In the matter of Sunnya Pty Ltd - [2024] NSWSC 403

Supreme Court

New South Wales

Medium Neutral Citation: In the matter of Sunnya Pty Ltd [2024] NSWSC 403
Hearing dates: 28 November and 1, 4–8, 11–15, 18 and 20–21 December 2023
Date of orders: 19 April 2024
Decision date: 19 April 2024
Jurisdiction: Equity - Corporations List
Before: Williams J
Decision:
See below at [1039]-[1047]

Catchwords:
CORPORATIONS – Directors – Duties under Corporations Act 2001 (Cth), ss 180, 181, 182 – Involvement of third parties in contraventions of ss 180, 181, 182
CORPORATIONS – Directors - Fiduciary duties owed to company during directorship – Circumstances in which former director continues to owe fiduciary duties to company after resigning as a director
EQUITY – Fiduciaries – Conflict rule – Profit rule – Liability of fiduciaries and third parties under the rule in Barnes v Addy – Alter ego doctrine
PROPERTY – Conveyancing Act 1919 (NSW), s 37A – alienation of property with intent to defraud creditors
CORPORATIONS – Whether affairs of company conducted in a manner that is contrary to interests of members as a whole, and oppressive to, unfairly prejudicial to, or unfairly discriminatory against a member

Legislation Cited:
Conveyancing Act 1919 (NSW) s 37A
Corporations Act 2001 (Cth) ss 79, 135, 140, 180, 181, 182, 201G, 232I, 233, 237, 248C, 249H, 250E, 248E, 250J-250M, 1317H, 1317S, 1318, 1322
Evidence Act 1995 (NSW) ss 136, 140, 166, 169

Cases Cited:
Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43
Australian Careers Institute Pty Ltd v Australian Institute of Fitness Pty Ltd (2016) 340 ALR 580; [2016] NSWCA 347
Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (2015) 235 FCR 181; [2015] FCA 342
Australian Securities and Investments Commission v Flugge (2016) 342 ALR 1; [2016] VSC 779
Australian Securities and Investments Commission v Geary (2018) 332 FLR 201; [2018] VSCA 103
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Australian Securities and Investments Commission v Maxwell (2006) 59 ACSR 373; [2006] NSWSC 1052
Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrieen France SA [1993] 1 WLR 509
Barnes v Addy (1874) LR 9 Ch App 244
Barton v Deputy Commissioner of Taxation (1974) 131 CLR 370; [1974] HCA 43
BCI Finances Pty Ltd (in liq) v Binetter (2018) 362 ALR 597; [2018] FCAFC 189
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Breen v Williams (1996) 186 CLR 71; [1996] HCA 57
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Canadian Aero Service Ltd v O’Malley [1974] SCR 592
Cannane v J Cannane Pty Ltd (in liq) (1998) 192 CLR 557; [1992] HCA 26
Cardile v LED Builders Pty Ltd (1999) 198 CLR 300; [1999] HCA 36
Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83; [1991] HCA 54
DSHE Holdings Ltd (receivers and managers apptd) (in liq) v Potts (2022) 405 ALR 70; [2022] NSWCA 165
Duncan v Independent Commission Against Corruption [2016] NSWCA 143
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12
Edmonds v Donovan (2005) 12 VR 513; [2005] VSCA 27
Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Foster Bryant Surveying Ltd v Bryant [2007] EWCA Civ 200
Friend v Booker (2009) 239 CLR 129; [2009] HCA 21
Giorgianni v R (1985) 156 CLR 473; [1985] HCA 29
Grimaldi v Chameleon Mining NL (2012) 200 FCR 296; [2012] FCAFC 6
Gunasegaram v Blue Visions Management Pty Ltd (2018) 129 ACSR 265; [2018] NSWCA 179
Hancock v Rinehart (2015) 106 ACSR 207; [2015] NSWSC 646
Harstedt Pty Ltd v Tomanek (2018) 55 VR 158; [2018] VSCA 84
Hart Security Australia Pty Ltd v Boucousis (2016) 339 ALR 659; [2016] NSWCA 307
Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266
Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21
Howard v Commissioner of Taxation (2014) 253 CLR 83; [2014] HCA 21
Hunter Kane Ltd v Watkins [2002] EWHC 186 (Ch)
Hyland v Hyland (1971) 18 FLR 461
In the matter of Sunnya Pty Ltd [2023] NSWSC 1104
In the matter of Sunnya Pty Ltd [2023] NSWSC 1286
Island Export Finance v Umunna [1986] BCLC 460
Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kim v Wang (2023) 298 FCR 337; [2023] FCAFC 115
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd (atfParras Family Trust) (2023) 407 ALR 613; [2023] HCA 6
Marcolongo v Chen (2011) 242 CLR 546; [2011] HCA 3
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150
Munstermann v Rayward; Rayward v Munstermann [2017] NSWSC 133
Murdoch v Mudgee Dolomite & Lime Pty Ltd (in liq) (2022) 398 ALR 658; [2022] NSWCA 12
Nicholls v Michael Wilson & Partners Ltd [2012] NSWCA 383
OLI 1 Pty Ltd (in liq) v OLG 1 Pty Ltd (2022) 164 ACSR 171; [2022] NSWSC 1199
Pilmer v Duke Group Limited (in liq) (2001) 207 CLR 165; [2001] HCA 31
Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; [2003] HCA 10
R v Byrnes (1995) 183 CLR 501; [1995] HCA 1
Re Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233; [2014] NSWSC 789
Re IW4U Pty Ltd (in liq) (2021) 150 ACSR 146; [2021] NSWSC 40
Re Sirrah Pty Ltd (in prov liq) (2021) 152 ACSR 212; [2021] NSWSC 413
Re Sunnya Pty Limited [2023] NSWSC 225
Realestate.com.au v Hardingham (2022) 406 ALR 678; [2022] HCA 39
Rheem Australia Pty Ltd v McInnes [2020] NSWSC 1313
Rishmont Pty Ltd v Tweed City Medical Centre Pty Ltd [2002] 2 Qd R 222; [2001] QSC 372
Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555
Saba v Plumb (2018) 97 NSWLR 278; [2018] NSWCA 60
Schmidt v AHRKalimpa Pty Ltd [2020] VSCA 193
Strategic Communications Management Pty Ltd v Techfront Australia Pty Ltd [2020] NSWSC 847
Super Vision Resources Ltd BVI Registered No 1810534 v AC Holdings Co Pty Ltd [2020] NSWCA 319
Termite Resources NL (in liq) v Meadows (2019) 370 ALR 191; [2019] FCA 354
Troulis v Vamvoukakis [1998] NSWCA 237
Twigg v Twigg (2022) 402 ALR 119; [2022] NSWCA 68
Tzavaras v Tzavaras & Sons Pty Ltd [2023] NSWCA 168
VicBeef Holdings Pty Ltd v Chen [2021] VSC 546
Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18
Watson v Foxman (1995) 49 NSWLR 315
Xiao v BCEG International (Australia) Pty Ltd (2023) 111 NSWLR 132; [2023] NSWCA 48
Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65
Zibara v Ultra Management (Sports) Pty Ltd (2021) 283 FCR 18; [2021] FCAFC 4

Texts Cited:
Ford, Austin & Ramsay’s Principles of Corporations Law (16th ed, 2015, Lexis Nexis Butterworths)
J. D. Heydon, Heydon on Contract: The General Part (2019, Lawbook Co)
J. D. Heydon, Cross on Evidence (14th ed, 2024, LexisNexis)

Category: Principal judgment
Parties:
2022/329426
Sunnya Pty Ltd (First Plaintiff/Cross-Defendant on First Cross Claim/Cross-Defendant on Second Cross Claim)
Jatcorp Limited (Second Plaintiff)
Yinghan He (First Defendant/First Cross-Claimant on Second Cross Claim)
Yanxia Lu (Second Defendant/Second Cross-Claimant on Second Cross Claim)
Guangzhou Aotea Biological Technology Pte Ltd (Third Defendant/Cross-Claimant on First Cross Claim)
Guangzhou Niurui Trading Co., Ltd (Fourth Defendant)
Sunlife Healthfood Pty Ltd (Fifth Defendant)
Yaqing He (Sixth Defendant)
HLW Investments Pty Ltd (Seventh Defendant)
Supermega Market Ltd (Eighth Defendant)
Megadairy Ltd (Ninth Defendant)
NZFDA Limited (NZ) (Tenth Defendant)
2022/333557
All168 Pty Ltd (First Plaintiff)
Yinghan He (Second Plaintiff)
Yanxia Lu (Third Plaintiff)
Jatcorp Limited (First Defendant)
Peng Shen (Second Defendant)
Zhan Wang (Third Defendant)
Zhiguo Zhang (Fourth Defendant)
Sunnya Pty Ltd (Fifth Defendant)
Representation:
Counsel:
2022/329426
Mr RM Foreman SC, Mr MR Davis, and Mr GP Gee (Plaintiffs/Cross-Defendant on First Cross Claim/Cross-Defendant on Second Cross Claim)
Mr W Shen (solicitor) (First, Second and Sixth Defendants/Cross-Claimants on Second Cross Claim) (on 6 December 2023)
Dr SA Baron Levi (First, Second and Sixth Defendants/Cross-Claimants on Second Cross Claim) (on and from 7 December 2023)
Mr MGR Gronow KC, Mr A Aleksov, and Mr YLR Chen (Eighth, Ninth, and Tenth Defendants)

2022/333557
Mr W Shen (solicitor) (Plaintiffs) (on 6 December 2023)
Dr SA Baron Levi (Plaintiffs) (on and from 7 December 2023)
Mr RM Foreman SC, Mr MR Davis, and Mr GP Gee (Defendants)

Solicitors:
2022/329426
Auyeung Hencent & Day Lawyers (Plaintiffs/Cross-Defendant on First Cross Claim/Cross-Defendant on Second Cross Claim)
SHEN’S Lawyers (First, Second and Sixth Defendants/Cross-Claimants on Second Cross Claim) (on and from 6 December 2023)
Roberts Gray Lawyers (Eighth, Ninth, and Tenth Defendants)

2022/333557
SHEN’S Lawyers (Plaintiffs) (on and from 6 December 2023)
Auyeung Hencent & Day Lawyers (Defendants)
No Appearance:
2022/329426
Guangzhou Aotea Biological Technology Pte Ltd (Third Defendant/Cross-Claimant on First Cross Claim)
Guangzhou Niurui Trading Co., Ltd (Fourth Defendant)
Sunlife Healthfood Pty Ltd (Fifth Defendant)
HLW Investments Pty Ltd (Seventh Defendant)

File Number(s): 2022/329426 and 2022/333557
Publication restriction: N/A

JUDGMENT

TABLE OF CONTENTS

Introduction

Summary of relevant evidence

Introductory observations
The business of Sunnya in the period up to October 2018
Jatcorp’s acquisition of a majority shareholding in Sunnya in October 2018
Registration of modern Neurio trade marks from April 2019
Day-to-day management and control of Sunnya after Jatcorp’s acquisition of its majority shareholding
Manufacture of Sunnya’s Neurio-branded products
Sales and distribution of Sunnya’s Neurio-branded products in China
Changes in the general trade channel sales and distribution processes from April 2021
The financial impact of the April 2021 changes
The He Parties’ explanation for the April 2021 changes: the Customs Investigation
Mr He becomes the majority shareholder of GABT in March 2021
GABT’s authorisation of Sunnya’s use of the Neurio trade marks in China
Registration of the Guamis trade mark in March 2020 and development of the Guamis brand in the period from September 2021
Supply of Neurio products to GABT and GNT by Supermega and/or Megadairy during the period from March 2022 to January 2023
Meeting between Mr He, Mr Wang and others in October 2022
Notice of Extraordinary General Meeting of Sunnya issued on 21 October 2022
Events after the issue of the Notice of Extraordinary General Meeting
Extraordinary General Meeting of Sunnya held on 31 October 2022
Attempted transfers of the Australian, New Zealand, and Indonesian Neurio trade marks, and application for registration of European Neurio trade mark, in late October and early November 2022
Further events leading to the commencement of the Sunnya proceedings on 3 November 2022
Events immediately following the commencement of the Sunnya and All168 proceedings
Resignation of Mr He and Ms Lu
Registration of the NRIO trade mark
Sale of co-branded Neurio and NRIO formulated milk powder products in China
Manufacture and supply of Guamis products in the period from December 2022
Sale of “sticker tins” in the period since February 2023
Alleged unauthorised sale of “written off” Neurio-branded products batch NE04220009
New Zealand trade mark notices filed on 8 March 2023
Funds transfers in February and March 2023 after service of Plaintiffs’ application for freezing orders in the Sunnya proceedings
Transfers of funds from Mr He and Ms Lu to HLW during the period from 15 February 2023 to 3 March 2023
Transfers of funds made by Mr He and Ms Lu to Ms He during the period from 21 February 2023 to 3 March 2023

Mr He ceases to be a shareholder of GABT on 10 March 2023
Activities in relation to the Guamis brand in the period from March 2023

