Macquarie Units Pty Ltd v Sunchen Pty Ltd - [2023] NSWCA 116

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Macquarie Units Pty Ltd v Sunchen Pty Ltd [2023] NSWCA 116
Hearing dates: 21 September 2022
Date of orders: 26 May 2023
Decision date: 26 May 2023
Before: Meagher JA at [1];
White JA at [111];
Brereton JA at [122]
Decision:
1. Extend the time for the filing of the notice of appeal to 10 December 2021.
2. Dismiss the appeal.
3. The appellants pay the respondents’ costs of the appeal.

Catchwords:
CIVIL PROCEDURE — Hearings — Where appellants sought separate inquiry as to assessment of equitable compensation and common law damages — Whether primary judge denied appellants procedural fairness by dismissing claims because they had not proved they suffered any loss
COMPANIES — Shares — Rectification of share register — laches defence
EQUITY — Defences — Laches — Whether claim to rectification of share register barred by laches

Legislation Cited:
Corporations Act 2001 (Cth), s 175

Cases Cited:
Akierman Holdings Pty Ltd v Akerman (No 2) [2020] NSWSC 970
Artistic Builders Pty Ltd v Elliot & Tuthill (Mortgages) Pty Ltd [2002] NSWSC 16
Burns Philp Trust Co Pty Ltd v Kwikasair Freightliners Ltd (1963) 63 SR (NSW) 492
Cayenne Coal Pty Ltd as Trustee for Boardwalk Resources Trust v Whitehaven Coal Limited (No 2) [2022] NSWSC 1242
Clegg v Edmondson (1857) 8 De GM & G 787 [44 ER 593]
Crawley v Short [2009] NSWCA 410; (2009) 76 ACSR 286
Edmonds v Donovan (2005) 12 VR 513; [2005] VSCA 27
Erlanger v The New Sombrero Phosphate Co (1878) 3 App Cas 1218
Fysh v Page (1956) 96 CLR 233; [1956] HCA 13
Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] HCA 54
Hatch v Hatch (1804) 9 Ves 292 [32 ER 615]
In re Jarvis [1958] 1 WLR 815
LindsayPetroleum Co v Hurd (1874) LR 5 PC 221
Nassif v Sun [2021] NSWSC 990
Orr v Ford (1989) 167 CLR 316; [1989] HCA 4
Rowe v Oades (1903) 3 CLR 73
Savage v Lunn [1998] NSWCA 203
Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291; [2011] WASCA 17
Twigg v Twigg [2022] NSWCA 68; (2022) 402 ALR 119
Twigg v Twigg(No 4) [2020] NSWSC 1159; (2020) 147 ACSR 389
Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18

Texts Cited:
Heydon, Heydon on Contract (2019, LawBook Company)
Heydon, Leeming and Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths)
Lindley, The Law of Companies (6th ed, 1902, Sweet and Maxwell)

Category: Principal judgment
Parties: Macquarie Units Pty Ltd (First Appellant)
Steve Nassif (Second Appellant)
MC 0380 Pty Ltd (Third Appellant)
Sunchen Pty Ltd (First Respondent)
Jianwei Sun (Second Respondent)
Sunshine Group Australia Pty Ltd (Third Respondent)
Representation:
Counsel:
D Sulan SC with J Entwistle (Appellants)
NJ Kidd SC (Respondents)
Solicitors:
Eden King Lawyers (Appellants)
Lawside…

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: [2023] NSWCA 116
Decision Date: 26 May 2023

CaseChat Overview and Summary

Macquarie Units Pty Ltd and others (the appellants) appealed to the New South Wales Court of Appeal against a decision of the primary judge. The dispute concerned claims for equitable compensation and common law damages, as well as a claim for rectification of a company's share register. The primary judge had dismissed these claims.

The Court of Appeal was required to determine whether the primary judge had denied the appellants procedural fairness by dismissing their claims for loss without allowing for a separate inquiry into the assessment of equitable compensation and common law damages. Additionally, the Court had to consider whether the defence of laches barred the appellants' claim for rectification of the share register.

