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1, [295]; (Edelman J); Australian Securities and Investments Commission v AGM Markets Pty Ltd (in liq) (No 3) [2020] FCA 208; (2020) 275 FCR 57, [365], [377], [458] (Beach J); Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40; (2021) 285 FCR 133, [78] (Allsop CJ, Besanko and McKerracher JJ).
[60]Relying on ASIC Act, s 12CB(4)(c).

Mr Kingston submitted that a mortgagee who acts otherwise than in good faith in relation to the security, and in so doing prevents the primary obligor from discharging its secured obligation, may be held to have acted unconscionably in contravention of s 12CB of the ASIC Act.[61] A security-holder who misconducts itself in relation to the security should fall foul of the statutory prohibition in s 12CB of the ASIC Act because, in equity, a mortgagee’s duty with respect to the security is to act ‘conscionably’.[62]
[61]Relying on Saafin Constructions Pty Ltd (in liq) v MAG Financial and Investment Ventures Pty Ltd [2021] VSC 489, [428]-[445] (Riordan J).
[62]Relying on Pendlebury v Colonial Mutual Life Assurance Society Ltd [1912] HCA 9; (1912) 13 CLR 676, 702-703, (Isaacs J). See, e.g., MBF Investments Pty Ltd v Nolan [2011] VSCA 114; (2011) 37 VR 116, [82]-[84] (Neave, Redlich and Weinberg JJA); Ultimate Property Group Pty Ltd v Lord [2004] NSWSC 114; (2004) 60 NSWLR 646, [38] (Young CJ in Eq). See also Barns v Queensland National Bank Ltd [1906] HCA 26; (1906) 3 CLR 925, 943 (Griffith CJ, Barton and O’Connor JJ).

It was submitted that the effect of Taiping Trustees’ appointment of receivers to Sargon (and TCFM and TTIM) had on Mr Kingston personally, and on any realistic possibility of the CIG loans being repaid, was that Mr Kingston had ‘no real chance whatever to save a plank from the wreck’.[63]
[63]Quoting Pendlebury v Colonial Mutual Life Assurance Society Ltd [1912] HCA 9; (1912) 13 CLR 676, 702 (Isaacs J).

Mr Kingston submitted that the unconscionable character of CIG’s conduct falls to be assessed in circumstances which include that:

(c)CIG’s and China Taiping’s true purpose in advancing the CIG loans and the Promissory Notes was to realise substantial and strategic equity holdings in Sargon and/or GrowthOps, upon the expiry or termination of those facilities:
…
(e)from around October 2019, once they learned of the delay to Sargon’s planned IPO, CIG and Taiping Trustees together resolved to terminate the CIG loans and the Promissory Notes …
(f)on 31 December 2019 and 6 January 2020, at the direction of China Taiping’s Risk Management and Compliance Department, CIG transferred HK$10.082m to Taiping Trustees, which Taiping Trustees applied in discharge of interest owing on the P Note to 31 December 2019…

Mr Kingston submitted that the misconduct of Taiping Trustees, in which CIG acquiesced, comprises the following acts – none of which is denied by CIG:

(a)after the HK$10.082m was transferred to and applied by Taiping Trustees, Taiping Trustees wrongfully made repeated further demands that interest for the quarter to December 2019 remained outstanding on P Note 1…;
(b)by proceeding then to appoint receivers to Sargon, Taiping Trustees wrongly impaired both Kingston’s financial and professional investments in Sargon and CIG’s security interests in the shares of Sargon, which made up the overwhelming majority of the valuable collateral from which the parties had always intended that CIG loans would be repaid; and
(c)CIG and Taiping Trustees jointly attempted to use the wrongful appointment of receivers to Sargon to exert improper and illegitimate pressure on Kingston to pay amounts of interest that were not due on the P Note and, on the proper construction of SA 4, were not due on either of the CIG loans…