Consideration and determination: Sunnya proceedingS

Overview of claims
Applicable legal principles
Fiduciary duties of directors
Continuing fiduciary duties after a director’s resignation
Third party liability under Barnes v Addy
Liability of an alter ego of the defaulting fiduciary
Joint liability of a third party “acting in concert with” a defaulting fiduciary
Corporations Act s 180
Corporations Act s 181
Corporations Act s 182
Involvement in breaches of statutory duty

Observations concerning the evidence of the Plaintiffs’ witnesses
Inferences to be drawn from the failure of Mr He, Ms Lu and Ms He to give evidence
Observations concerning the evidence of Mr Wu
Inferences and admissions that may be drawn from the conduct of parties and witnesses in these proceedings
Trademark Registration Authorization Agreement and Trademark Usage Authorisation Agreement purportedly dated 16 December 2014
Production Sales and Confidentiality Agreement purportedly dated 9 June 2015, OEM Authorization Letter purportedly dated 8 July 2019, and associated emails
2019 Guamis agreement
Resolution of All168 purportedly dated 28 June 2022 and loan agreement between Sunlife (as lender), Ms He (as borrower) and Mr He (as guarantor) purported dated 28 June 2022
The five disputed sales contracts and contracts of purchase

Under value sales claims
Outline of the parties’ contentions
Consideration and determination
Conclusion

Commercial invoices claims
Outline of the parties’ contentions
Consideration and determination
Conclusion

Improper Neurio contracts claims
Outline of the parties’ contentions
Consideration and determination
Conclusion

Trade mark transfer claims
Outline of the parties’ contentions
Consideration and determination
Conclusion

European trade mark claim
Outline of parties’ contentions
Consideration and determination
Conclusion

Neurio/NRIO claims
Outline of the parties’ contentions
Consideration and determination
Conclusion

Improper Neurio products claims
Outline of the parties’ contentions
Consideration and determination
Conclusion

Sale of destroyed products claims
Outline of the parties’ contentions
Consideration and determination
Conclusion

Sale of written off products claims
Outline of the parties’ contentions
Consideration and determination
Conclusion

Section 37A claims – payments to HLW
Outline of the parties’ contentions
Consideration and determination
Conclusion

Section 37A claims – payments to Ms He
Outline of the parties’ contentions
Consideration and determination
Conclusion

Guamis claims
Outline of the parties’ contentions
Consideration and determination
Claims against Mr He and Ms Lu
Third party claims
Claims against Sunlife and Ms He
Claims against GABT
Claims against GNT
Claims against Supermega, Megadairy and NZFDA

Conclusion

Cross-claims

Consideration and determination: All168 proceedings

Overview of the claims for relief
Proper construction of the Share Purchase Agreement
EGM resolutions on 31 October 2022
Board resolutions on 2 November 2022
Alleged oppression

Conclusion and orders

Introduction

Jatcorp Limited (Jatcorp) is a company listed on the Australian Stock Exchange (ASX).
Sunnya Pty Ltd (Sunnya) was incorporated in August 2014 by Mr Yinghan He (also known as Hansun He) and Ms Yanxia Lu (also known as Daisy Lu). By mid-2018, Sunnya’s business included the export and sale of formulated milk powder products under the brand name “Neurio”. Those products were manufactured in Australia and New Zealand by third party manufacturers under contract with Sunnya. The People’s Republic of China was the principal target market for Sunnya’s Neurio-branded products. Mr He and Ms Lu were the directors and shareholders of Sunnya.
On or about 13 June 2018, Jatcorp^[1] entered into a Share Purchase Agreement with Mr He and Ms Lu pursuant to which Jatcorp agreed to purchase 51 per cent of the shares in Sunnya.
1. Then known as Jatenergy Ltd.
Following completion of the Jatcorp acquisition in about October 2018, Mr He and Ms Lu retained 49 per cent of the shares in Sunnya and remained as directors of the company. Jatcorp appointed two additional directors to Sunnya – Mr Wilton Yao and Mr Anthony Crimmins. In addition to remaining as directors of Sunnya, Ms Lu served as Chief Executive Officer and Mr He served as General Manager.
Mr He and Ms Lu’s 49 per cent shareholding in Sunnya was transferred to All168 Pty Limited (All168) on or about 27 January 2022. Mr He and Ms Lu each hold 50 per cent of the shares in All168. All168 is the trustee of the All168 Family Trust. The beneficiaries of that trust include Mr He and Ms Lu.
Guangzhou Aotea Biological Technology Pte Ltd (GABT) is a company registered in the People’s Republic of China. The company was established in August 2007 with Ms Lu as its majority founding shareholder, and her brother Mr Yancheng Lu as the company’s Executive Director, Manager and Legal Representative. On or about 1 March 2012, Ms Lu ceased to hold any shares in GABT, and Mr Yangcheng Lu and Ms Yanping Lu became the sole shareholders of the company. Ms Yanping Lu is the sister of Ms Lu. On or about 5 March 2021, Mr Yancheng Lu and Ms Yanping Lu transferred 95 per cent of the shares in GABT to Mr He. Mr Yancheng Lu held the remaining 5 per cent of the shares. A company extract for GABT dated 1 November 2022 identified Mr He as the “Major shareholder”, “Actual controlling person”, and “Ultimate beneficiary”. Mr He ceased to be a shareholder of GABT on 10 March 2023. Mr Yancheng Lu has been the sole shareholder of the company since that time. Mr Yancheng Lu has been the Executive Director, General Manager, and Legal Representative of GABT, and Ms Yanping Lu has been the Supervisor of the company, at all times relevant to these proceedings.
As referred to in more detail later in these reasons, GABT is the registered owner of Neurio trade marks in China, and Sunnya is the registered owner of Neurio trade marks in Australia, New Zealand, and certain other jurisdictions. GABT is also the registered owner of the domain name neurio.com.cn, which was registered in October 2015, and which is described in public records as GABT’s official website. Public records relating to GABT describe the scope of its business as including, amongst many other activities, importing and exporting of goods, and wholesale and retail of dairy products and pre-packaged foods.
Guangzhou Niurui Trading Co., Ltd (GNT) was registered in China in November 2010. According to public records relating to GNT, Ms Lu was a shareholder of the company until August 2019. The present shareholders are Ms Yanping Lu, Ms Aiping Zhang, and Tianyuan He. Ms Yanping Lu is recorded as a “Major shareholder” and “Ultimate beneficiary”, and Ms Aiping Zhang is recorded as a “Major shareholder”, an “Ultimate beneficiary” and the “Actual controlling person”. Ms Zhang is identified in public records for GNT as the Executive Director and General Manager of the company. Ms Zhang is married to Mr Yancheng Lu, and so is the sister-in-law of Ms Lu. GNT changed its name to Newrio (Guangzhou) Trading Co Ltd in July 2023, but I will refer to it in these reasons by its former name Guangzhou Niurui Trading Co., Ltd or GNT, being its name at the time of the commencement of these proceedings and at the time of the events giving rise to these proceedings.
From about May 2020, Sunnya contracted with Supermega Market Limited (Supermega) for the manufacture and supply of the Neurio-branded formulated milk powder products that Sunnya exported to China. Supermega is a New Zealand-registered company that specialises in the manufacture and packaging of nutritional products for export. The products manufactured by Supermega and its related companies at their manufacturing plants located in Auckland, New Zealand, include infant formula and other pregnancy and infant nutritional products. Mr Yi Wu (also known as Easter Wu) is the sole director of Supermega. South Pole Brand Management Co Limited (South Pole BM) is the company’s sole shareholder. South Pole BM is a private company registered in Hong Kong. Mr Wu is the sole director of South Pole BM.

