Keynes Capital Global Ltd v Guo - [2022] NSWCA 254

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Keynes Capital Global Ltd v Guo [2022] NSWCA 254
Hearing dates: 28 November 2022
Date of orders: 9 December 2022
Decision date: 09 December 2022
Before: Bell CJ at [1];
Meagher JA at [2];
Gleeson JA at [68]
Decision:
(1) Dismiss the application for leave to appeal from orders 3 and 4 of the primary judge made on 3 May 2021.
(2) Grant leave to the applicants to appeal from order 1 of the primary judge made on 3 May 2021. That leave is granted in relation to ground 5 of appeal but not in relation to grounds 2 and 4.
(3) Allow the appeal from order 1 and set aside orders 1 and 2 of the primary judge made on 3 May 2021.
(4) Order that the respondent’s notice of motion dated 29 October 2019 be dismissed.
(5) Order that the respondent pay the applicants’ costs of the notice of motion dated 29 October 2019.
(6) Note that no order is made as to the costs of the appeal with the intent that each party bears its or her own costs.

Catchwords:
CIVIL PROCEDURE – freezing orders – where $22m in funds frozen by consent pending resolution of proceeding in Hong Kong – where primary judge made further freezing order in respect of additional amount – whether exceptional circumstances existed to warrant discharge of consent order – whether primary judge erred in making further freezing order – whether applicant had established good arguable case to judgment in Hong Kong in amount secured by further order

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 25.14(3)

Cases Cited:
Abigroup Ltd v Abignano (1992) 39 FCR 74; [1992] FCA 567
John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19
Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130
Paino v Hofbauer (1988) 13 NSWLR 193
Pallant v Morgan [1953] Ch 43
PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; [2015] HCA 36

Texts Cited:
D Foskett, Foskett on Compromise (9th ed, 2020, Sweet & Maxwell)

Category: Principal judgment
Parties: Keynes Capital Global Limited (First Applicant)
General Energy International Holdings Limited (Second Applicant)
Hui Guo (Respondent)
Representation:
Counsel:
B Walker SC with G Gee and E Dunlop (Applicants)
A Young KC with JA Granger (Respondent)
Solicitors:
Maddocks (Applicants)
K&L Gates (Respondent)

File Number(s): 2021/153454
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Commercial List

Citation:

[2021] NSWSC 460

Date of Decision:

03 May 2021

Before:

Rees J

File Number(s):

2018/309560

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicants for leave to appeal, Keynes Capital Global Ltd (Keynes) and General Energy International Holdings Limited (General Energy), are the defendants in a proceeding brought by the respondent Ms…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NSWCA 254
Decision Date: 09 December 2022

CaseChat Overview and Summary

Keynes Capital Global Ltd and others (the applicants) sought leave to appeal from orders of the primary judge concerning freezing orders made in relation to proceedings in Hong Kong. The dispute arose from an initial consent order freezing $22 million in funds pending the resolution of the Hong Kong proceedings. The primary judge subsequently made a further freezing order in respect of an additional amount. The applicants contended that exceptional circumstances warranted the discharge of the consent order and that the primary judge erred in making the further freezing order, arguing that the applicant had not established a good arguable case for the judgment sought to be secured by that order.

The Court of Appeal was required to determine whether exceptional circumstances existed to justify discharging the consent freezing order and whether the primary judge had erred in making the further freezing order. A key issue was whether the applicant had demonstrated a good arguable case for the judgment amount sought to be secured by the additional freezing order.

The Court of Appeal, comprising Bell CJ, Meagher and Gleeson JJA, dismissed the application for leave to appeal from the primary judge's orders 3 and 4 made on 3 May 2021. However, leave to appeal was granted in relation to order 1 of the primary judge made on the same date, specifically in relation to ground 5 of the appeal. The Court allowed the appeal from order 1, setting aside orders 1 and 2 of the primary judge made on 3 May 2021. The respondent's notice of motion dated 29 October 2019 was dismissed, with the respondent ordered to pay the applicants' costs of that motion. No order was made as to the costs of the appeal, with each party to bear their own costs.

Orders

Orders of the court

(1) Dismiss the application for leave to appeal from orders 3 and 4 of the primary judge made on 3 May 2021.

(2) Grant leave to the applicants to appeal from order 1 of the primary judge made on 3 May 2021. That leave is granted in relation to ground 5 of appeal but not in relation to grounds 2 and 4.

(3) Allow the appeal from order 1 and set aside orders 1 and 2 of the primary judge made on 3 May 2021.

(4) Order that the respondent’s notice of motion dated 29 October 2019 be dismissed.

(5) Order that the respondent pay the applicants’ costs of the notice of motion dated 29 October 2019.

(6) Note that no order is made as to the costs of the appeal with the intent that each party bears its or her own costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Keynes Capital Global Ltd v Guo [2022] NSWCA 254
Hearing dates:	28 November 2022
Date of orders:	9 December 2022
Decision date:	09 December 2022
Before:	Bell CJ at [1]; Meagher JA at [2]; Gleeson JA at [68]
Decision:	(1) Dismiss the application for leave to appeal from orders 3 and 4 of the primary judge made on 3 May 2021. (2) Grant leave to the applicants to appeal from order 1 of the primary judge made on 3 May 2021. That leave is granted in relation to ground 5 of appeal but not in relation to grounds 2 and 4. (3) Allow the appeal from order 1 and set aside orders 1 and 2 of the primary judge made on 3 May 2021. (4) Order that the respondent’s notice of motion dated 29 October 2019 be dismissed. (5) Order that the respondent pay the applicants’ costs of the notice of motion dated 29 October 2019. (6) Note that no order is made as to the costs of the appeal with the intent that each party bears its or her own costs.
Catchwords:	CIVIL PROCEDURE – freezing orders – where $22m in funds frozen by consent pending resolution of proceeding in Hong Kong – where primary judge made further freezing order in respect of additional amount – whether exceptional circumstances existed to warrant discharge of consent order – whether primary judge erred in making further freezing order – whether applicant had established good arguable case to judgment in Hong Kong in amount secured by further order
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 25.14(3)
Cases Cited:	Abigroup Ltd v Abignano (1992) 39 FCR 74; [1992] FCA 567 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198; [2015] NSWCA 130 Paino v Hofbauer (1988) 13 NSWLR 193 Pallant v Morgan [1953] Ch 43 PT Bayan Resources TBK v BCBC Singapore Pte Ltd (2015) 258 CLR 1; [2015] HCA 36
Texts Cited:	D Foskett, Foskett on Compromise (9th ed, 2020, Sweet & Maxwell)
Category:	Principal judgment
Parties:	Keynes Capital Global Limited (First Applicant) General Energy International Holdings Limited (Second Applicant) Hui Guo (Respondent)
Representation:	Counsel: B Walker SC with G Gee and E Dunlop (Applicants) A Young KC with JA Granger (Respondent) Solicitors: Maddocks (Applicants) K&L Gates (Respondent)
File Number(s):	2021/153454
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Commercial List Citation: [2021] NSWSC 460 Date of Decision: 03 May 2021 Before: Rees J File Number(s): 2018/309560