Mr Kingston submitted that it is clear – including from the instruction that originated from China Taiping’s Risk Management and Compliance Department about the transfer and application of the HKD10.082m, but also as early as the structure chart that Mr Kingston prepared following his discussions with Mr Li and Mr Wang in October 2017 – that China Taiping regarded the personal loans and P Note 1 as part of a single overall investment in Sargon. CIG and Taiping Trustees had taken overlapping security over multiple parcels of Sargon shares.[64] That fact had become apparent to China Taiping by late 2019. CIG took security over shares in Sargon that were beneficially owned by Taiping Trustees, through the Trimantium Taiping Investment Fund. From August 2019, China Taiping was aware that the prospects of both facilities being repaid ‘mostly depended’ on whether Sargon’s IPO could be achieved. Thereafter, China Taiping sought to mitigate its risk by attempting to syndicate P Note 1, and by attempting to reach terms with Mr Kingston and Sargon for early repayment of both facilities.
[64]Mr Kingston submits that, in particular:
(i)the 475,000 preference shares owned by TCFM, which were pledged to CIG as “Share 2” under SA 3, and over which Taiping Trustees took security, pursuant to the TCFM General Security Deed, cl 2.1(a); and
(ii)the 171,000 preference shares owned by Dragon Shield Holdings Pty Ltd, all of the shares in which were pledged to CIG as “Stock E” and “Stock H” under SA 4, and which Taiping Trustees both beneficially owned (by reason of its ownership of 100 class A units in the Trimantium Taiping Investment Fund: admitted at Reply, [3.21.4]) and took security over, pursuant to the TTIM General Security Deed, cl 2.1(a).

Mr Kingston submitted that, as late as 3 December 2019, China Taiping’s group leadership instructed the Risk Management Department that it should ‘continue to promote the listing of Sargon Company with Mr Kingston’. When Mr Kingston called Mr Wang on 2 December 2019 immediately after receiving the letters of demand from Ashurst, Mr Wang told Mr Kingston to focus on paying P Note 1. At that time, and through January 2020, Sargon remained in discussion with other potential investors to carry out a pre-IPO refinance in order to facilitate early repayment of P Note 1 – and continued to update China Taiping about those discussions. However, at some point between 3 December 2019 and 29 January 2020, a decision was made within China Taiping no longer to promote Sargon’s IPO, but instead to appoint receivers.

Mr Kingston submitted that CIG’s only witness of fact, Mr Wang, was not involved in or aware of the decision by Taiping Trustees to appoint receivers. He submitted that CIG proffered no evidence or explanation how the appointment of receivers was justified or in good faith, with respect to the shareholdings in Sargon that had been pledged as security for the personal loans and/or P Note 1.

Mr Kingston submitted the only available inference is that Mr Huang made the demand of 9 January 2020, and that CIG and Taiping Trustees instructed Ashurst to send the demands of 20 January 2020, knowing that interest had in fact been paid on P Note 1 for the 4^th quarter. In the circumstances, the Court should conclude that that conduct, and the consequential appointment of receivers on 29 January 2020, was unconscionable within the meaning of s 12CB of the ASIC Act.

In addition to the demands of 9 and 20 January 2020 having been sent jointly on behalf of CIG and Taiping Trustees, CIG’s knowledge of and acquiescence in the appointment of receivers is said to have been underscored by Ashurst’s letter of 1 February 2020, sent on behalf of Taiping Trustees and CIG, which offered to suspend the receivership for a period of 10 days, on condition that Mr Kingston pay amounts allegedly outstanding under the personal loans, in addition to TTIM paying HKD10,286,636.22 on account of interest on P Note 1 for the 4^th quarter of 2019.