The products supplied by Supermega to Sunnya were manufactured by Supermega’s related company Megadairy Limited, which is also registered in New Zealand (Megadairy). Mr Wu is the sole director and sole shareholder of Megadairy.
Mr Wu is also the sole director of New Zealand registered company NZFDA Limited (NZFDA). South Pole IP Holding (NZ) Limited (South Pole IP) is the sole shareholder of NZFDA. Mr Wu is the sole director and sole shareholder of South Pole IP.
Mr Wu is also the sole director of New Zealand registered company Mega Aqua Limited (Mega Aqua). South Pole IP is the sole shareholder of Mega Aqua, and Mr Wu is the sole director and sole shareholder of South Pole IP.
Mr He and Ms Lu are married. Their daughter, Ms Yaqing He, was employed by Sunnya as a part-time marketing assistant from about 15 May 2020, and in a media operations role from about 1 March 2022.
Ms He is the sole director and shareholder of Sunlife Healthfood Pty Ltd, which was registered in New South Wales on 7 August 2019 (Sunlife). At times relevant to these proceedings, Sunlife was the registered owner of the trade marks “Guamis” and “NRIO” in Australia and New Zealand. After the commencement of these proceedings, Sunlife transferred those trade marks to NZFDA in about March 2023.
The identity of the Jatcorp nominees appointed to the board of directors of Sunnya changed from time to time after Jatcorp became the majority shareholder in October 2018. Mr Crimmins ceased to be a director of Sunnya on 20 December 2018. Mr Yao ceased to be a director of Sunnya on 23 April 2020. It appears that Jatcorp caused Mr Bo Qiang (also known as Charlie Qiang) to be appointed to replace Mr Yao. From 1 September 2022, Mr Qiang was the only Jatcorp-nominated director of Sunnya.
In October 2022, Jatcorp informed Mr He and Ms Lu that it intended to increase its representation on the Sunnya board to three directors, and to have greater involvement in the management of Sunnya. This occurred in the context of certain concerns held by Jatcorp about the financial performance of Sunnya, and an allegation by Jatcorp that Mr He had improperly sought to pay AUD$950,000 from Sunnya’s bank account ostensibly to HLW Investments Pty Ltd (HLW), which payments were in truth intended for GNT. Mr He and Ms Lu are the directors of HLW and Ms Lu is the company’s sole shareholder.
At an extraordinary general meeting of Sunnya convened by Jatcorp and held on 31 October 2022, Jatcorp voted to remove Mr Qiang from the board, and to appoint Mr Zhan Wang (also known as Jack Wang), Mr Zhigou Zhang (also known as Scott Zhang) and Mr Peng Shen (also known as Dennis Shen) as directors of Sunnya. Mr He and Ms Lu did not participate in that meeting. Mr He and Ms Lu had objected to Jatcorp convening the meeting on short notice.
At the time of his appointment as a director of Sunnya on 31 October 2022, Mr Wang had been a director of Jatcorp since 20 June 2022 and Managing Director of that company since 6 September 2022. Mr Wang remains the Managing Director of Jatcorp, and continues to be a director of Sunnya.
Prior to his appointment as a director of Sunnya on 31 October 2022, Mr Zhang had been employed as General Manager of Sunnya since from about December 2019 until June 2022. Mr Zhang had been appointed as a director of Jatcorp on 1 September 2022. Mr Zhang remains a director of both Jatcorp and Sunnya, and is presently the Chief Operating Officer of Jatcorp.
It appears that Mr He and Mr Zhang both claim to have held the title of General Manager at Sunnya during the period of Mr Zhang’s employment from about December 2019 until about June 2022. There is some dispute about whether Mr He’s title was one of General Manager, or Company Secretary. Nothing turns on this. Their respective roles in the day to day operations of Sunnya during that period are described later in these reasons. There is no dispute that Mr He’s role was an executive one.
Immediately after the extraordinary general meeting on 31 October 2022, the newly appointed directors of Sunnya became aware that Mr He and Ms Lu had taken steps to cause the registered ownership of the Neurio trade marks in Australia and New Zealand to be transferred to GABT for no monetary consideration.
At a board meeting of Sunnya held on 2 November 2022, which Mr He and Ms Lu did not attend, it was resolved to remove Mr He as Company Secretary and to remove Ms Lu as Chief Executive Officer of Sunnya with immediate effect, to appoint Mr Wang as Managing Director of Sunnya, to appoint solicitors to investigate and take such legal action as the board may approve in relation to the dissipation or potential dissipation of Sunnya’s assets, and to require Mr He and Ms Lu to refrain from authorising the disposal or transfer of any asset or funds of Sunnya, entering into any binding agreements on behalf of Sunnya, or authorising any ASIC lodgements on behalf of Sunnya.
Mr He and Ms Lu resigned as directors of Sunnya on 25 November 2022, and resigned from their employment with Sunnya on 7 December 2022.
Proceeding 2022/329426 was commenced on 3 November 2022 (the Sunnya proceedings). Sunnya and Jatcorp are the first and second plaintiffs, respectively. Jatcorp commenced the proceedings to seek relief on behalf of Sunnya pursuant to s 237 of the Corporations Act 2001 (Cth) against Mr He and Ms Lu (the first and second defendants) for alleged breaches of their statutory and fiduciary duties as directors of Sunnya, including by taking steps in late October and early November 2022 to transfer Sunnya’s registered Neurio trade marks in Australia and New Zealand to GABT for no monetary consideration, shortly before Mr He and Ms Lu resigned as directors of Sunnya on 25 November 2022.
By the time of the hearing in November and December 2023, Sunnya’s claims against Mr He and Ms Lu included claims for alleged breaches of fiduciary duties that Sunnya contends they continued to owe after their resignation as directors.
The claims for relief also include claims against GABT (the third defendant), GNT (the fourth defendant), Sunlife (the fifth defendant), Ms He (the sixth defendant), Supermega (the eighth defendant), Megadairy (the ninth defendant), and NZFDA (the tenth defendant) for involvement within the meaning of s 79 of the Corporations Act in the alleged breaches of statutory duties by Mr He and Ms Lu, and as knowing recipients or knowing assistants in the alleged breaches of fiduciary duties by Mr He and Ms Lu.
Sunnya also seeks orders under s 37A of the Conveyancing Act 1919 (NSW) setting aside certain payments made by Mr He, Ms Lu and HLW (the seventh defendant) to Ms He totalling AUD $400,000, and setting aside certain payments made by Mr He and Ms Lu to HLW totalling just under AUD $4,300,000, and orders requiring Ms He to repay those sums received by her and HLW to repay those sums received by it.
The Third Further Amended Statement of Claim in the Sunnya proceedings pleads 200 claims for relief against the defendants. During the course of the hearing, those claims for relief were reduced to the claims articulated in the final iteration of the plaintiffs’ written closing submissions.
Jatcorp was granted leave pursuant to s 237 of the Corporations Act to prosecute the proceedings on behalf of Sunnya on an interim basis on 9 March 2023,^[2] and on a final basis on 12 September 2023.^[3]
2. Re Sunnya Pty Limited [2023] NSWSC 225.
3. In the matter of Sunnya Pty Ltd [2023] NSWSC 1104, with the exception of Sunnya’s claims against GABT for a declaration that GABT authorised Sunnya to have exclusive and permanent use of Neurio trade marks registered in China, and for an order that GABT transfer those trade marks to Sunnya.
GABT filed a cross-claim in the Sunnya proceedings on 19 December 2022, seeking a declaration that it had validly terminated certain agreements it allegedly entered into with Sunnya in 2014 and 2020 concerning Neurio trade marks, a declaration that GABT was entitled to be registered as the owner of those trade marks in Australia, New Zealand and certain other jurisdictions, orders requiring Sunnya to transfer those registered trade marks to GABT, and orders restraining Sunnya from using those trade marks, and from using the Neurio trade marks registered in China.
Mr He and Ms Lu filed a second cross-claim in the Sunnya proceedings on 1 November 2023 seeking judgment against Sunnya for their unpaid salary, accrued annual leave and superannuation guarantee entitlements as at 25 November 2022, and damages for alleged breaches of their employment contracts.
Proceeding 2022/333557 was commenced on 7 November 2022 (the All168 proceedings). The plaintiffs – All168, Mr He and Ms Lu – dispute that the extraordinary general meeting held on 31 October 2022 and the board meeting held on 2 November 2022 were validly convened. The plaintiffs seek declarations that the resolutions passed at each purported meeting were ineffective. The plaintiffs also seek a declaration that, on the proper construction of the Share Purchase Agreement, Jatcorp was entitled to appoint no more than two directors to Sunnya. They contend that the resolutions passed at the two meetings, if effective, were in breach of the Share Purchase Agreement.
In addition, the plaintiffs in the All168 proceedings seek a declaration that Sunnya’s affairs have been conducted in a manner that is contrary to the interests of members as a whole, and oppressive to, unfairly prejudicial to, and unfairly discriminatory against, All168. The plaintiffs seek an order under s 233 of the Corporations Act that All168 purchase Jatcorp’s shares in Sunnya, or alternatively an order that Jatcorp purchase All168’s shares in Sunnya, at a price to be determined by the Court on the basis that GABT is the registered owner of the Neurio trade marks in China.
If the resolutions passed at the extraordinary general meeting on 31 October 2022 and at the board meeting on 2 November 2022 are found to have been effective (contrary to the claims referred to above), the relief sought by the plaintiffs in All168 in respect of the alleged oppression extends to an order under s 233 of the Corporations Act requiring the defendants to do all things necessary to convene a general meeting of the board members of Sunnya, and to pass resolutions at that meeting such that the board of Sunnya is comprised of no more than two directors nominated by Jatcorp and two directors nominated by Mr He and Ms Lu.
The defendants to the All168 proceedings are Jatcorp (the first defendant), Mr Shen (the second defendant), Mr Wang (the third defendant), Mr Zhang (the fourth defendant), and Sunnya (the fifth defendant).
There was a concurrent hearing of the Sunnya and All168 proceedings on all questions other than quantum over 15 days during the period from 28 November to 21 December 2023. For reasons that will become apparent below, the cross-examination of witnesses and the submissions made by the parties were directed principally to the issues in the Sunnya proceedings. The All168 proceedings received comparatively little attention during the hearing, and were the subject of submissions made in writing after the conclusion of the hearing (with leave). In these reasons, I will use the term Plaintiffs to refer to the plaintiffs in the Sunnya proceedings. I will use the term All168 Plaintiffs to refer to the plaintiffs in the All168 proceeding.
Mr Foreman SC, together with Mr Davis and Mr Gee of counsel, appeared for the Plaintiffs in the Sunnya proceedings, and for Jatcorp, Mr Shen, Mr Wang and Mr Zhang as the defendants in the All168 proceeding. As is conventional in oppression proceedings, Sunnya did not take an active role, and was not legally represented, in the All168 proceedings. I will refer to Jatcorp, Mr Shen, Mr Wang and Mr Zhang, collectively, as the All168 Defendants.
Until 26 November 2023, there were solicitors on the record for Mr He, Ms Lu, Sunlife, Ms He, and HLW as defendants in the Sunnya proceedings, and for All168, Mr He and Ms Lu as the plaintiffs in the All168 proceedings. Those parties – referred to collectively as the He Parties – had been represented by senior and junior counsel.
The He Parties withdrew their solicitor’s authority to act on 26 November 2023. Notices of removal of solicitor were filed in court at the commencement of the hearing on 28 November 2023 and there was no appearance for the He Parties on that day. On the application of the other parties to both proceedings, the hearing was adjourned until 1 December 2023 to enable those other parties to participate in a mediation. The He Parties were notified that the hearing would resume on 1 December 2023, and would continue thereafter, in the absence of the He Parties if they did not appear. There was no appearance for any of the He Parties thereafter until 6 December 2023, when Mr Wilson Shen, solicitor, appeared for Mr He and Ms Lu and applied to adjourn the hearing until some time in early 2024. That application was dismissed. From 7 December 2023, Mr He, Ms Lu, Ms He and All168 were represented by Dr Baron Levi of counsel, instructed by Mr Shen. By that time, the evidence relied on by all parties other than the He Parties had been read, the witnesses called by Sunnya had been cross-examined, and Mr Foreman SC had commenced the cross-examination of Mr Wu, who was giving evidence on behalf of Supermega, Megadairy and NZFDA. A further adjournment application made by Counsel on behalf of Mr He, Ms Lu, Ms He and All168 was dismissed. Evidence adduced in support of the unsuccessful adjournment applications disclosed that Mr He, Ms Lu and Ms He had returned to China. An application for directions for their evidence to be given by audio-visual link from China or Hong Kong was also dismissed. Mr He, Ms Lu and Ms He did not return to Australia. As they were not available for cross-examination, their affidavits were not read. Counsel for Mr He, Ms Lu, Ms He and All168 did not seek to read any affidavits of other witnesses that had been served on behalf of those parties. Counsel did tender a significant volume of documents, together with reports of Mr Nicholas Lopez, an expert forensic accountant.
The matters referred to immediately above, and the reasons for my dismissal of the adjournment applications, and the application for the evidence of Mr He, Ms Lu, and Ms He to be given by audio-visual link, are recorded in judgments delivered ex tempore during the hearing on 6, 7, 11 and 18 December 2023. For reasons that will become apparent, it is relevant to note that the evidence read on behalf of Mr He, Ms Lu, Ms He and All168 in support of their application to adjourn the hearing included an affidavit affirmed by Mr Shen on information and belief on 7 December 2023 that Mr He and Ms Lu wished to return to Australia in order to give evidence at the hearing and, indeed, that they had booked tickets on a flight that would arrive in Sydney on 11 December 2023. However, in support of the application for the evidence of Mr He, Ms Lu and Ms He to be given by audio visual link, Mr Shen affirmed an affidavit on 11 December 2023 on information and belief from Mr He and Ms Lu that they would not return to Australia, even if that meant that they would not be able to give evidence in these proceedings. There was no evidence explaining the fundamental inconsistency between the two affidavits, and counsel for Mr He, Ms Lu, Ms He and All168 was unable to offer any explanation for it. For the reasons set out in my judgment delivered ex tempore on 18 December 2023, there is no explanation that has been accepted by the Court for the conduct of Mr He and Ms Lu in departing the jurisdiction shortly before the commencement of the hearing, and in being prepared to give evidence in the proceedings only by audio visual link from China or Hong Kong. Nor is there any explanation that has been accepted by the Court for Ms He’s failure to attend the hearing, in circumstances where she was required for cross-examination and her former legal representatives had informed the Court in the weeks and months leading up to the commencement of the hearing that all of the He Parties’ witnesses – including Mr He, Ms Lu and Ms He - would attend Court in person for cross-examination.
There was no appearance for GABT throughout the hearing. GABT has not played an active role in the Sunnya proceedings since its former solicitors filed a Notice of Ceasing to Act on 17 April 2023. GABT failed to comply with discovery orders made in the Sunnya proceedings on 10 July 2023. GABT’s cross-claim in the Sunnya proceedings was dismissed on 7 December 2023 pursuant to r 13.6 of the Uniform Civil Procedure Rules (2005) (NSW) (UCPR).
There was also no appearance for GNT. GNT has never entered an appearance in the Sunnya proceedings. On 30 October 2023, leave was granted to the Plaintiffs to proceed against GNT pursuant to r 11.8AA of the UCPR.^[4]
4. In the matter of Sunnya Pty Ltd [2023] NSWSC 1286.
Mr Gronow KC, together with Mr Aleksov and Mr Chen of counsel, appeared for Supermega, Megadairy and NZFDA. I will adopt the parties’ convention of referring to these three defendants collectively as the NZ Parties.
In the balance of these reasons, I will refer to Mr He, Ms Lu, Ms He and All168 as the He Parties (excluding from that term the related defendants Sunlife and HLW, which did not appear at the hearing).

Summary of relevant evidence

Introductory observations

The evidence adduced at the hearing comprised:

the affidavits of Mr Wang, Mr Zhang and various other witnesses that were read by the Plaintiffs, and the evidence given by those witnesses under cross-examination;

various statements that the Plaintiffs tendered as admissions, or for non-hearsay purposes, from affidavits affirmed by Mr He, Ms Lu and Ms He that were served by the He Parties prior to the hearing, but that were not read at the hearing in the circumstances explained at [39] above;

the affidavits of Mr Wu that were read by the NZ Parties, and the evidence given by Mr Wu under cross-examination;

reports of Mr Trent Whitbourn, a computer and digital forensics expert, tendered by the Plaintiffs;

reports of forensic accounting experts Mr John Temple-Cole and Mr Nicholas Lopez, tendered by the Plaintiffs and the He Parties (respectively); and

in excess of 15,000 pages of documentary evidence tendered by the parties.

In this section of these reasons, I have summarised the substance of that evidence, together with relevant matters that are admitted on the pleadings. I have identified the material factual matters that are the subject of dispute between the parties. My findings in relation to those disputed matters are recorded in later sections of these reasons in which I consider and determine the parties’ claims and defences in the Sunnya proceedings and in the All168 proceedings.

The business of Sunnya in the period up to October 2018

As I have already mentioned, Sunnya’s business included the export of Australian and New Zealand-manufactured Neurio-branded formulated milk powder products. The Chinese market was Sunnya’s principal market for its Neurio-branded products, although it did sell some products in other markets, including in Australia and New Zealand.
GABT acted as Sunnya’s import agent in China from at least 2017. Their import agency arrangements did not involve a sale of the products from Sunnya to GABT. However, Sunnya had a practice of issuing tax invoices to GABT which specified a price per tin for the products exported. The He Parties describe the invoices as “commercial invoices” that were issued “for customs purposes”. The He Parties describe the price on the face of the invoices as an “export price”.
By mid-2018, Sunnya’s Neurio-branded products were manufactured, marketed and sold under one or more of the following trade marks:

neurio ; and

which, according to certified English translations, is the word “Neurio” in simplified Chinese characters. Those Chinese characters are pronounced “Niu Rui You”, with the first character (“Niu”) meaning “New”, the second character (“Rui”) meaning “fortunate” or “lucky”, and the third character (“You”) meaning “good” or “top quality”.

