Ng v Yanjian Group (Australia) Pty Ltd
[2014] FCA 289
FEDERAL COURT OF AUSTRALIA
Ng v Yanjian Group (Australia) Pty Ltd [2014] FCA 289
Citation: Ng v Yanjian Group (Australia) Pty Ltd [2014] FCA 289 Parties: MAN YUNG MARCUS NG v YANJIAN GROUP (AUSTRALIA) PTY LTD (ACN 140 635 712) File number(s): QUD 430 of 2013 Judge(s): GREENWOOD J Date of judgment: 26 March 2014 Catchwords: PRACTICE AND PROCEDURE – application for further discovery – application considered on the papers Date of hearing: 12 March 2014 Date of last submissions: 21 March 2014 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Mr P Hastie QC Solicitor for the Applicant: HopgoodGanim Lawyers Counsel for the Respondent: Mr S Cleary Solicitor for the Respondent: MacDonnells Law
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 430 of 2013
BETWEEN: MAN YUNG MARCUS NG
ApplicantAND: YANJIAN GROUP (AUSTRALIA) PTY LTD
(ACN 140 635 712)
Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
26 MARCH 2014
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The respondent provide by way of discovery to the applicant:
(a)a full and complete copy of the general ledger for the financial year ended 30 June 2012;
(b)all documents related to the entry in the respondent’s financial reports entitled “BK ACC – China (Material Pur)”; and
(c)all documents relied upon to compile the entries referred to in Category 3(f), 3(g) and 3(h) of the letter from the applicant’s solicitors to the respondent’s solicitors dated 11 March 2014, a copy of which is contained at pp 130‑132 of Annexure “KSB‑17” to the affidavit of Kris Sjouke Byrne filed in Court on 12 March 2014.
2.The respondent pay the applicant’s costs of and incidental to the directions hearing on 12 March 2014 and the making of these submissions.
3.The costs payable pursuant to Order 2 be paid within 14 days of being agreed or taxed, if not agreed.
4.The applicant be at liberty to have the costs referred to in Orders 2 and 3 and the order made 4 November 2013 taxed immediately.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 430 of 2013
BETWEEN: MAN YUNG MARCUS NG
ApplicantAND: YANJIAN GROUP (AUSTRALIA) PTY LTD
(ACN 140 635 712)
Respondent
JUDGE:
GREENWOOD J
DATE:
26 MARCH 2014
PLACE:
BRISBANE
REASONS FOR JUDGMENT
At the directions hearing on 12 March 2014, the applicant in the principal proceeding sought orders for further discovery from the respondent. Although there had been exchanges between the solicitors for the parties about aspects of the respondent’s discovery, the affidavit material upon which the applicant sought to rely in support of further discovery was served on the respondent on the morning of the directions hearing. The respondent was therefore not in a position to deal with aspects of the matter.
Accordingly, Orders 2, 3, 4 and 5 were in these terms:
2.The respondent provide to the Associate to Greenwood J, by close of business on 19 March 2014, written submissions in respect of the applicant’s request for orders for discovery of the documents listed in the letter from the applicant’s solicitors to the respondent’s solicitors dated 11 March 2014, a copy of which is contained at pages 130-132 of annexure “KSB-17” to the affidavit of Kris Sjouke Byrne filed in court on 12 March 2014 (the “disclosure request”).
3.The applicant provide to the Associate to Greenwood J, by close of business on 21 March 2014, written submissions in reply (if any) in respect of the disclosure request.
4.The disclosure request be considered on the papers, and any orders be made from chambers pursuant to rule 1.36 of the Federal Court Rules 2011.
5. Costs reserved.
No submissions have been received from the respondent as contemplated by Order 2 of the orders.
Although the respondent failed to file submissions, the applicant nevertheless filed submissions by email on 21 March 2014 in support of further discovery.
The documents the subject of the disclosure request made by the applicant are set out in the letter from the solicitors for the applicant, HopgoodGanim, to the solicitors for the respondent, MacDonnells Law, dated 11 March 2014.
In summary, the documents are these:
Category 1:A full and complete copy of the General Ledger maintained by Hanrick Curran.
Category 2:A full and complete copy of the General Ledger maintained by the Respondent.
Category 3:Documents relied upon to compile the entry in the general ledger entitled:
(a) 4-1050 Sale – Management Rights.