Mr Kingston submitted that CIG cannot dissociate itself from Taiping Trustees’ wrongful appointment of receivers to Sargon, merely because the appointment was made ‘pursuant to a power conferred in the P Notes’. CIG’s participation in the making of the wrongful demands of 9 and 20 January and the further letter of 1 February 2020, together with its acquiescence in the receivers’ appointment, is conduct that CIG engaged in ‘in connection with’ the financial services it supplied to Mr Kingston, namely the personal loans. He submitted that connection exists, not least, by reason of the fact that the Sargon shares comprised the lion’s share of the securities against which the personal loans were advanced. Alternatively, by having been involved[65] in Taiping Trustees’ unconscionable conduct in contravention of s 12CB(1), CIG is itself taken to have contravened s 12CB(1): s 12GBCL. By either route, CIG is liable to relief under s 12GM of the ASIC Act.
[65]Mr Kingston submitted that a person is involved in a contravention, inter alia, if it has been in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the contravention: Corporations Act, s 79(c), as applied by ASIC Act, s 5(2)(b): see, eg, Australian Securities and Investments Commission v M101 Nominees Pty Ltd (No 3) [2021] FCA 354; (2021) 153 ACSR 230, 320 [391].

Mr Kingston submitted that, given the seriousness of the unconscionable conduct, and the severity of the harm that CIG’s conduct has visited upon Mr Kingston, the appropriate remedy under s 12GM(1) of the ASIC Act is for the Court to declare the Loan Agreement and each Supplementary Agreement to be void or, alternatively, to make an order refusing to enforce them.

In response, CIG made the following submissions in writing concerning the unconscionability claim:

29.Mr Kingston complains of the appointment of receivers. It must be steadily borne in mind that the appointment was not made by CIG, but by Taiping Trustees, which is not a party to this proceeding.
30.Mr Kingston’s pleaded defence criticises the appointment by Taiping Trustees as allegedly impairing the value of Sargon shares standing as security for CIG’s loans, but does not allege that Taiping Trustees lacked any right to appoint receivers. No doubt for this reason, and also because Mr Kingston has never joined Taiping Trustees as a party to his counterclaim, the validity of the appointment of receivers has never been explored in the evidence.
31.At its highest, Mr Kingston’s case is that money was not outstanding under Promissory Note 1 at the time of Taiping Trustees’ appointment of receivers. Even if that were true (it is not), it does not follow that the appointment was invalid. Absent evidence and inquiry from which the Court could conclude that the appointment of receivers by Taiping Trustees was invalid, the Court cannot conclude that it involved any wrongdoing on the part of CIG.
32.… Mr Kingston refers to a number of authorities on the duty of a mortgagee to act in good faith, that is, conscionably towards the mortgagor, in exercising the power of sale. Points that distinguish these authorities from the current case include:
(a)They each concern enforcement actions by a mortgagee, whereas this case concerns a claim for debt by CIG, which did not appoint any receivers;
(b)They each concern the manner in which security was enforced, rather than the fact that enforcement action was taken. None of them addressed the question of whether an appointment of receivers by a secured creditor was a breach of a mortgagee’s duty of good faith.

33.None of these authorities, and none of the points sought to be made in the Defendant’s Outline Closing Submission …, bear on the conduct or the rights of CIG.

CIG and Mr Kingston also made oral submissions concerning the unconscionability claim.

I5. Statutory unconscionable conduct: The principles to be applied

As expressly stated in s 12CB(4)(a) of the ASIC Act, the intention of the Parliament is that the prohibition against unconscionable conduct in s 12CB(1) is not limited by the unwritten law relating to unconscionable conduct.

In Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd (‘Quantum Housing Group’),[66] Allsop CJ, Besanko and McKerracher JJ undertook a detailed analysis of the various judgments of the members of the High Court in Australian Securities and Investments Commission v Kobelt (‘Kobelt’).[67] Having done so, their Honours rejected the proposition that the ratio or seriously considered dicta in Kobelt (other than Keane J) ‘requires in any case that for conduct to be unconscionable by reference to ss 12CB and 12CC of the ASIC Act (or ss 21 and 22 of the ACL) there must be found some form of pre-existing disability, vulnerability or disadvantage of which advantage was taken’.[68] In considering the unconscionability allegations in the ADC, I proceed on that basis.
[66][2021] FCAFC 40; (2021) 285 FCR 133.
[67][2019] HCA 18; (2019) 267 CLR 1.
[68]Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40; (2021) 285 FCR 133, 152 [78].