I will adopt the parties’ convention of referring to those trade marks as the modern Neurio trade marks.
In mid-2018, Sunnya was not the registered owner of the modern Neurio marks in Australia or elsewhere. Ms Lu was the registered owner in Australia of two different Neurio marks that were no longer in use.^[5] I will refer to those trade marks as the historical Neurio trade marks. As referred to later in these reasons, Sunnya registered the modern Neurio trade marks in Australia, New Zealand, and Indonesia in April 2019 for the classes of products relevant to these proceedings. Sunnya allowed the registration of the historical Neurio trade marks to lapse when they fell due for renewal in Australia in October 2021.^[6]
5. Registered trade mark numbers 1454093 and 1454096.
6. See [75]-[78] below.
Intellectual property searches tendered in these proceedings indicate that, since March 2020, GABT has been the registered owner in China of the first and third modern Neurio trade marks referred to above. Those trade marks were originally registered by Rui Ka Qi (Hangzhou) Health Technology Co Ltd (Rui Ka Qi) in August 2017, and were and assigned to GABT in March 2020. There is evidence that GABT regarded itself as the owner of those trade marks from at least June 2019.^[7] GABT remains the registered owner of those two trade marks, which I will refer to as the Chinese Neurio trade marks. There is no evidence that the neurio trade mark has been registered in China, but there is no evidence in these proceedings that the neurio trade mark is in use in China, Australia, New Zealand or elsewhere. It is the other two modern Neurio trade marks that appear on the packaging and marketing materials, photographs of which admitted into evidence in these proceedings. GABT is also the registered owner of the historical Neurio trade marks in China, but there is no evidence that those historical marks have been used in China at any time relevant to these proceedings.

Jatcorp’s acquisition of a majority shareholding in Sunnya in October 2018

7. See [80]-[81] below.

As I have already mentioned, Jatcorp entered into a Share Purchase Agreement on or about 13 June 2018 pursuant to which it agreed to purchase 51 per cent of the shares in Sunnya from Mr He and Ms Lu. Mr He and Ms Lu (as vendors) and Jatcorp (as purchasers) were the only parties to the Share Purchase Agreement.
The Plaintiffs rely on a six-page document which they contend recorded the nature of Sunnya’s business, its revenue, and its profitability at the time of the negotiations for Jatcorp’s acquisition of 51 per cent of Sunnya. The index to the documentary tender bundle prepared jointly by the parties attributes the date 1 April 2018 to the document. The document identified various infant formula and health food brands that Sunnya was exporting to China, or in relation to which Sunnya was acting as an export agent to China, or as a distributor in Australia. In relation to the Neurio brand, the document stated:^[8]

“Neurio brand
It is owned by Yanxia Lu in Australia, and owned by Guangzhou Aotea Biological Technology Pte Ltd in China. Currently, the ODM products including Nurio lactoferrin, DHA, and probiotics. The products have been sold to the Chinese market since April 2017, with the annual sales volume of about 210,000 AUD and profit of 31,500 AUD in 2017-2018. Sunnya is expected to make a profit of 90,000 AUD in 2018-2019, with the sales of Nurio reaching 600,000 AUD.”
8. In all quotations in these reasons, any spelling or grammatical errors are reproduced from the original. Where the original document is in Mandarin, the quotation in these reasons is from the certified English translation of the relevant document admitted into evidence in these proceedings.

The document recorded that Sunnya had earned revenue of AUD$3,581,776 and profit (before tax) of AUD$457,216 in 2017. For the 2018-2019 financial year, the document forecast that Sunnya would earn revenue of AUD$45,500,000 (of which AUD$600,000 was attributable to the Neurio-branded products) and profit of AUD$2,882,000 (of which AUD$90,000 was attributable to the Neurio-branded products).
On 23 May 2018, Mr He sent two emails to Mr Yao attaching various certificates for trade mark registrations in Australia and China. Insofar as the certificates related to Neurio, they included Australian trade mark registration certificates only for the historical Neurio trade marks that were no longer in use by mid-2018, as referred to at [51] above, and Chinese trade mark registration certificates for the same historical trade marks. The Australian certificates for those historical marks recorded Ms Lu as the registered owner from 24 August 2012, and the Chinese certificates recorded Guangzhou Aoeta Import and Export Trading Co Ltd (as GABT was then known) as the registered owner. The certificates were consistent with the information in the six-page document dated 1 April 2018 about the ownership of the Neurio brand.
On 23 May 2018, Mr Yao sent an email to Mr Brett Crowley attaching a document that Mr Yao had prepared as a summary of the “key points of Sunnya acquisition”. That document referred to the different product lines relevant to Sunnya’s business, including Neurio. In relation to Neurio, the document stated:

“Sunnya will have 100% right in both Australia and China after the acquisition completed. Products are currently selling in China.”

The evidence does not disclose the basis of the statement that Sunnya would have “100% right in both Australia and China” after the completion of Jatcorp’s acquisition of 51 per cent of Sunnya.
Clause 2 of the Share Purchase Agreement recorded the AUD$6,500,000 consideration payable by Jatcorp for 51 per cent of Sunnya, of which AUD$3,500,000 was to be satisfied by the issue of 35,000,000 shares in Jatcorp to Mr He and Ms Lu. Certain additional amounts were payable in the event that specified conditions were satisfied after completion.
Clause 5.3 of the Share Purchase Agreement provided: .

“(a)   On Completion, SUN must procure the appointments of:
(i)   Anthony Crimmins as a director of SUN and chairman with a casting vote; and
(ii)   Wilton Yao as an executive.

(b)   JAT agrees that Yanxia Lu will remain as CEO for three years and director of SUN. Her salary package will $100,000 per annum plus superannuation and reviewed annually, the first review to take place for the 12 months period commencing one year after Completion.
(c)   JAT agrees that Yinghan Le will remain as a Director of SUN. His salary package will $70,000 per annum plus superannuation and reviewed annually, the first review to take place for the 12 months period commencing one year after Completion.
(d)   The Vendors agrees that a representative of JAT will be employed on a salary package $70,000 per annum plus superannuation.”

The Share Purchase Agreement uses the abbreviations SUN to refer to Sunnya, and JAT to refer to Jatcorp. I infer that “Yinghan Le” in clause 5.3(c) is a typographical error and should read “Yinghan He”.
It appears that Jatcorp, Mr He and Ms Lu proceeded on the common understanding that Jatcorp’s entitlement under clause 5.3 to have Mr Yao appointed as an “executive” of Sunnya was an entitlement to have him appointed as a director of the company.^[9]
9. See [32] above.
Completion was to occur five days after satisfaction of certain conditions precedent set out in clause 3.1 of the Share Purchase Agreement, including the parties obtaining shareholder approval and all other approvals required for the transaction, and Mr He and Ms Lu each entering into an employment agreement with Sunnya on terms suitable to Jatcorp.
Clause 4.1 of the Share Purchase Agreement required Mr He and Ms Lu to cause Sunnya’s business to be carried on in the usual and ordinary manner until completion or termination of the agreement. Without limiting the generality of that obligation, clause 4.2(a) provided that Mr He and Ms Lu would cause Sunnya’s business to continue to own and carry on a list of specific operations before and after completion, including:

“(a) the right to sell Neurio -Health products in Australia and China, including any further registered infant formula”

Although Sunnya was in fact selling Neurio-branded products in China by June 2018 using the modern Neurio trade marks, Sunnya was not the registered owner of any Neurio trade mark in China. GABT was the registered owner of the historical Neurio trade marks in China, and would later become the registered owner of the modern Neurio trade marks in China as Rui Ka Qi’s assignee. Sunnya exported its Australian and New Zealand manufactured Neurio-branded products to China, and distributed and sold those products in China, under a cooperation relationship with GABT, which I refer to in more detail below.
Clause 6.1 of the Share Purchase Agreement relevantly provided that Mr He and Ms Lu represented, warranted and undertook in favour of Jatcorp that each of the “Vendor’s Warranties” set out in Schedule 2 to the agreement is accurate and not misleading, and will be accurate and not misleading for each day up to and including completion. The Vendor’s Warranties related to Sunnya’s corporate existence and ability to own assets and carry on business, Sunnya’s employees, Sunnya’s accounts and compliance with its taxation obligations, the “Assets”, and legislative compliance, litigation, and solvency. The term “Assets” was defined as including goodwill, but was not defined as including trade marks or other intellectual property, or licences or other rights to use any trade marks or other intellectual property.
Clause 10 of the Share Purchase Agreement provided for each shareholder to have a right of first refusal to purchase the shares of any other shareholder wishing to transfer those shares to another party. Compliance with that right of first refusal process is the only restriction on a shareholder transferring their shares in Sunnya. The Share Purchase Agreement does not require the transferring shareholder to procure any purchaser to enter into a deed acceding to the Share Purchase Agreement.
On 13 June 2018, Jatcorp announced its acquisition of 51 per cent of Sunnya to the ASX. The announcement stated:

“The Board of Jatenergy Limited (JAT) is pleased to announce that it has agreed, subject to shareholder approval, to purchase a controlling 51% interest in Sunnya Pty. Ltd (Sunnya), an Australian exporter with a portfolio of milk powders and health products currently selling in China.
‘The acquisition of Sunnya will broaden our in-house product range substantially,’ JAT Executive Director Wilton Yao said. ‘We see great potential, combining Sunnya products and JAT distribution capacity. These products are already selling into China and we will boost their sales by combining our own Chinese online platforms and offline distribution channels.’
Sunnya has developed branded product ranges for health, maternal and baby markets in China. Key product ranges include:
a) NEURIO – Lactoferrin Milk Powder, DHA Algae Oil Softgel, and Probiotics Liquid, primarily selling in maternal and baby stores and local supermarkets;
b) RAICARE Goat Premium Infant Formula …”

After referring to Sunnya’s 2017 revenue of AUD$3,581,776 and profit of AUD $457,216, the announcement stated that:

“The Directors of JAT and Sunnya are confident that, working together the businesses will achieve significantly higher growth rates and profitability. The acquisition is expected to result in JAT achieving significant and constant cashflow.”

On 18 June 2018, Ms Lu signed a “Trademark Transfer Agreement”, which recorded that Ms Lu was the owner of the Neurio trade marks in Australia, and that she agreed to transfer those trade marks to Sunnya for no monetary consideration, subject to Ms Lu reserving “the right to reclaim the Neurio trademarks at any time or designate another party”, in which case the agreement provided that Sunnya must “transfer the trademarks back unconditionally” for no monetary consideration.^[10] Mr He signed the agreement on behalf of Sunnya. The Trademark Transfer Agreement dated 18 June 2018 was submitted to IP Australia, and registration of the historical Neurio trade marks was duly transferred to Sunnya. The utility of the transfer is unclear, given that those trade marks were no longer in use by June 2018. As stated at [51] above, Sunnya did not renew the registration of those trade marks when they fell due for renewal in October 2021.
10. Certified English translation.
The general meeting of Jatcorp to approve its acquisition of 51 per cent of Sunnya was convened for August 2018. In the meantime, Jatcorp entered into arrangements to purchase Neurio-branded products from Sunnya, which Jatcorp then contracted to sell to third parties for ultimate retail sale to customers in China. These arrangements were the subject of various ASX announcements made by Jatcorp during June 2018. On 4 July 2018, Jatcorp made an ASX announcement that JD Global had approved the sale of Sunnya’s Neurio-branded range of products to Chinese consumers on JD Global’s online cross-border and supermarket platforms. The announcement described JD Global as China’s largest retailer by revenue.
The terms of those announcements state that the arrangements were negotiated by Jatcorp utilising its existing distribution networks, and significantly increased the sales of Neurio-branded products. For example, Jatcorp’s announcement on 26 June 2018 stated that it had entered into a distribution agreement under which the distributor, Cyclone E-Commerce Co Ltd, had agreed to purchase 300,000 tins of Neurio-branded products from Jatcorp over the next twelve months at the best market price, which was expected to bring in revenue of AUD$7,500,000. The forecast revenue from that agreement alone represented many multiples of the revenue of AUD$600,000 that Sunnya had forecast from the sale of Neurio-branded products for 2018-2019 prior to Jatcorp’s acquisition of 51 per cent of Sunnya.^[11]
11. See [55] above.
The Share Purchase Agreement was completed on 10 October 2018.
Jatcorp directors Mr Yao and Mr Crimmins were appointed as directors of Sunnya on completion of the Share Purchase Agreement. As I have already mentioned, Mr He and Ms Lu remained as directors of Sunnya, and were also employed by Sunnya. From about July 2020, the annual value of their remuneration packages was approximately AUD $200,000 each, plus superannuation.

Registration of modern Neurio trade marks from April 2019

On 17 April 2019, Sunnya applied for registration of the three modern Neurio trade marks in Australia for class 5 products (including milk powder for foodstuffs for babies, powdered milk foods for infants, and mineral preparations for use as nutritional additives to foodstuffs for humans), class 29 products (including foods made from milk products), and class 30 products (including instant powder for making coffee-based, tea-based or cocoa-based drinks). Sunnya was registered as the owner of those trade marks in relation to those classes of products on 7 January 2020, with effect from the filing date of 17 April 2019. IP Australia allocated the following registration numbers to the trade marks for classes 5, 29 and 30 (the Australian Neurio trade marks):

– registration number 2003876;

neurio – registration number 2003877; and

registration number 2003878.

