DC Rd DC Pty Ltd v Zhang (No 2) - [2024] FCA 157

FEDERAL COURT OF AUSTRALIA
DC Rd DC Pty Ltd v Zhang (No 2) [2024] FCA 157

File number(s): NSD 247 of 2023

Judgment of: JACKMAN J

Date of judgment: 29 February 2024

Catchwords:
PRACTICE AND PROCEDURE – whether to make order for production – where proposed order identical to previous orders and there has been no material change in circumstances – order not made

PRACTICE AND PROCEDURE – whether to make Sabre order – where proposed order set out particular steps to be taken – whether order would impose unreasonable interference with liberty – where director of respondent required to travel to Hong Kong – where reimbursement for travel and accommodation expenses limited to AUD10,000 – order made

Legislation:
Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 (Cth) r 20.32

Cases cited:
DC Rd DC Pty Ltd v Zhang [2023] FCA 342

Impiombato v BHP Group Ltd (No 3) [2023] FCA 1104

Kraft Foods Group Brands LLC v Bega Cheese Ltd (No 4) [2018] FCA 1055

Mylan Australia Holding Pty Ltd v Commissioner of Taxation [2023] FCA 672

Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Company (1993) 46 FCR 428

SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) [2006] FCA 931; (2006) 155 FCR 150

Vringo Infrastructure, Inc v ZTE (Australia) Pty Ltd (No 2) [2014] FCA 525

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Number of paragraphs: 32

Date of hearing: 23 February 2024

Counsel for the Applicants: Mr C Colquhoun SC

Solicitor for the Applicants: Corrs Chambers Westgarth

Counsel for the First, Fifth and Ninth Respondents: Mr R Scruby SC and Mr DF Elliott

Solicitor for the First, Fifth and Ninth Respondents: Piper Alderman

ORDERS

NSD 247 of 2023

BETWEEN:
DC RD DC PTY LTD

First Applicant

STANLEY XUE

Second Applicant

SIT FAMILY PTY LTD ACN 617 947 065

Third Applicant

AND:
DONG (TONY) ZHANG

First Respondent

ZHENGJUN (BOB) CAI

Second Respondent

CENTRAL ADVISORY GROUP PTY LTD ACN 163 958 843 (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

JACKMAN J

DATE OF ORDER:

29 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The fifth respondent (Link) make such requests and do such things as may be reasonably necessary to obtain the bank statements for any bank account in the name of, or held by, Link with Bank of China (Hong Kong) Ltd (BOC) for the period 1 January 2019 to 31 March 2023 (Link Account Statements), and produce them to the applicants, by 4 pm on 26 April 2024, including but not limited to:
(a)arranging for the first respondent (Mr Zhang) or another director of Link to attend a BOC branch in Hong Kong in person;
(b)completing any application form required by BOC;
(c)providing such identity verification documents as may be required by BOC; and
(d)paying any fees charged by BOC.

2.For the purposes of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FCA 157
Decision Date: 29 February 2024

CaseChat Overview and Summary

DC Rd DC Pty Ltd brought an application against Zhang, and others, seeking orders for the production of documents and for reimbursement of costs. The Federal Court considered the application, which included requests for the production of bank statements and reimbursement of expenses up to a specified amount. The court was tasked with determining whether to grant orders for the production of documents and whether to make a Sabre order, which would require a director of the respondent to travel to Hong Kong, given the limitations on reimbursement for travel and accommodation expenses.

The court examined whether the proposed orders for production were appropriate, considering that they were identical to previous orders and there had been no material change in circumstances. The court found that the circumstances had not sufficiently changed to warrant a new order for production. Regarding the Sabre order, the court assessed whether it would impose an unreasonable interference with the liberty of the respondent's director, who was required to travel to Hong Kong. The court considered the limitation on reimbursement for travel and accommodation expenses to AUD10,000 and concluded that the order would not impose an unreasonable interference with liberty. The court therefore made the proposed Sabre order, with the specified conditions and limitations on reimbursement.

In conclusion, the court made orders for the respondent, Link, to obtain and produce bank statements from Bank of China (Hong Kong) Ltd for a specified period, and to provide these statements to the applicants by a certain date. The court also provided conditions for the delivery and reimbursement of these documents. Additionally, the court ordered Link to pay the applicants’ costs of the interlocutory application. The orders were made in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The fifth respondent (Link) make such requests and do such things as may be reasonably necessary to obtain the bank statements for any bank account in the name of, or held by, Link with Bank of China (Hong Kong) Ltd (BOC) for the period 1 January 2019 to 31 March 2023 (Link Account Statements), and produce them to the applicants, by 4 pm on 26 April 2024, including but not limited to:

(a) arranging for the first respondent (Mr Zhang) or another director of Link to attend a BOC branch in Hong Kong in person;

(b) completing any application form required by BOC;

(d) paying any fees charged by BOC.

2. For the purposes of Order 1 above:

(a) Link is to provide the applicants with three business days’ notice of the branch location, date and time at which its director will attend a BOC branch in Hong Kong;

(b) upon receipt of such notice, the applicants will inform Link of the identity of the solicitor from Withers Worldwide (the Applicants’ Representative) who will attend the BOC branch at the date and time specified by Link;

(c) immediately upon receipt of the Link Account Statements from BOC, Link is to provide the hard copy Link Account Statements to the Applicants’ Representative;

(d) within 14 days of receiving the Link Account Statements, the applicants are to provide complete electronic copies of the Link Account Statements to Link and Mr Zhang; and

(e) the applicants are to reimburse Link for its reasonable expenses incurred in complying with Order 1, provided that the total amount of those expenses does not exceed AUD 10,000.

3. Link is to pay the applicants’ costs of the Interlocutory Application dated 7 December 2023.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NSD 247 of 2023
Judgment of:	JACKMAN J
Date of judgment:	29 February 2024
Catchwords:	PRACTICE AND PROCEDURE – whether to make order for production – where proposed order identical to previous orders and there has been no material change in circumstances – order not made PRACTICE AND PROCEDURE – whether to make Sabre order – where proposed order set out particular steps to be taken – whether order would impose unreasonable interference with liberty – where director of respondent required to travel to Hong Kong – where reimbursement for travel and accommodation expenses limited to AUD10,000 – order made
Legislation:	Federal Court of Australia Act 1976 (Cth) s 37M Federal Court Rules 2011 (Cth) r 20.32
Cases cited:	DC Rd DC Pty Ltd v Zhang [2023] FCA 342 Impiombato v BHP Group Ltd (No 3) [2023] FCA 1104 Kraft Foods Group Brands LLC v Bega Cheese Ltd (No 4) [2018] FCA 1055 Mylan Australia Holding Pty Ltd v Commissioner of Taxation [2023] FCA 672 Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Company (1993) 46 FCR 428 SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) [2006] FCA 931; (2006) 155 FCR 150 Vringo Infrastructure, Inc v ZTE (Australia) Pty Ltd (No 2) [2014] FCA 525
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	32
Date of hearing:	23 February 2024
Counsel for the Applicants:	Mr C Colquhoun SC
Solicitor for the Applicants:	Corrs Chambers Westgarth
Counsel for the First, Fifth and Ninth Respondents:	Mr R Scruby SC and Mr DF Elliott
Solicitor for the First, Fifth and Ninth Respondents:	Piper Alderman

ORDER MADE BY:	JACKMAN J
DATE OF ORDER:	29 FEBRUARY 2024