In Kobelt, Gageler J identified the function of a court exercising jurisdiction under s 12CB:

The correct perspective is that s 12CB operates to prescribe a normative standard of conduct which the section itself marks out and makes applicable in connection with the supply or possible supply of financial services. The function of a court exercising jurisdiction in a matter arising under the section is to recognise and administer that normative standard of conduct. The court needs to administer that standard in the totality of the circumstances taking account of each of the considerations identified in s 12CC if and to the extent that those considerations are applicable in the circumstances.[69]

[69]Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1, 38 [87].

In Quantum Housing Group, the Full Federal Court described the judicial task as follows:

[A]n evaluation of the impugned conduct to assess whether it is to be characterised as a sufficient departure from the norms of acceptable commercial behaviour as to be against conscience or to offend conscience and so be characterised as unconscionable.[70]

[70]Australian Competition and Consumer Commission v Quantum Housing Group Pty Ltd [2021] FCAFC 40; (2021) 285 FCR 133, 156 [92] (Allsop CJ, Besanko and McKerracher JJ).

Recently, in Smash Enterprises Pty Ltd v Euromark Ltd,[71] the Victorian Court of Appeal endorsed earlier statements of the Full Federal Court describing the normative standard of business conscience:[72]

In ACCC v Quantum Housing, the joint judgment of Allsop CJ, Besanko and McKerracher JJ speaks of ‘the language of business morality’ underlying the statutory prohibition on unconscionable conduct in these terms:
Predation on vulnerability, taking advantage of disability or disadvantage and victimisation may be found in business, as in other fields of human life. Such behaviour does not, however, exhaust the meaning of against conscience. The kinds of consideration in s 22 and the kinds of circumstance to which the Chief Justice referred in Paciocco 236 FCR 199 at [296]–[298] are apt to inform evaluations about business standards that the courts are required by Parliament to make. They may be contestable judgments; they may be by reference to a standard that is not definable; but they are evaluative judgments that Parliament commands be made. That they are the subject of a civil penalty requires that the boundary of impugned conduct be reasonably known to the subject. This last factor reinforces the proposition that it is no light matter, indeed it is a serious matter, to have one’s conduct impugned as against or as offending conscience. Business people understand such things, as do ordinary people. They need no definition to assist them. ‘Unconscionable’ is the language of business morality and unconscionable conduct is referable to considerations expressed and recognised by the statute. The word is not limited to one kind of conduct that is against or offends conscience. Surely to predate on vulnerable consumers or small business people is unconscionable. But why is it not also unconscionable to act in a way that is systematically dishonest, entirely in bad faith in undermining a bargain, involving misrepresentation, commercial bullying or pressure and sharp practice, using a superior bargaining position, behaving contrary to an industry code, using significant market power in a way to extract an undisclosed benefit that will harm others who are commercially related to the counterparty? The proposition that such conduct (not all of which might be seen to be present here) is not unconscionable by an Australian statutory business standard of conscience because the counterparty to the business transaction suffered from no relevant pre-existing disadvantage, disability or vulnerability (other than, perhaps, having a decent degree of trust and faith in its business counterparty’s honesty and good faith) is difficult to accept, unless one posits a narrow defined meaning of ‘unconscionable’ that remains hinged in some way to the structural form of the equitable doctrine as expressed in cases such as Kakavas 250 CLR 392 at [161]. The history, text and structure of the Act is contrary to such a conclusion. It is not to be derived from the meaning of the word ‘unconscionable’.

[71][2022] VSCA 267 (Niall, Sifris and Macaulay JJA).

[72]Smash Enterprises Pty Ltd v Euromark Ltd [2022] VSCA 267, [158] (Niall, Sifris and Macaulay JJA) (citations omitted).