On 1 June 2021, Sunnya filed for registration of the Australian Neurio trade marks in Australia for additional classes of products, being various kinds of alcoholic beverages. Sunnya was registered as the owner of those trade marks in respect of those additional classes on 11 January 2022, with effect from the filing date of 1 June 2021. Different registration numbers were assigned by IP Australia for each of those marks in respect of the alcoholic beverages classes of products.^[12] There is no evidence that the Australian Neurio trade marks have ever been used in connection with alcoholic beverages.
12. Registration numbers 2183059, 2183060 and 2183061.
On 20 February 2020, Sunnya applied in New Zealand for registration of the modern Neurio trade mark – – in respect of class 29 products and class 30 products. Sunnya became registered as the owner of that trade mark in New Zealand on 21 August 2020, with effect from the filing date of 20 February 2020, with registration numbers 1141429 (for class 29 products) and 1141430 (for class 30 products). On 11 September 2020, Sunnya applied in New Zealand for registration of the same trade mark in respect of class 5 products. Sunnya became registered as the owner of that trade mark in New Zealand on 12 March 2021, with effect from the filing date of 11 September 2020, with registration number 1158888. It is convenient to refer to these three registered trade marks collectively as the New Zealand Neurio trade marks.
On 20 February 2020, Sunnya also applied for registration of the trade mark in Indonesia. Sunnya became the registered owner of that trade mark in Indonesia on 14 July 2021 with protection from 20 February 2020, with registration number IDM000872371. It is not clear from the evidence which classes of products are covered by this registration. It is convenient to refer to this trade mark as the Indonesian Neurio trade mark.
According to Mr Wang’s evidence, the key trade marks that Sunnya and its agents have utilised in China include the Australian Neurio trade marks and the New Zealand Neurio trade marks. As I have already explained GABT is the registered owner of those trade marks in China.
The evidence tendered in these proceedings includes a document entitled “Letter of Statement” that Mr Wang located amongst Sunnya’s books and records. The document states:^[13]

“This is to certify that Guangzhou Aotea Biological Technology PTE Ltd, owner of the trademark ‘Niu Rui You’ and Sunnya Pty Ltd, Australian owner of the trademark Neurio, are in a cooperation relationship. Also, Guangzhou Aotea Biological Technology PTE Ltd is taking steps to transfer the trademark in China to Sunnya Pty Ltd.”
13. Certified English translation.

The “Letter of Statement” has no addressee. It bears the date 17 June 2019, and appears to have been signed by Mr Lu under the seal of GABT, and by a director of Sunnya under the seal of Sunnya.
By the time of the hearing, Sunnya had abandoned its contention that the “Letter of Statement” entitled Sunnya to have the Chinese Neurio trade marks transferred to it. Contrary to the representation in the “Letter of Statement”, there is no evidence that GABT took any steps to transfer those trade marks to Sunnya at any time. I infer that the “Letter of Statement” was signed for the purpose of persuading Chinese e-commerce platform operators that GABT had authorised the use of the Neurio trade mark on Sunnya’s Australian and New Zealand-manufactured products that were marketed and sold through those e-commerce platforms in China, as explained in Mr Zhang’s evidence referred to at [177]-[180] below.
In their written submissions relating to the All168 proceedings filed and served after the conclusion of the hearing (with leave), the Plaintiffs asserted that they do not accept that GABT owns the Chinese Neurio trade marks. There is abundant documentary evidence tendered in these proceedings that GABT is, and was at the time of the events giving rise to these proceedings, the registered owner of those Chinese trade marks. The Plaintiffs did not adduce any evidence capable of supporting a finding that GABT holds those trade marks on behalf of or for the benefit of Sunnya. Nor did the Plaintiffs claim any declaratory or other relief in respect of any alleged interest of Sunnya in the Chinese Neurio trade marks. The hearing was conducted on the basis that GABT has been the registered owner of the Chinese Neurio trade marks at all relevant times, and remains the registered owner of those trade marks, whilst Sunnya has been the registered owner of the Australian and New Zealand Neurio trade marks at all relevant times.

There is no direct evidence of the terms of the cooperation relationship between GABT and Sunnya to which I have referred at [65] above. There is no evidence that the relationship imposed on GABT any binding obligation to facilitate Sunnya’s distribution and sale of Neurio-branded products in China. Nor is there any evidence of any right for Sunnya to require GABT to facilitate those activities. However, it is plain that the export of Sunnya’s Australian and New Zealand manufactured Neurio-branded products to China was a significant part of Sunnya’s business, and that GABT did in fact facilitate the distribution and sale of those products in China until October 2022. It was not submitted that the cooperation relationship gave rise to any fiduciary duties owed by GABT to Sunnya, or by Sunnya to GABT.

Day-to-day management and control of Sunnya after Jatcorp’s acquisition of its majority shareholding

As referred to earlier in these reasons, Mr Zhang began working for Sunnya as its General Manager from about 1 December 2019 – a little more than one year after the completion of Jatcorp’s acquisition of its 51 per cent shareholding in Sunnya. At that time, Mr He and Ms Lu were the only other people working at Sunnya. Sunnya employed Ms Ruolei Chen (also known as Cassie Lei) as an accountant from about March 2020. Ms Chen took over responsibility for accounting work that had previously been undertaken for Sunnya by a Ms Nicole Fei. As I have already mentioned, Ms He was employed in marketing and media roles from about 15 May 2020.
Mr Zhang continued in the role of General Manager of Sunnya until about June 2022, when he resigned in order to care for a family member.
Mr Zhang’s responsibilities as General Manager included managing Sunnya’s sales channels.
Mr Zhang gave evidence that Mr He and Ms Lu were in control of the day-to-day management of Sunnya from the commencement of his employment in December 2019 until his resignation in June 2022. When Mr Zhang had questions about the operation of Sunnya, he asked Mr He or Ms Lu. When Mr Zhang required permission for matters relating to Sunnya, he sought that permission from Mr He or Ms Lu.
Ms Chen gave evidence to similar effect. From the time that she commenced her employment with Sunnya in March 2020 until October 2022, Ms Chen reported directly to Mr He and Ms Lu. Ms Chen looked to Mr He and Ms Lu to authorise payments that she processed on behalf of Sunnya. Mr He and Ms Lu provided directions to Ms Chen in relation to her accounting work. Ms Chen did not take directions from any other officer or employee of Sunnya. Ms Chen deposed that, to her observation, Mr He and Ms Lu controlled the day-to-day operations of Sunnya. Ms Chen continues to be employed by Sunnya as an accountant.
The documentary evidence in these proceedings does not include minutes of any Sunnya board meetings prior to October 2022. It appears that Jatcorp may have monitored Sunnya’s affairs informally through its Chief Executive Officer, Mr Yao, rather than through meetings of Sunnya’s board of directors. The documentary evidence includes many communications between Mr He and/or Ms Lu and Mr Yao in relation to Sunnya’s business, including in the period after Mr Yao ceased to be a director of Sunnya in April 2020.

Manufacture of Sunnya’s Neurio-branded products

As I have already mentioned, Sunnya engaged third parties in Australia and New Zealand to manufacture the Neurio-branded formulated milk powder products that Sunnya exported to China.
From about May 2020, Sunnya engaged Supermega to supply its Neurio-branded products, and Supermega procured its related company Megadairy to manufacture those products. Mr Wu gave evidence to the effect that this was the outcome of discussions that had commenced in 2015, which had resulted in Supermega entering into two written agreements with GABT and Sunnya on 9 June 2015 and 9 July 2019.
According to Mr Wu, Supermega, GABT and Sunnya entered into a “Production Sales and Confidentiality Agreement” on 9 June 2015 that he drafted after discussions with Mr Lu. The document is in the following terms:^[14]
14. Certified English translation.

“Background: Guangzhou Aotewa Biotechnology Co., Ltd. and Australia Sunnya Pty Ltd are two of the holders of the corresponding trademarks for the ‘Neurio’ and ‘Neurio’ brands around the world respectively. In, the future, corresponding local, companies will be established in New Zealand, Europe, Asia and the Americas by similar teams to manage the brands and product sales.
Supermega Market limited and its associated production companies will in future be responsible for the production of a large number of ‘Neurio’ and ‘neurio’ products. These products can be ordered by Guangzhou Aotewa Biotechnology Co. Ltd., Australia Sunnya pty Ltd., and the corresponding companies in other parts of the world. Supermega then exports the products to the relevant countries, where the local companies are responsible for sales. For example, if an order is placed by the company in China, Supermega sells the product to the Chinese company. If an order is placed by the company in Australia, Supermega sells the product to the Australian company. And so on for other countries.
When Supermega sells products to Guangzhou Aotewa Biotechnology Co., Ltd. in China, all receipts, shipments, documents and related information shall be provided to Guangzhou Otiva Biotechnology Co. Ltd. only and shall not be disclosed to other companies.
When Supermega sells products to Australia Sunnya pty Ltd,. Australia, all receipts, shipments, documents and related information shall be provided to Australia Sunnya pty Ltd. only and shall not be disclosed to other companies.
And so on for other countries.
Failure by Supermega to comply with this agreement may result in the following risks for the management and distribution companies of the Neurio and Neurio brands worldwide, including but not limited to:
1.    Information overload, not easy for companies to manage. Each company should only receive and keep information about their own products.
2.    If Supermega sends an error message, then all corresponding companies in the world will receive the error message.
3.    Payment confusion. Supermega overcharges or undercharges and companies in different countries may overpay or underpay.
4.    Quality risk. If there is a quality problem and a recall is necessary, it needs a global recall not a single regional recall.
5.    Other risks.
Supermega and its manufacturers must therefore strictly adhere to this agreement to ensure that the risks to ‘Neurio’ and ‘Neurio’ worldwide are minimised.
This agreement is valid for a long time unless all three parties agree to abrogate it.”

In his affidavit affirmed on 15 September 2023, Mr Wu gave evidence that he received an email from Mr Lu on 12 June 2015 attaching a copy of the Production Sales and Confidentiality Agreement signed on behalf of GABT and Sunnya. Mr Wu deposed that he did not know at the time who had signed the document on behalf of Sunnya, and that he assumed that Mr Lu had arranged for the appropriate signatories to sign on behalf of Sunnya. The document appears to have been signed by Ms Lu on behalf of Sunnya. However, Ms Lu stated in her affidavit affirmed on 16 November 2023 that the document “has on it an electronic signature for me which I would not have put on the document and I did not authorise anybody to put on the document”. The Plaintiffs tendered that statement as an admission. Mr Wu exhibited to his affidavit a copy of the email that he says he received from Mr Lu, together with its attachment (and a certified translation of the email and the attachment). The email bears the date and time 12 June 2015 at 1.10pm.
At the time when Mr Wu says this document was signed in June 2015, Supermega was not manufacturing any products for GABT or Sunnya. According to Mr Wu, he did not even expect in June 2015 that Supermega would receive orders from GABT or Sunnya in the foreseeable future, because Supermega did not have sufficient manufacturing capacity.
Mr Wu acknowledged that it was unusual to enter into an arrangement of this kind, but gave evidence that both he and Mr Lu “thought that it was a good idea to do so in this situation because of the involvement of two buyers for the same brand”. Mr Wu could not recall whether the idea originated with him, or with Mr Lu. Mr Wu gave evidence that it was his understanding at this time that Mr Lu “was in ultimate control of the ‘Neurio’ brand and was the decision maker for making purchase orders”. Mr Wu understood based on his discussions with Mr Lu that “Sunnya was effectively the Australian branch of GABT or perhaps something like a franchise”. However, Mr Wu gave evidence that he did not have any detailed conversations with Mr Lu about the timing or purpose of the establishment of Sunnya, and he did not consider the issue carefully or make further inquiries about it.
Mr Wu gave evidence that, after signing the Production Sales and Confidentiality Agreement in June 2015, he spoke to Mr Lu via WeChat about once a year until July 2019, when Mr Wu says that GABT and Sunnya signed the “Brand OEM Authorized Letter” referred to below. Mr Wu gave evidence that he informed Mr Lu about his manufacturing capacity at the time and invited him to place orders, and Mr Lu indicated that he would place orders “but not just yet”.
According to Mr Wu’s evidence, the Chinese market expects that lactoferrin formulated milk powder products will be sold in tins, with individual portions in correct dosages packaged in sachets inside the tin. By 2019, Megadairy had developed the capacity to manufacture formulated powder products packaged in sachets. Mr Wu gave evidence that Mr Lu introduced him to Ms Lu at about this time, and that Ms Lu in turn introduced Mr Wu to Mr He. Ms Lu told Mr Wu that she wanted Sunnya to place product orders with Mr Wu’s companies. All of these communications occurred via WeChat.
Mr Wu gave evidence that he received an email sent by Mr Lu to a Supermega email account on 9 July 2019, which attached a signed letter in English in the following terms:

