Hung v Warner, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation)

The case of Hung v Warner, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) involves an appeal against the decision of the trial judge who declared that Bellpac was the “true owner” of convertible bonds issued by Gujarat. The trial judge also ordered Ken Hung to deliver up the bond certificates and transfer forms to Bellpac. Ken Hung and Austcorp appealed this decision, arguing that Bellpac was not the true owner and that other bondholders should have been joined in the proceedings. The appeal challenges the trial judge's conclusion that Bellpac remained the “true” owner of the bonds and the dismissal of an interlocutory application seeking to join additional parties.

The primary legal issues the court had to decide were whether the respondents bore the onus of disproving the appellants' alleged transactions and whether certain witnesses should be considered "hostile," thereby preventing adverse inferences from being drawn due to their non-appearance. Additionally, the court had to determine if it was necessary to join other bondholders who had received transfers of bonds and become registered on the Register as bondholders. The court also considered whether the possession of bond certificates and executed transfers gave rise to a presumption of ownership.

The court found that the appellants did not discharge their onus of proving the transactions they alleged to have occurred. It was held that the respondents did not need to disprove these transactions as the appellants failed to make a “no case” submission at trial. The court emphasised that the function of the appellate court is to consider the evidence and arguments presented, applying the principle from Hume v Munro (No 2) and Currie v Dempsey. Regarding the witnesses, the court concluded that those in the “camp” of the appellants could not be considered “hostile,” and therefore, an adverse inference could be drawn from their non-appearance. Lastly, the court found that the Other Holders were not necessary parties because their rights or liabilities were not directly affected by the proceedings.

The appeal was dismissed, and the appellants were ordered to pay the respondents' costs. The decision reinforced the importance of the onus of proof and the necessity of joining parties whose rights or liabilities are directly affected by the proceedings.