In Paciocco v Australia and New Zealand Banking Group Ltd (‘Paciocco’),[73] Allsop CJ said:

The evaluation includes a recognition of the deep and abiding requirement of honesty in behaviour; a rejection of trickery or sharp practice; fairness when dealing with consumers; the central importance of the faithful performance of bargains and promises freely made; the protection of those whose vulnerability as to the protection of their own interests places them in a position that calls for a just legal system to respond for their protection, especially from those who would victimise, predate or take advantage; a recognition that inequality of bargaining power can (but not always) be used in a way that is contrary to fair dealing or conscience; the importance of a reasonable degree of certainty in commercial transactions; the reversibility of enrichments unjustly received; the importance of behaviour in a business and consumer context that exhibits good faith and fair dealing; ...[74]

[73][2015] FCAFC 50; (2015) 236 FCR 199.

[74]Ibid, 274-75 [296] (Besanko J agreeing at 289 [371], Middleton J agreeing at 295 [398]. This passage was cited with approval by Kiefel CJ and Bell J in Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1, 17 [14].

An allegation of unconscionability is a serious allegation. It is sufficient to warrant censure for the purpose of deference of a civil penalty. As stated by the Full Federal Court in Unique International College Pty Ltd v Australian Competition and Consumer Commission:[75]

To behave unconscionably should be seen, as part of its essential conception, as serious … irreconcilable with what is right or reasonable … . It is a serious conclusion to be drawn about the conduct of a businessperson or enterprise. It is a conclusion that does the subject of the evaluation no credit. This is because he, she or it has, in a human sense, acted against conscience.[76]

I6. Did CIG engage in unconscionable conduct?

[75][2018] FCAFC 155; (2018) 266 FCR 631.

[76]Ibid, 667 [155] (Allsop CJ, Middleton and Mortimer JJ).

For the reasons earlier stated, CIG did not engage in unconscionable conduct as particularised in paragraphs one to five inclusive of paragraph 21.4 of the ADC.

The starting point concerning the allegedly unconscionable conduct claim particularised in paragraphs seven to nine inclusive of paragraph 21.4 of the ADC is that the allegations each concern conduct allegedly engaged in by Taiping Trustees of which CIG is alleged to have had knowledge or to have acquiesced in. Taiping Trustees is not a party to the proceeding. The Court cannot make any findings about unconscionable conduct on the part of Taiping Trustees because it is a separate entity and is not a party to the proceeding.

The claim against CIG is for ‘involvement’ in the unconscionable conduct of Taiping Trustees. As there can be no finding made concerning the primary conduct alleged, it is not open to make a finding of involvement on the part of CIG. The unconscionable conduct claim fails in its entirety.

In any case, assuming it were open and appropriate to make findings concerning alleged contraventions on the part of Taiping Trustees, which is not the case, the evidence does not support the making of such a finding. A necessary factual plank is that, at the time Taiping Trustees appointed receivers to Sargon, TTIM and TCFM, there was no default in relation to P Note 1. The first potential factual premise for that assertion is that the AUD4.4m transferred to the Ashurst Trust Account was to be applied to P Note 1. I have found that is not the case. The alternate argument is that, by reason of the later transfer of money to Taiping Trustees, there was no default under P Note 1. The fact that transfers as admitted by CIG on the pleadings occurred within China Taiping does not establish that there was no default in relation to P Note 1 at the time the receivers were appointed.

Mr Kingston’s alternative argument relied on the following transfers of money:

(a)on 13 December 2019, HKD10,082,191.78 was transferred from Ashurst to Taiping Trustees and HKD13,491,628.24 was transferred by Ashurst to CIG;
(b)on 31 December 2019, HKD10,054,644.81 was transferred from CIG to Taiping Trustees. That amount was part of the HKD13,491,628.24 transferred by Ashurst to CIG on 13 December 2019, most of the balance of which (HKD3,409,496.46), was applied on the same day, 31 December 2019, towards outstanding interest on SA4 for May, June and July 2019 largely corresponding to the monthly interest amounts shown on the interest invoice for SA4; and
(c)in addition to the first two matters which are pleaded, Mr Kingston submitted there was a further transfer on 6 January 2020 of HKD27,546.97 to Taiping Trustees.