“Brand OEM Authorized Letter
Authorized brand or Trademark:
‘Neurio’
Authorizer party
Guangzhou Aotea Biological Technology Pte Ltd (China)
Sunnya pty ltd (Aus)
And other companies run by above companies for other countries e.g. NZ
Authorized party
Supermega market liited.
Megadairy limited
And other companies run by above companies for other products e.g. drops and soft gel
Authorization term 08/07/2019 to 08/07/2025
Authorized content: product development, formulating, manufacturing, packing, exporting
Authorized area: Manufacturing in New Zealand and exporting
Authorization date: 08/07/2019
Next renewal date: 08/07/2025”

In his affidavit affirmed on 15 September 2023, Mr Wu gave evidence that, at this time and during his subsequent dealings with GABT and Sunnya, “my understanding was that GABT was the primary company and held the registrations for the Chinese Neurio trade marks, and that Sunnya held the registrations for the Australian and New Zealand Neurio trade marks, but I did not check the position”. Mr Wu deposed that he noted that the letter referred to both GABT and Sunnya, but deposed that he “did not discuss with any of Mr Lu, Daisy Lu, Mr He, or anyone else, whether any agreement existed between GABT and Sunnya”. It is difficult to make sense of that evidence, in light of Mr Lu’s evidence in the same affidavit that GABT and Sunnya were both parties to the Production Sales and Confidentiality Agreement that Mr Wu says was drafted by him and signed on 9 June 2015.^[15]
15. See [93] above.
Mr Wu gave evidence that, after July 2019, he had many discussions with Mr He about the technical and commercial aspects of manufacturing the Neurio products before Sunnya began placing orders with Supermega in about May 2020.
The Plaintiffs dispute the authenticity of the Production Sales and Confidentiality Agreement and the “Brand OEM Authorized Letter” referred to at [93]-[94] and [99] above.
Mr Wu’s evidence about each of those documents is inconsistent with an affidavit that he affirmed for the purpose of these proceedings on 1 March 2023, which the Plaintiffs tendered on a limited basis. In that affidavit, Mr Wu deposed that:

“I am not aware of what arrangements, if any, there are between GABT and Sunnya. However, to my mind, neither Supermega nor Sunnya could lawfully produce, export, or sell Neurio products to China without the authorisation of GABT (as the registered trademark holder of the Neurio brand in China), and without the distribution channel of [GNT].”

That is inconsistent with Mr Wu’s evidence in his affidavit affirmed on 15 September 2023 that: (1) he had drafted, and Supermega, GABT and Sunnya had entered into, the Production Sales and Confidentiality Agreement, which provided, amongst other things, that Supermega would, in the future, produce a large volume of Neurio-branded products, which could be ordered by GABT and also by Sunnya;^[16] and (2) he had received the Brand OEM Authorized Letter signed by GABT and Sunnya on 9 July 2019, which stated that Supermega and Megdairy were authorised to manufacture Neurio-branded products in New Zealand and to export those products.^[17] Irrespective of whether the terms of those documents (if they are genuine) are read as permitting Supermega to export to China Neurio-branded products manufactured for Sunnya in New Zealand, or whether they are read as merely permitting Supermega to export such products to Sunnya in Australia, the documents (if they are genuine) constitute arrangements between GABT and Sunnya of which Mr Wu claims to have been aware in his 15 September 2023 affidavit.
16. See [93] above.
17. See [99] above.
Mr Whitbourn undertook a forensic analysis of the email that Mr Wu says he received from Mr Lu on 12 June 2015 attaching the signed Production Sales and Confidentiality Agreement referred to at [93] and [94] above. The process of analysis, and Mr Whitbourn’s opinions based on that analysis, are set out in his second report dated 26 October 2023, which was tendered by the Plaintiffs without objection.
Mr Whitbourn gave evidence that the email conforms to the Internet Message Format (or “IMF”), and was sent using the Simple Mail Transport Protocol (or “SMTP”). The email therefore contains headers that can be analysed to reveal information about the origination and transmission of the email between the sender and recipient. These headers includer sender, recipient, sent date, received date, and trace headers. Trace headers describe the traversal of emails sent with SMTP between origination and their destination. Received trace header fields are added by SMTP servers as they receive an email enroute to its destination, with a timestamp recording the date and time of receipt by that server. Other kinds of trace headers added by SMTP servers include authentication operations performed by the server to verify the source of the email and avoid malicious sources of email. Some such trace headers also include timestamps recording the date and time that the server performed the operation. Some timestamps within trace headers are typical, human-readable dates and times. Others are Unix timestamps, which are recorded inside trace headers as internal file metadata dates, and so are not human-readable without the requisite expertise and programs to access and interpret that metadata. Unix is a particular form of date and time representation used in computing that measures time by the number of seconds that have elapsed since 00:00:00 UTC on 1 January 1970. I understand “UTC” to be a reference to Coordinated Universal Time.
Mr Whitbourn gave evidence that trace headers can be used to identify the dates and times when an email has interacted with an SMTP server between its origination and its destination. As trace headers are prepended sequentially after an email is originated or sent, the timestamps are chronological from the earliest to the latest date and time on which the email has interacted with an SMTP server. If an email contains trace header timestamps that are chronologically inconsistent – that is, if they go backwards and forwards in time, either within the trace headers or when compared with the sent date – then it is not possible to definitively determine the date and time of the origination of the email.
Mr Whitbourn used a program known as Forensic Email Intelligence (or “FEI”), which provides an interface for analysing email header and trace header information, to review email headers and trace headers in the email that Mr Wu says he received from Mr Lu on 12 June 2015 attaching the signed Production Sales and Confidentiality Agreement referred to at [93] and [94] above. Mr Whitbourn’s analysis revealed the following trace header information:

REF

Header

Timestamp

Timestamp (UTC +0)

1

Sent Date

Fri, 12 Jun 2015 11:10:34 +0800

12/06/2015 03:10:34

2

DKIM Signature

1679823095

26/03/2023 09:31:35

3

Received

2015.06.11.20.11.40

12/06/2015 03:11:40

4

Received

Thu, 11 Jun 2015 20:10:42 -0700 (PDT)

12/06/2015 03:10:42

5

ARC Seal

1679823102

26/03/2023 09:31:42

6

X-Received

1679823102680

26/03/2023 09:31:42

7

X-Received

Thu, 11 Jun 2015 20:10:42 -0700 (PDT)

12/06/2015 03:10:42

8

Received Date

Thu, 11 Jun 2015 20:10:43 -0700 (PDT)

12/06/2015 03:10:43

Mr Whitbourn gave evidence that the timestamps marked as references 1, 3, 4, 7 and 8 in the table above are human-readable timestamps, whereas the timestamps marked as references 2, 5 and 6 in the table are Unix timestamps. As shown in the table, all human-readable timestamps correspond to between UTC 03:10:34 and 03:11:40 on 12 June 2015, whereas the Unix timestamps correspond to between UTC 9:31:35 and 9:31:42 on 26 March 2023.
Mr Whitbourn opined that there are three indicia of manipulation of the date of creation or origination of the email that Mr Wu says he received on 12 June 2015:

the non-chronological order of the trace header timestamps, which jump multiple times backwards and forwards between dates in 2015 and 2023;

the fact that the human-readable dates are 2015 dates, whereas the Unix timestamps that require technical knowledge to recognise and interpret are 2023 dates; and

the signed Production Sales and Confidentiality Agreement which Mr Wu says was attached to the email is a pdf document that Mr Whitbourn’s forensic analysis revealed was created on 23 March 2023, more than seven years after the human-readable sent date timestamp on 12 June 2015.

Although Mr Whitbourn reported that he could not definitively determine when the email was sent and received due to the non-chronological trace header timestamps, he opined that the three 26 March 2023 Unix timestamps suggest that the email was in fact sent on 26 March 2023.
Mr Whitbourn also undertook a forensic analysis of an electronic copy of the email that Mr Wu says was received to a Supermega email account on 9 July 2019 with the attached Brand OEM Authorized Letter referred to at [99] above. Those electronic copies of the email and attachment formed part of the NZ Parties’ discovery in these proceedings. Mr Whitbourn’s process of analysis, and his opinions formed on the basis of that analysis, are set out in his third report dated 28 November 2023, which was tendered by the Plaintiffs without objection.
Mr Whitbourn’s analysis of the email revealed the following trace header information:

REF

Header

Timestamp

Timestamp (UTC +0)

1

Sent Date

9 Jul 2019 11:10:48 +0800

9/7/2019 3:10:28

2

X-QQ-MID

Webmail327t1679812669t8010663

26/3/2023 06:37:49

3

DKIM Signature

1679812670

26/3/2023 06:37:50

4

Received

8 Jul 2019 20:10:51 -0700

9/7/2019 3:10:51

5

Received

2019.07.08.20.10.50

9/7/2019 3:10:50

6

ARC Seal

1679812671

26/3/2023 06:37:51

7

X-Received

8 Jul 2019 20:10:48 -0700

9/7/2019 3:10:48

8

X-Received

1679812671556

26/3/2023 06:37:51

9

Received Date

8 Jul 2019 20:10:48 -0700

9/7/2019 3:10:48

DECLARE that the third defendant was involved in each of the contraventions referred to in (15) and (16) above within the meaning of s 79 of the Corporations Act 2001 (Cth).

DECLARE that the first defendant breached his fiduciary duties owed to first plaintiff by his conduct referred to in (15) above.

DECLARE that the second defendant breached her fiduciary duties owed to the first plaintiff by her conduct referred to in (16) above.

DECLARE that the third defendant knowingly received Australian registered trade marks 2003876, 2003877, 2003878, 2183059, 2183060 and 2183061 within the meaning of the first limb of the rule in Barnes v Addy on or about 31 October 2022 for the period until GABT transferred those trade marks to the first plaintiff in accordance with the interim orders made by this Court on 10 November 2022.

ORDER that the first and second defendants are restrained from taking any future step to transfer away from the first plaintiff any of the following trade marks:

Australian registered trade marks 2003876, 2003877, 2003878, 2183059, 2183060 and 2183061;

Indonesian registered trade mark IDM000872371; and

New Zealand registered trade marks 1141429, 1141430 and 1158888.

DECLARE that the first defendant breached fiduciary duties that he continued to owe to the first plaintiff following his resignation as a director on 25 November 2022 by:

requesting the registration of the NRIO trade mark in Australia and New Zealand by the fifth defendant;

encouraging or endorsing the registration of the NRIO trade mark in China by the third defendant;

encouraging or endorsing the manufacture and supply by the eighth and ninth defendants of NRIO-branded sachets of formulated milk powder products to Shanghai Gainful for ultimate supply to the third defendant;

encouraging or endorsing the third defendant’s packaging of those NRIO-branded sachets in tins bearing the Neurio and NRIO brands, and the marketing and sale of those tins in China as new or upgraded versions of the Neurio brand of Australian and New Zealand-manufactured formulated milk powder products;

encouraging or endorsing the resulting association of the NRIO brand with the established Neurio brand;

by the conduct in (a) to 849(1)(e) above, diverting to the third defendant the first plaintiff’s business of marketing and selling Australian and New Zealand-manufactured Neurio-branded formulated milk powder products in China, by excluding the first plaintiff from any ongoing role in that business which it had carried on using its rights as the registered owner of the Australian and New Zealand Neurio trade marks (in cooperation with the third defendant until 21 October 2023).

ORDER that the first defendant is restrained from taking any steps to manufacture any NRIO-branded products in Australia or New Zealand, or to market, sell, distribute or export any such products.

ORDER that the first defendant is restrained from taking any steps to manufacture in Australia or New Zealand any other products that are to be sold to ultimate consumers in China in packaging bearing the Neurio brand, or to market, sell, distribute or export any such products, to or for any person other than the first plaintiff or persons authorised by the first plaintiff.

ORDER that the first defendant:

pay equitable compensation to the first plaintiff for loss suffered by reason of the first defendant’s breaches of fiduciary duty referred to in (22) above, in an amount to be determined at a subsequent hearing; or

account to the first plaintiff for any benefit or gain obtained or received by the first defendant by reason of his breaches of fiduciary duty referred to in (22) above,

at the plaintiffs’ election.

DECLARE that the second defendant breached fiduciary duties that she continued to owe to the first plaintiff following her resignation as a director on 25 November 2022 by:

encouraging or endorsing the registration of the NRIO trade mark in Australia and New Zealand by the fifth defendant;

encouraging or endorsing the registration of the NRIO trade mark in China by the third defendant;

procuring or requesting the manufacture and supply by the eighth and ninth defendants of NRIO-branded sachets of formulated milk powder products to Shanghai Gainful for ultimate supply to the third defendant;

encouraging or endorsing the third defendant’s packaging of those NRIO-branded sachets in tins bearing the Neurio and NRIO brands, and the marketing and sale of those tins in China as new or upgraded versions of the Neurio brand of Australian and New Zealand-manufactured formulated milk powder products;

encouraging or endorsing the resulting association of the NRIO brand with the established Neurio brand;

by the conduct in (a) to 849(5)(e) above, diverting to the third defendant the first plaintiff’s business of marketing and selling Australian and New Zealand-manufactured Neurio-branded formulated milk powder products in China, by excluding the first plaintiff from any ongoing role in that business which it had carried on using its rights as the registered owner of the Australian and New Zealand Neurio trade marks (in cooperation with the third defendant until 21 October 2023).