(b) 4-9000 Foreign Exchange Gain/Loss.
(c) 5-2278 Construction – Breakdown.
(d) 5-4999 Suspense – Other Adjustment.
(e) 5-9999 Closing Stock.
(f) 9-1001 Interest – Internal Loan.
(g) 9-1011 Interest Expense – China Inter.
(h) 9-1012 Interest Expense – China Exter.
Category 4:Documents relied upon to compile the entry in the respondent’s signed profit and loss statements dated 10 December 2013 entitled:
(a) BK ACC – China (Material Purchase)
(b) Loans – Yanjian Mackay
(c) Consultant’s Fees
(d) Property Holding Costs
(e) Legal
The applicant’s submissions suggest that subsequent to 12 March 2014, the respondent provided to the applicant:
1.Documents sufficiently responsive to category 1 (although the respondent advises that the ledger maintained by Hanrick Curran was not maintained separately from the general ledger maintained by the respondent) with the exception of the period from 1 July 2011 to 30 June 2012; and
2.Documents responsive to categories 3(a) to (e).
The respondent informed the applicant that the invoices responsive to Categories 4(c) to (e) had been “sent to an external photocopy place and should be delivered in the next few days”.
In relation to Category 4(b), the respondent informed the applicant that the “loans to Yanjian Mackay were recorded as internal transfers based on bank statements” and that “there are no formal loan documents”.
By his submissions, the applicant only seeks orders for disclosure of the following:
1.category 1 documents for the financial year ended 30 June 2012;
2.category 3(f) to (h) documents; and
3.category 4(a) documents.
General Ledger for the financial year ended 30 June 2012
The applicant contends that the copy of the general ledger for the 2011/2012 financial year with which he has been provided appears to be incomplete. The ledger is said to omit references to line items with item codes commencing with “3” onwards and does not contain a final page with a “totals” line (unlike the ledgers for each of the other three relevant financial years).
The respondent’s solicitor has informed the applicant’s solicitor that the respondent’s position is that there has been “no activity on these entries”. The applicant contends that this position is implausible and inconsistent with previously disclosed documents.
Category 3(f) documents
The respondent sent an email to the applicant purporting to attach this document. However, the document was not attached. The applicant drew this fact to the respondent’s solicitor’s attention on 19 March 2014, but the document has not yet been provided.
Category 3(g) and (h) documents
The respondent has not responded to the applicant’s request for these documents. The applicant contends that these documents include loan agreements, letters of credit, other documents evidencing the loan, interest rate amounts, repayments, purpose for the loan and correspondence relevant to repayments and interest.
Category 4(a) documents
The respondent sent an email to the applicant which notes:
This information was advised by the client (possibly even Marcus). We do not have documentation.
The applicant, by his submissions, contends that this response is evasive and does not assist the Court to determine whether the relevant document exists. The applicant also contends that the value of the entry in the profit and loss statements ($4,924,491.00) makes it very unlikely that there are no transaction documents to support it.
The submissions filed by the applicant and the material upon which the applicant relies make out a proper basis for believing that the requested documents are likely to exist. I am satisfied that the documents are relevant to the matters in issue in the controversy. The respondent has failed to file submissions suggesting any basis for opposition to the proposed orders for further discovery. No issue has been raised by the respondent that the documents are not relevant to questions in issue.
I am satisfied that the following orders ought to be made:
1.The respondent provide by way of discovery to the applicant:
(a)a full and complete copy of the general ledger for the financial year ended 30 June 2012;
(b)all documents related to the entry in the respondent’s financial reports entitled “BK ACC – China (Material Pur)”; and
(c)all documents relied upon to compile the entries referred to in Category 3(f), 3(g) and 3(h) of the letter from the applicant’s solicitors to the respondent’s solicitors dated 11 March 2014, a copy of which is contained at pp 130‑132 of Annexure “KSB‑17” to the affidavit of Kris Sjouke Byrne filed in Court on 12 March 2014.
2.The respondent pay the applicant’s costs of and incidental to the directions hearing on 12 March 2014 and the making of these submissions.
3.The costs payable pursuant to Order 2 be paid within 14 days of being agreed or taxed, if not agreed.
4.The applicant be at liberty to have the costs referred to in Orders 2 and 3 and the order made 4 November 2013 taxed immediately.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 26 March 2014
0
0
0