There does not appear to be a factual contest concerning the pleaded transfers. The Reply admits that, on 31 December 2019, CIG caused or permitted HKD10,054,964.81 that had been remitted from the Ashurst Trust Account to CIG to be transferred to the loan account maintained by Taiping Trustees in respect of P Note 1. It admits that, on 4 January 2020, Connie Lau of China Taiping notified Mr Wang and Mr Liu that HKD10,082,191.78 would be applied towards interest on P Note 1 for the quarter ending 31 December 2019 and that the balance of HKD3,409,496.46 would be applied to pay interest on SA4.

Mr Kingston submitted that the internal transfers, both pleaded and otherwise, had the effect that there was no default meriting the appointment of receivers to Sargon, TTIM and TCFM on 29 January 2020. It is at this point that the argument breaks down. The evidence does not make good the submission.

For Mr Kingston to establish there had been wrongful appointment of receivers, it was necessary for him to show that there was no default in relation to P Note 1 on 29 January 2020 at the time the receivers were appointed. That was not established. Mr Kingston’s submissions did not address the question of how much interest (or other amounts) was actually required to be paid to Taiping Trustees under P Note 1 as at 29 January 2020. The evidence did not enable a comparison and no comparison was undertaken in submissions between the amount of interest and any other charges necessary to be paid to discharge obligations under P Note 1 and the amounts that were transferred on 13 and 31 December 2019 and on 6 January 2020. Mr Kingston did not prove that there was no event of default in relation to P Note 1 at the date of appointment of the receivers. He did not prove that the appointment of the receivers was wrongful.

Mr Kingston also makes a complaint that the 1 February 2020 letter, which offered to suspend the receiverships if interest on SA1-SA3 and SA4 was paid, was unconscionable because the interest on SA1-SA3 and SA4 was not due and owing. There is no substance to that allegation of unconscionable conduct in view of the findings earlier made.

Considered against the normative standard of business conscience described in Quantum Housing Group and in Paciocco, the evidence falls short of proving unconscionable conduct contrary to the statute on the part of Taiping Trustees. There is simply insufficient evidence about what Taiping Trustees did and why to establish that its actions referred to in the particulars were irreconcilable with what is ‘right or reasonable’.

There is a further independent reason why the allegations of unconscionable conduct fail against CIG. Mr Kingston submitted that there was an intertwined involvement of CIG and Taiping Trustees and that the unconscionable conduct consisted both of making unlawful demands and appointing receivers on the basis of those demands. It was submitted that this constituted a course of conduct that CIG was engaged in or was involved so as to bring it within the ambit of s 12GM of the ASIC Act and so as to enliven the Court’s powers to make orders declining to enforce the CIG loans against Mr Kingston.

Assuming it were open for findings to be made concerning Taiping Trustees’ conduct and assuming the evidence was sufficient to establish unconscionable conduct contrary to s 12CB on the part of Taiping Trustees, the evidence falls short of establishing ‘knowledge’ or ‘acquiescence’ on the part of CIG in the actions of Taiping Trustees of which Mr Kingston complains. There is no evidence that anyone from CIG knew or should have known, assuming it to be the case, that P Note 1 was not in default at the date the receivers were appointed. Mr Kingston’s own submissions accept that Mr Wang did not know anything about the appointment of the receivers. The Court was not directed to any evidence to support a finding that anyone else at CIG knew or ought to have known about the appointment of receivers by Taiping Trustees. Although many issues were canvassed at length during the trial, the circumstances of the appointment of the receivers was not one of them.