ORDER that the second defendant is restrained from taking any steps to manufacture any NRIO-branded products in Australia or New Zealand, or to market, sell, distribute or export any such products.

ORDER that the second defendant is restrained from taking any steps to manufacture in Australia or New Zealand any other products that are to be sold to ultimate consumers in China in packaging bearing the Neurio brand, or to market, sell, distribute or export any such products, to or for any person other than the first plaintiff or persons authorised by the first plaintiff.

ORDER that the second defendant:

pay equitable compensation to the first plaintiff for loss suffered by reason of the second defendant’s breaches of fiduciary duty referred to in (26) above, in an amount to be determined at a subsequent hearing; or

account to the first plaintiff for any benefit or gain obtained or received by the second defendant by reason of her breaches of fiduciary duty referred to in (26) above,

at the plaintiffs’ election.

DECLARE that, from May 2023, the fifth defendant knowingly assisted the breaches of fiduciary duty by the first and second defendants in (22) and (26) within the meaning of the second limb of Barnes v Addy by participating in the marketing and sale of Neurio/NRIO branded formulated milk powder products in China.

ORDER that the fifth defendant is restrained from taking any steps to market or sell any Australian or New Zealand-manufactured NRIO-branded products.

ORDER that the fifth defendant is restrained from taking any steps to market or sell any other Australian or New Zealand-manufactured products that are to be sold to ultimate consumers in China in packaging bearing the Neurio brand, to or for any person other than the first plaintiff or persons authorised by the first plaintiff.

ORDER that the fifth defendant:

pay equitable compensation to the first plaintiff for loss suffered by reason of the fifth defendant’s knowing assistance in the breaches of fiduciary duty referred to in (22), (26) and (30) above, in an amount to be determined at a subsequent hearing; or

account to the first plaintiff for any benefit or gain obtained or received by the fifth defendant by reason of its knowing assistance in the breaches of fiduciary duty referred to in (22), (26) and (30) above,

at the plaintiffs’ election.

DECLARE that the third defendant knowingly assisted the breaches of fiduciary duty by the first and second defendants referred to in (22) and (26) above within the meaning of the second limb of Barnes v Addy by:

applying to register the NRIO trade mark in China;

purchasing or taking delivery of NRIO-branded sachets of formulated milk powder products manufactured in New Zealand by the ninth defendant;

packaging those NRIO-branded sachets in tins bearing the Neurio and NRIO brands, and marketing and selling those tins in China as new or upgraded versions of the Neurio brand of Australian and New Zealand-manufactured formulated milk powder products, and thereby causing the NRIO brand to become associated with the established Neurio brand;

by the conduct in (a) to (c) above, diverting to itself the first plaintiff’s business of marketing and selling Australian and New Zealand-manufactured Neurio-branded formulated milk powder products in China, by excluding the first plaintiff from any ongoing role in that business which the first plaintiff had carried on using its rights as the registered owner of the Australian and New Zealand Neurio trade marks (in cooperation with the third defendant until 21 October 2023).

ORDER that the third defendant is restrained from taking any steps to manufacture any NRIO-branded products in Australia or New Zealand, or to market, sell, distribute or export any such products.

ORDER that the third defendant is restrained from taking any steps to manufacture in Australia or New Zealand any other products that are to be sold to ultimate consumers in China in packaging bearing the Neurio brand, or to market, sell, distribute or export any such products, to or for any person other than the first plaintiff or persons authorised by the first plaintiff.

ORDER that the third defendant:

pay equitable compensation to the first plaintiff for loss suffered by reason of the third defendant’s knowing assistance in the breaches of fiduciary duty referred to in (22), (26) and (34) above, in an amount to be determined at a subsequent hearing; or

account to the first plaintiff for any benefit or gain obtained or received by the third defendant by reason of its knowing assistance in the breaches of fiduciary duty referred to in (22), (26) and (34) above,

at the plaintiffs’ election.

DECLARE that, by its conduct referred to in (34) above during the period up to and including 10 March 2023 when the first defendant ceased to be a shareholder of the third defendant, the third defendant acted in concert with the first and second defendants to secure the mutual benefit of the diversion to the third defendant of the business referred to in (34)(d) above.

DECLARE that the third defendant is therefore jointly and severally liable with the first and second defendants to:

pay equitable compensation to the first plaintiff for loss suffered by reason of the first and second defendants’ breaches of fiduciary duty referred to in (22) and (26) above in the period up to 10 March 2023, in an amount to be determined at a subsequent hearing; or

account to the first plaintiff for any benefit or gain obtained or received by reason of the first and second defendants’ breaches of fiduciary duty referred to in (22) and (26) above in the period up to 10 March 2023,

at the plaintiffs’ election.

DECLARE that the eighth defendant knowingly assisted the breaches of fiduciary duty by Mr He and Ms Lu referred to in (22) and (26) above within the meaning of the second limb of Barnes v Addy in the period from December 2022 by contracting to supply, and by supplying, New Zealand-manufactured NRIO-branded sachets of formulated milk powder with the knowledge that those sachets would be marketed and sold in China in tins bearing the Neurio and NRIO brands.

ORDER that the eighth defendant is restrained from taking any steps to manufacture or supply any NRIO-branded products, or to market, sell, distribute or export any such products.

ORDER that the eighth defendant is restrained from taking any steps to manufacture or supply any other products that are to be sold to ultimate consumers in China in packaging bearing the Neurio brand, or to market, sell, distribute or export any such products, to or for any person other than the first plaintiff or persons authorised by the first plaintiff.

ORDER that the eighth defendant:

pay equitable compensation to the first plaintiff for loss suffered by reason of the eighth defendant’s knowing assistance in the breaches of fiduciary duty referred to in (22), (26) and (40) above, in an amount to be determined at a subsequent hearing; or

account to the first plaintiff for any benefit or gain obtained or received by the eighth defendant by reason of its knowing assistance in the breaches of fiduciary duty referred to in in (22), (26) and (40) above,

at the plaintiffs’ election.

DECLARE that the ninth defendant knowingly assisted the breaches of fiduciary duty by Mr He and Ms Lu referred to at (22) and (26) above within the meaning of the second limb of Barnes v Addy in the period from December 2022 by manufacturing NRIO-branded sachets of formulated milk powder with the knowledge that those sachets would be marketed and sold in China in tins bearing the Neurio and NRIO brands.

ORDER that the ninth defendant is restrained from taking any steps to manufacture or supply any NRIO-branded products, or to market, sell, distribute or export any such products.

ORDER that the ninth defendant is restrained from taking any steps to manufacture or supply any other products that are to be sold to ultimate consumers in China in packaging bearing the Neurio brand, or to market, sell, distribute or export any such products, to or for any person other than the first plaintiff or persons authorised by the first plaintiff.

ORDER that the ninth defendant:

pay equitable compensation to the plaintiff for loss suffered by reason of the ninth defendant’s knowing assistance in the breaches of fiduciary duty referred to in (22), (26) and (44) above, in an amount to be determined at a subsequent hearing; or

account to the first plaintiff for any benefit or gain obtained or received by the ninth defendant by reason of its knowing assistance in the breaches of fiduciary duty referred to in (22), (26) and (44) above,

at the plaintiffs’ election.

DECLARE that the tenth defendant knowingly assisted the breaches of fiduciary duty by Mr He and Ms Lu referred to at (22) and (26) above within the meaning of the second limb of Barnes v Addy in the period from 31 March 2023 by holding the New Zealand registered NRIO trade mark from that date.

ORDER that the tenth defendant is restrained from taking any steps to manufacture, market, sell, distribute or export, or to permit the manufacturing, marketing, sale, distribution or export, of any NRIO-branded products.

ORDER that the tenth defendant is restrained from taking any steps to manufacture, market, sell, distribute or export, or to permit the manufacturing, marketing, sale, distribution or export, of any other products that are to be sold to ultimate consumers in China in packaging bearing the Neurio brand, to or for any person other than the first plaintiff or persons authorised by the first plaintiff.

DECLARE that the payments made from the joint accounts of the first and second defendant to the account of the seventh defendant during the period from 15 February 2023 to 3 March 2023 totalling AUD$4,213,126.88 are voidable pursuant to s 37A of the Conveyancing Act 1919 (NSW).

ORDER pursuant to s 37A of the Conveyancing Act 1919 (NSW) that the payments referred to in (51) above be set aside.

ORDER that the seventh defendant repay to the first and second defendants the sum of AUD$4,213,126.88 that was paid to the seventh defendant under the transfers referred to in (51) above.

DECLARE that the first defendant contravened ss 181(1)(a) and 182(1)(a) of the Corporations Act 2001 (Cth), and breached his fiduciary duties owed to the first plaintiff as a director of the first plaintiff, by causing the first plaintiff to market and develop the Guamis brand during the period from approximately September 2021 to November 2022 by marketing and developing a co-branded Neurio/Guamis product range.

DECLARE that the first defendant breached fiduciary duties that he continued to owe to the first plaintiff after his resignation as a director of the first plaintiff on 25 November 2022 by:

requesting, directing, encouraging or endorsing the fifth defendant in and from December 2022 to permit the use of the New Zealand Guamis trade mark in the manufacture of the products from the Neurio/Guamis range, branded only as Guamis, to be supplied to the fourth defendant; and

requesting, directing, encouraging or endorsing the third defendant, the fourth defendant, and the fifth defendant to market, distribute and sell those products in China in packaging that replicated the first plaintiff’s Neurio/Guamis product range packaging, save for the removal of the Neurio trade mark.

ORDER that the first defendant pay:

compensation to the first plaintiff under s 1317H of the Corporations Act 2001 (Cth) for the contraventions of ss 181(1)(a) and 182(1)(a) of that Act, or equitable compensation for loss suffered by the first plaintiff by reason of his breach of fiduciary duties, referred to in (54) above, in an amount to be determined at a subsequent hearing; and

equitable compensation for loss suffered by the first plaintiff by reason of his breaches of fiduciary duties, referred to in (55) above, in an amount to be determined at a subsequent hearing.

ORDER that the first defendant be restrained from taking any steps to manufacture, export, market, distribute, or sell any Guamis-branded product to or for any person other than the first plaintiff, or persons authorised by the first plaintiff in writing.

DECLARE that the second defendant contravened ss 181(1)(a) and 182(1)(a) of the Corporations Act 2001 (Cth), and breached her fiduciary duties owed to the first plaintiff as a director of the first plaintiff, by causing the first plaintiff to market and develop the Guamis brand during the period from approximately September 2021 to November 2022 by marketing and developing a co-branded Neurio/Guamis product range.

DECLARE that the second defendant breached fiduciary duties that she continued to owe to the first plaintiff after her resignation as a director of the first plaintiff on 25 November 2022 by:

requesting, directing, encouraging or endorsing the fifth defendant in and from December 2022 to permit the use of the New Zealand Guamis trade mark in the manufacture of the products from the Neurio/Guamis range, branded only as Guamis, to be supplied to the fourth defendant; and

requesting, directing, encouraging or endorsing the third defendant, the fourth defendant and the fifth defendant to market, distribute and sell those products in China in packaging that replicated the first plaintiff’s Neurio/Guamis product range packaging, save for the removal of the Neurio trade mark.

ORDER the second defendant to pay:

compensation to the first plaintiff under s 1317H of the Corporations Act2001 (Cth) for the contraventions of ss 181(1)(a) and 182(1)(a) of that Act, or equitable compensation for loss suffered by the first plaintiff by reason of her breach of fiduciary duties, referred to in (58) above, in an amount to be determined at a subsequent hearing; and

equitable compensation for loss suffered by the first plaintiff by reason of her breaches of fiduciary duties, referred to in (59) above, in an amount to be determined at a subsequent hearing.

ORDER that the second defendant is restrained from taking any steps to manufacture, export, market, distribute, or sell any Guamis-branded product to or for any person other than the first plaintiff, or persons authorised by the first plaintiff in writing.

DECLARE that the fifth defendant holds the Australian Guamis trade mark on constructive trust for the first plaintiff.

ORDER that the fifth defendant take all necessary steps to transfer the registration of the Australian Guamis trade mark to the first plaintiff.

DECLARE that the tenth defendant holds the New Zealand Guamis trade mark, and the fifth defendant holds its interest in that trade mark, on constructive trust for the first plaintiff.

ORDER that the tenth defendant and the fifth defendant take all necessary steps to transfer the registration of the New Zealand Guamis trade mark to the first plaintiff.

ORDER that the fifth defendant be restrained from taking any steps to manufacture, export, market, distribute, or sell any Guamis-branded product to or for any person other than the first plaintiff, or persons authorised by the first plaintiff in writing.

ORDER that the fifth defendant is restrained from permitting, or purporting to permit, any party (other than the first plaintiff, or persons authorised by the first plaintiff in writing) to use the Australian or New Zealand Guamis trade marks for the purpose of manufacturing, exporting, marketing, distributing or selling any Guamis-branded product to or for any person.

