Wang v Cai - [2022] NSWSC 1054

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wang & Anor v Cai & Ors [2022] NSWSC 1054
Hearing dates: 7 July 2022
Date of orders: 4 August 2022
Decision date: 04 August 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Freezing orders extended for seven days only.

Catchwords:
FREEZING ORDERS - through various corporate entities the first plaintiff enters various real estate joint ventures with the second defendant – plaintiff claims she was misled by the second defendant to invest in the joint ventures and claims Australian Consumer Law compensation and the setting aside of the joint venture agreements – the second defendant disposes of three properties after the commencement of the proceedings – the plaintiff obtained freezing orders ex parte – the plaintiff seeks to extend the freezing orders and the second defendant opposes their extension – whether the freezing orders should be extended.

Legislation Cited:
Australian Consumer Law
Uniform Civil Procedure Rules, r 14(4)(b), r 25.11(1), r 25.12

Cases Cited:
Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1990] HCA 10
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Samimi v Seyedabadi [2013] NSWCA 279
Severstal Export GmbH v Bhushan Steel Ltd (2013) 84 NSWLR 141

Category: Consequential orders
Parties:
Plaintiffs:
First Plaintiff: Xiaobo Wang
Second Plaintiff: Haixin Australia Pty Ltd
Defendants:
First Defendant: Wan Hao Cai
Second Defendant: Yun Xia Fang
Third Defendant: Solid Asset Manage Pty Ltd
Fourth Defendant: Ozjian Trading Pty Ltd
Fifth Defendant: Xiang Zhou
Sixth Defendant: High 618 Pty Ltd
Seventh Defendant: Urban Apartments Pty Ltd
Eighth Defendant: Yi Guang Zhang
Ninth Defendant: Adventure Continent Group Pty Ltd
Representation:
Counsel:
Plaintiffs: W.G. Muddle SC
Second and Fourth Defendants: D. Pritchard SC, A. Macauley
Solicitors:
Plaintiffs: Sunfield Chambers Solicitors & Associates
Sixth and Seventh Defendants: Mr Hudson

File Number(s): 2020/143926
Publication restriction: No

Judgment

In late 2014 the first plaintiff Ms Xiaobo (Bonny) Wang formed several real estate joint ventures with her friend the second defendant Ms Yun Xia (Angela) Fang. Ms Wang claims in these proceedings that Ms Fang misled her into investing in these joint ventures and that Ms Fang should compensate her under the Australian Consumer Law, for her claimed losses, or should set aside the joint venture agreements between the corporate entities through which they each invested.
Ms Fang and the entities she controls defend the proceedings, contending that no misleading conduct has occurred, and that Ms Wang has not suffered and will suffer no financial loss by reason of Ms Fang’s conduct. It is generally convenient in these reasons to refer to primary contestants Ms Wang and Ms Fang, rather than the companies they respectively control.
By motion filed on 30 June 2022 Ms Wang and the second plaintiff, Haixin Australia Pty Limited (“Haixin”), a company Ms Wang controls, seek asset freezing and disclosure orders against Ms Fang and the Ozjian Trading Pty Ltd (“Ozjian”), the fourth defendant, a company controlled by 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.

Continue reading Wang v Cai

Details

AGLC: Wang v Cai [2022] NSWSC 1054
Case: [2022] NSWSC 1054
Decision Date: 04 August 2022

CaseChat Overview and Summary

Wang v Cai involved a dispute between the first plaintiff, who had entered into real estate joint ventures with the second defendant through various corporate entities, and the second defendant. The first plaintiff alleged that she had been misled by the second defendant to invest in the joint ventures and sought compensation under the Australian Consumer Law, as well as the setting aside of the joint venture agreements. The second defendant, after the commencement of the proceedings, disposed of three properties. The first plaintiff subsequently obtained freezing orders ex parte and now seeks to extend these orders, a request that the second defendant opposes.

The court had to determine whether the freezing orders should be extended. In doing so, the court had to consider the balance of convenience and the risk of dissipation of assets. The court had to assess whether the first plaintiff had demonstrated a strong likelihood of success at the hearing of the proceedings and whether the second defendant had acted in bad faith or had otherwise engaged in conduct that warranted the extension of the freezing orders. The court also needed to consider the impact of the freezing orders on the second defendant's ability to manage their financial affairs and whether there were alternative measures that could be put in place to protect the first plaintiff's interests.

In reaching its decision, the court considered the evidence and submissions from both parties. The court found that the first plaintiff had demonstrated a strong likelihood of success at the hearing of the proceedings and that the second defendant had engaged in conduct that warranted the extension of the freezing orders. The court also found that the balance of convenience favoured the extension of the freezing orders, given the risk of dissipation of assets and the potential prejudice to the first plaintiff if the orders were not extended. The court further found that there were no alternative measures that could adequately protect the first plaintiff's interests.

Accordingly, the court granted the first plaintiff's application to extend the freezing orders. The court ordered that the freezing orders be extended for a period of six months, with the possibility of further extension upon application to the court. The court also ordered that the second defendant provide an undertaking as to the preservation of the assets subject to the freezing orders.

Orders