Concerning acquiescence; CIG submitted and Mr Kingston did not contest that, in order to establish acquiescence in the acts of another, not only knowledge but also a right to object or prevent that act and a standing by or failure to exercise that right must be established.[77] There is no evidence and no basis to suggest that CIG had any right to interfere in any actions that Taiping Trustees might choose to take to exercise its rights in relation to P Note 1. There is no basis to support a finding of acquiescence by CIG.
[77]Relying on Duke of Leeds v Earl of Amherst (1846) 2 Ph 117; (1846) 41 ER 886, 888 (Lord Cottenham LC); Orr v Ford [1989] HCA 4; (1989) 167 CLR 316, 337-338 (Deane J).

As a separate but substantive matter, how can it be that a person who knows of the (assumed) unconscionable conduct of another, in this case the wrongful appointment of a receiver, but has no right to object to or prevent such conduct, could be said to have themselves engaged in unconscionable conduct contrary to the normative standard of business conscience?

Knowledge of a wrongful appointment, whilst powerless to prevent it, does not readily meet the description of ‘trickery or sharp practice’. This is not a case in which a mortgagee is alleged to have failed to act in good faith when appointing a receiver or exercising its rights in relation to security held. The ADC does not allege that Taiping Trustees had no right to appoint a receiver to Sargon, TTIM or TCFM. In this case, what is in issue is a claim for debt by CIG which did not appoint a receiver.

The behaviour on the part of CIG identified in paragraphs seven to nine of the particulars to paragraph 21.4 of the ADC, even if established, is not behaviour that could properly be characterised as sufficient departure from the norms of acceptable commercial behaviour so as to be against conscience or to offend conscience so as to be characterised as unconscionable.

The unconscionable conduct claim fails.

I7. The remaining issues

Concerning issues 23 and 25 in the fourth group of issues, the position is as follows:

(a) question 23; the evidence does not establish whether the appointment of receivers to Sargon, TTIM and TCFM by Taiping Trustees on 29 January 2020 was made with the knowledge and acquiescence of CIG; and

(b) question 25; I reject the proposition that CIG has engaged in conduct that is, in all the circumstances, unconscionable in contravention of s 12CB of the ASIC Act.

Given my findings in relation to issues 18 to 25, it is unnecessary to deal with the question of the application of the ASIC Act. That is so because, assuming the ASIC Act has application, I have not found any contraventions of its provisions.

As I have rejected arguments on behalf of Mr Kingston that the Loan Agreement and SA1-SA4 or any of them are unenforceable or void, no occasion arises to consider the alternative claim by CIG that Mr Kingston has been unjustly enriched by the receipt of HKD653m advanced pursuant to those loan agreements. Similarly, there is no need to deal with the alternative claim by CIG that the moneys advanced by Mr Kingston were moneys had and received by him to the use of CIG.

When CIG demanded repayment of all outstanding principal and interest on SA1-SA4, it was entitled to do so. Mr Kingston admits he failed to pay the amount of HKD664,900,126.57 owing as at 20 January 2020. He has no defence to CIG’s claim for repayment of debt, interest and costs.

J.Disposition

For the reasons previously stated, there will be judgment in favour of CIG. The counterclaim is dismissed. Orders or declarations may be made dealing with s 18(3) of the MLO.

CIG is directed to prepare a draft form of order reflecting these reasons, including dealing with questions of interest, and to provide it to the Court and to Mr Kingston by 4:00pm on 10 February 2023. If the parties are able to agree as to appropriate orders concerning costs, the draft order should incorporate orders dealing with costs. If the parties are unable to agree upon orders as to interest and costs, then, by 4:00pm on 17 February 2023, CIG is to file and serve a draft form of order, together with submissions and any evidence sought to be relied on. By 4:00pm on 24 February 2023, Mr Kingston is to file and serve a draft form of order and any submissions and evidence upon which he wishes to rely as to those matters. Unless the parties are advised otherwise, any outstanding questions of interest and costs will be determined on the papers.

[2023] VSC 6

19 January 2023