At the election of the plaintiffs:

ORDER that the third defendant take all necessary steps to substitute the first plaintiff as the applicant for registration of the Guamis trade mark in China; or

an order that the third defendant pay equitable compensation to the first plaintiff for loss suffered by the first plaintiff by reason of the third defendant’s knowing assistance in the first defendant and second defendant’s breaches of fiduciary duties, referred to in (54) and (58) above, in an amount to be determined at a subsequent hearing.

ORDER that the third defendant is restrained from taking any steps to manufacture, export, market, distribute, or sell any Guamis-branded product to or for any person other than the first plaintiff, or persons authorised by the first plaintiff in writing.

Order that the plaintiffs’ claims for final relief are otherwise dismissed.

Order that the second cross-claim filed on 1 November 2023 is dismissed.

Reserve the question of costs.

Direct the parties to file and serve written submissions in relation to the costs of these proceedings and proceedings 2022/333557 within 14 days.

List the proceedings before Williams J at 9.15am on 15 May 2024 for directions in relation to any future separate hearing in relation to quantum.

In the All168 proceedings (2022/333557), the All168 Plaintiffs have failed in respect of each of their claims for relief. The orders of the Court are as follows:

Proceedings dismissed.

Reserve the question of costs.

Direct the parties to file and serve written submissions in relation to the costs of these proceedings and proceedings 2022/329426 within 14 days.

**********

Endnotes

Decision last updated: 22 April 2024

Medium Neutral Citation:	In the matter of Sunnya Pty Ltd [2024] NSWSC 403
Hearing dates:	28 November and 1, 4–8, 11–15, 18 and 20–21 December 2023
Date of orders:	19 April 2024
Decision date:	19 April 2024
Jurisdiction:	Equity - Corporations List
Before:	Williams J
Decision:	See below at [1039]-[1047]
Catchwords:	CORPORATIONS – Directors – Duties under Corporations Act 2001 (Cth), ss 180, 181, 182 – Involvement of third parties in contraventions of ss 180, 181, 182 CORPORATIONS – Directors - Fiduciary duties owed to company during directorship – Circumstances in which former director continues to owe fiduciary duties to company after resigning as a director EQUITY – Fiduciaries – Conflict rule – Profit rule – Liability of fiduciaries and third parties under the rule in Barnes v Addy – Alter ego doctrine PROPERTY – Conveyancing Act 1919 (NSW), s 37A – alienation of property with intent to defraud creditors CORPORATIONS – Whether affairs of company conducted in a manner that is contrary to interests of members as a whole, and oppressive to, unfairly prejudicial to, or unfairly discriminatory against a member
Legislation Cited:	Conveyancing Act 1919 (NSW) s 37A Corporations Act 2001 (Cth) ss 79, 135, 140, 180, 181, 182, 201G, 232I, 233, 237, 248C, 249H, 250E, 248E, 250J-250M, 1317H, 1317S, 1318, 1322 Evidence Act 1995 (NSW) ss 136, 140, 166, 169
Cases Cited:	Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43 Australian Careers Institute Pty Ltd v Australian Institute of Fitness Pty Ltd (2016) 340 ALR 580; [2016] NSWCA 347 Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) (2015) 235 FCR 181; [2015] FCA 342 Australian Securities and Investments Commission v Flugge (2016) 342 ALR 1; [2016] VSC 779 Australian Securities and Investments Commission v Geary (2018) 332 FLR 201; [2018] VSCA 103 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Australian Securities and Investments Commission v Maxwell (2006) 59 ACSR 373; [2006] NSWSC 1052 Baden v Société Générale pour Favoriser le Développement du Commerce et de l’Industrieen France SA [1993] 1 WLR 509 Barnes v Addy (1874) LR 9 Ch App 244 Barton v Deputy Commissioner of Taxation (1974) 131 CLR 370; [1974] HCA 43 BCI Finances Pty Ltd (in liq) v Binetter (2018) 362 ALR 597; [2018] FCAFC 189 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Breen v Williams (1996) 186 CLR 71; [1996] HCA 57 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Canadian Aero Service Ltd v O’Malley [1974] SCR 592 Cannane v J Cannane Pty Ltd (in liq) (1998) 192 CLR 557; [1992] HCA 26 Cardile v LED Builders Pty Ltd (1999) 198 CLR 300; [1999] HCA 36 Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83; [1991] HCA 54 DSHE Holdings Ltd (receivers and managers apptd) (in liq) v Potts (2022) 405 ALR 70; [2022] NSWCA 165 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Edmonds v Donovan (2005) 12 VR 513; [2005] VSCA 27 Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Foster Bryant Surveying Ltd v Bryant [2007] EWCA Civ 200 Friend v Booker (2009) 239 CLR 129; [2009] HCA 21 Giorgianni v R (1985) 156 CLR 473; [1985] HCA 29 Grimaldi v Chameleon Mining NL (2012) 200 FCR 296; [2012] FCAFC 6 Gunasegaram v Blue Visions Management Pty Ltd (2018) 129 ACSR 265; [2018] NSWCA 179 Hancock v Rinehart (2015) 106 ACSR 207; [2015] NSWSC 646 Harstedt Pty Ltd v Tomanek (2018) 55 VR 158; [2018] VSCA 84 Hart Security Australia Pty Ltd v Boucousis (2016) 339 ALR 659; [2016] NSWCA 307 Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266 Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21 Howard v Commissioner of Taxation (2014) 253 CLR 83; [2014] HCA 21 Hunter Kane Ltd v Watkins [2002] EWHC 186 (Ch) Hyland v Hyland (1971) 18 FLR 461 In the matter of Sunnya Pty Ltd [2023] NSWSC 1104 In the matter of Sunnya Pty Ltd [2023] NSWSC 1286 Island Export Finance v Umunna [1986] BCLC 460 Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kim v Wang (2023) 298 FCR 337; [2023] FCAFC 115 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Laundy Hotels (Quarry) Pty Ltd v Dyco Hotels Pty Ltd (atfParras Family Trust) (2023) 407 ALR 613; [2023] HCA 6 Marcolongo v Chen (2011) 242 CLR 546; [2011] HCA 3 Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 Munstermann v Rayward; Rayward v Munstermann [2017] NSWSC 133 Murdoch v Mudgee Dolomite & Lime Pty Ltd (in liq) (2022) 398 ALR 658; [2022] NSWCA 12 Nicholls v Michael Wilson & Partners Ltd [2012] NSWCA 383 OLI 1 Pty Ltd (in liq) v OLG 1 Pty Ltd (2022) 164 ACSR 171; [2022] NSWSC 1199 Pilmer v Duke Group Limited (in liq) (2001) 207 CLR 165; [2001] HCA 31 Pittmore Pty Ltd v Chan (2020) 104 NSWLR 62; [2020] NSWCA 344 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257; [2003] HCA 10 R v Byrnes (1995) 183 CLR 501; [1995] HCA 1 Re Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233; [2014] NSWSC 789 Re IW4U Pty Ltd (in liq) (2021) 150 ACSR 146; [2021] NSWSC 40 Re Sirrah Pty Ltd (in prov liq) (2021) 152 ACSR 212; [2021] NSWSC 413 Re Sunnya Pty Limited [2023] NSWSC 225 Realestate.com.au v Hardingham (2022) 406 ALR 678; [2022] HCA 39 Rheem Australia Pty Ltd v McInnes [2020] NSWSC 1313 Rishmont Pty Ltd v Tweed City Medical Centre Pty Ltd [2002] 2 Qd R 222; [2001] QSC 372 Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 Saba v Plumb (2018) 97 NSWLR 278; [2018] NSWCA 60 Schmidt v AHRKalimpa Pty Ltd [2020] VSCA 193 Strategic Communications Management Pty Ltd v Techfront Australia Pty Ltd [2020] NSWSC 847 Super Vision Resources Ltd BVI Registered No 1810534 v AC Holdings Co Pty Ltd [2020] NSWCA 319 Termite Resources NL (in liq) v Meadows (2019) 370 ALR 191; [2019] FCA 354 Troulis v Vamvoukakis [1998] NSWCA 237 Twigg v Twigg (2022) 402 ALR 119; [2022] NSWCA 68 Tzavaras v Tzavaras & Sons Pty Ltd [2023] NSWCA 168 VicBeef Holdings Pty Ltd v Chen [2021] VSC 546 Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18 Watson v Foxman (1995) 49 NSWLR 315 Xiao v BCEG International (Australia) Pty Ltd (2023) 111 NSWLR 132; [2023] NSWCA 48 Yorke v Lucas (1985) 158 CLR 661; [1985] HCA 65 Zibara v Ultra Management (Sports) Pty Ltd (2021) 283 FCR 18; [2021] FCAFC 4
Texts Cited:	Ford, Austin & Ramsay’s Principles of Corporations Law (16th ed, 2015, Lexis Nexis Butterworths) J. D. Heydon, Heydon on Contract: The General Part (2019, Lawbook Co) J. D. Heydon, Cross on Evidence (14th ed, 2024, LexisNexis)
Category:	Principal judgment
Parties:	2022/329426 Sunnya Pty Ltd (First Plaintiff/Cross-Defendant on First Cross Claim/Cross-Defendant on Second Cross Claim) Jatcorp Limited (Second Plaintiff) Yinghan He (First Defendant/First Cross-Claimant on Second Cross Claim) Yanxia Lu (Second Defendant/Second Cross-Claimant on Second Cross Claim) Guangzhou Aotea Biological Technology Pte Ltd (Third Defendant/Cross-Claimant on First Cross Claim) Guangzhou Niurui Trading Co., Ltd (Fourth Defendant) Sunlife Healthfood Pty Ltd (Fifth Defendant) Yaqing He (Sixth Defendant) HLW Investments Pty Ltd (Seventh Defendant) Supermega Market Ltd (Eighth Defendant) Megadairy Ltd (Ninth Defendant) NZFDA Limited (NZ) (Tenth Defendant) 2022/333557 All168 Pty Ltd (First Plaintiff) Yinghan He (Second Plaintiff) Yanxia Lu (Third Plaintiff) Jatcorp Limited (First Defendant) Peng Shen (Second Defendant) Zhan Wang (Third Defendant) Zhiguo Zhang (Fourth Defendant) Sunnya Pty Ltd (Fifth Defendant)
Representation:	Counsel: 2022/329426 Mr RM Foreman SC, Mr MR Davis, and Mr GP Gee (Plaintiffs/Cross-Defendant on First Cross Claim/Cross-Defendant on Second Cross Claim) Mr W Shen (solicitor) (First, Second and Sixth Defendants/Cross-Claimants on Second Cross Claim) (on 6 December 2023) Dr SA Baron Levi (First, Second and Sixth Defendants/Cross-Claimants on Second Cross Claim) (on and from 7 December 2023) Mr MGR Gronow KC, Mr A Aleksov, and Mr YLR Chen (Eighth, Ninth, and Tenth Defendants) 2022/333557 Mr W Shen (solicitor) (Plaintiffs) (on 6 December 2023) Dr SA Baron Levi (Plaintiffs) (on and from 7 December 2023) Mr RM Foreman SC, Mr MR Davis, and Mr GP Gee (Defendants) Solicitors: 2022/329426 Auyeung Hencent & Day Lawyers (Plaintiffs/Cross-Defendant on First Cross Claim/Cross-Defendant on Second Cross Claim) SHEN’S Lawyers (First, Second and Sixth Defendants/Cross-Claimants on Second Cross Claim) (on and from 6 December 2023) Roberts Gray Lawyers (Eighth, Ninth, and Tenth Defendants) 2022/333557 SHEN’S Lawyers (Plaintiffs) (on and from 6 December 2023) Auyeung Hencent & Day Lawyers (Defendants) No Appearance: 2022/329426 Guangzhou Aotea Biological Technology Pte Ltd (Third Defendant/Cross-Claimant on First Cross Claim) Guangzhou Niurui Trading Co., Ltd (Fourth Defendant) Sunlife Healthfood Pty Ltd (Fifth Defendant) HLW Investments Pty Ltd (Seventh Defendant)
File Number(s):	2022/329426 and 2022/333557
Publication restriction:	N/A

REF	Header	Timestamp	Timestamp (UTC +0)
1	Sent Date	Fri, 12 Jun 2015 11:10:34 +0800	12/06/2015 03:10:34
2	DKIM Signature	1679823095	26/03/2023 09:31:35
3	Received	2015.06.11.20.11.40	12/06/2015 03:11:40
4	Received	Thu, 11 Jun 2015 20:10:42 -0700 (PDT)	12/06/2015 03:10:42
5	ARC Seal	1679823102	26/03/2023 09:31:42
6	X-Received	1679823102680	26/03/2023 09:31:42
7	X-Received	Thu, 11 Jun 2015 20:10:42 -0700 (PDT)	12/06/2015 03:10:42
8	Received Date	Thu, 11 Jun 2015 20:10:43 -0700 (PDT)	12/06/2015 03:10:43