The Court of Appeal found that the primary judge had not denied the appellants procedural fairness. The judge had dismissed the claims because the appellants had failed to prove they suffered any loss, which was a necessary element of their causes of action. The Court also held that the defence of laches was applicable and barred the claim for rectification of the share register, as there had been an inordinate delay by the appellants in pursuing this claim, and this delay had prejudiced the respondents.

The Court of Appeal ordered that the time for filing the notice of appeal be extended to 10 December 2021, but ultimately dismissed the appeal. The appellants were ordered to pay the respondents' costs of the appeal.

Orders

Orders of the court

1. Extend the time for the filing of the notice of appeal to 10 December 2021.

2. Dismiss the appeal.

3. The appellants pay the respondents’ costs of the appeal.

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:	Macquarie Units Pty Ltd v Sunchen Pty Ltd [2023] NSWCA 116
Hearing dates:	21 September 2022
Date of orders:	26 May 2023
Decision date:	26 May 2023
Before:	Meagher JA at [1]; White JA at [111]; Brereton JA at [122]
Decision:	1. Extend the time for the filing of the notice of appeal to 10 December 2021. 2. Dismiss the appeal. 3. The appellants pay the respondents’ costs of the appeal.
Catchwords:	CIVIL PROCEDURE — Hearings — Where appellants sought separate inquiry as to assessment of equitable compensation and common law damages — Whether primary judge denied appellants procedural fairness by dismissing claims because they had not proved they suffered any loss COMPANIES — Shares — Rectification of share register — laches defence EQUITY — Defences — Laches — Whether claim to rectification of share register barred by laches
Legislation Cited:	Corporations Act 2001 (Cth), s 175
Cases Cited:	Akierman Holdings Pty Ltd v Akerman (No 2) [2020] NSWSC 970 Artistic Builders Pty Ltd v Elliot & Tuthill (Mortgages) Pty Ltd [2002] NSWSC 16 Burns Philp Trust Co Pty Ltd v Kwikasair Freightliners Ltd (1963) 63 SR (NSW) 492 Cayenne Coal Pty Ltd as Trustee for Boardwalk Resources Trust v Whitehaven Coal Limited (No 2) [2022] NSWSC 1242 Clegg v Edmondson (1857) 8 De GM & G 787 [44 ER 593] Crawley v Short [2009] NSWCA 410; (2009) 76 ACSR 286 Edmonds v Donovan (2005) 12 VR 513; [2005] VSCA 27 Erlanger v The New Sombrero Phosphate Co (1878) 3 App Cas 1218 Fysh v Page (1956) 96 CLR 233; [1956] HCA 13 Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1; [1950] HCA 54 Hatch v Hatch (1804) 9 Ves 292 [32 ER 615] In re Jarvis [1958] 1 WLR 815 LindsayPetroleum Co v Hurd (1874) LR 5 PC 221 Nassif v Sun [2021] NSWSC 990 Orr v Ford (1989) 167 CLR 316; [1989] HCA 4 Rowe v Oades (1903) 3 CLR 73 Savage v Lunn [1998] NSWCA 203 Streeter v Western Areas Exploration Pty Ltd (No 2) (2011) 278 ALR 291; [2011] WASCA 17 Twigg v Twigg [2022] NSWCA 68; (2022) 402 ALR 119 Twigg v Twigg(No 4) [2020] NSWSC 1159; (2020) 147 ACSR 389 Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18
Texts Cited:	Heydon, Heydon on Contract (2019, LawBook Company) Heydon, Leeming and Turner, Meagher, Gummow & Lehane’s Equity: Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) Lindley, The Law of Companies (6th ed, 1902, Sweet and Maxwell)
Category:	Principal judgment
Parties:	Macquarie Units Pty Ltd (First Appellant) Steve Nassif (Second Appellant) MC 0380 Pty Ltd (Third Appellant) Sunchen Pty Ltd (First Respondent) Jianwei Sun (Second Respondent) Sunshine Group Australia Pty Ltd (Third Respondent)
Representation:	Counsel: D Sulan SC with J Entwistle (Appellants) NJ Kidd SC (Respondents) Solicitors: Eden King Lawyers (Appellants) Lawside…