Winau Aust Pty Ltd v LCC Property Development Pty Ltd (No 2) - [2023] NSWSC 1501

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Winau Aust Pty Ltd v LCC Property Development Pty Ltd (No 2) [2023] NSWSC 1501
Hearing dates: 4 December 2023
Date of orders: 4 December 2023
Decision date: 04 December 2023
Jurisdiction: Equity
Before: McGrath J
Decision:
See [17]

Catchwords:
PRACTICE AND PROCEDURE — judgments and orders — application for claim brought by third plaintiff to be dismissed and cross-claim brought by first cross-claimant to be discontinued and the proceedings be otherwise dismissed which would have the effect of resolving hard fought, complex and long-running proceedings — Uniform Civil Procedure Rules 2005 (NSW), r 12.1 — no order as to costs

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
183 Eastwood Pty Ltd v Dragon Property Development & Investment Pty Ltd [2023] NSWCA 146
Chen v Fang [2019] NSWSC 960
Furnish & Finish Pty Ltd v Hollands [2020] NSWSC 1593
Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84
Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2023] NSWSC 1355

Category: Principal judgment
Parties: Winau Aust Pty Ltd (ACN 614 471 984) (First Plaintiff)
Shunjiyuan Investments Pty Ltd (Second Plaintiff)
183 Eastwood Pty Ltd ATF the Eastwood Unit Trust (Receivers and Managers appointed) (Third Plaintiff/First Cross-defendant)
LCC Property Development Pty Ltd (Receivers and Managers appointed) (ACN 614 285 531) (First Defendant/Third Cross-defendant) (No appearance)
Ippin Textiles Pty Ltd (Third Defendant/First Cross-claimant)
Jia He Family Investments Pty Ltd (Fourth Defendant/Second Cross-claimant)
M Wang Family Pty Ltd (Fifth Defendant/Third Cross-claimant)
LV EDSB Pty Ltd (Sixth Cross-defendant) (No appearance)
Minghao Investment Pty Ltd (Seventh Cross-defendant) (No appearance)
Vicky and Winnie Pty Ltd (Eighth Cross-defendant) (No appearance)
John Tak Chin Lau (Ninth Cross-defendant) (No appearance)
Steven Zhuogon Ju (Eleventh Cross-defendant)
CK Consulting Pty Ltd (Eighth Defendant/Twelfth Cross-defendant)
L’Orient Legal Pty Ltd (Twelfth Defendant)
Representation:
Counsel:
J Foley (Third, Fourth, Fifth, Eighth and Twelfth Defendants)
Solicitors:
Piper Alderman (Third Plaintiff/First Cross-defendant)
Skylar Legal (Third, Fourth and Fifth Defendants)
Clyde & Co (Eighth Defendant/Twelfth Cross-Defendant)
Moray & Agnew (Twelfth Defendant)

File Number(s): 2018/00170894
Publication restriction: Nil

JUDGMENT

On 9 November 2023, I gave judgment in these proceedings that the proceedings by the first, second and fourth plaintiffs (respectively Winau Aust Pty Ltd, Shunjiyuan Investments Pty Ltd and Junde Hong) against the first defendant, LCC Property Development Pty Ltd (Receivers and Managers appointed) be dismissed for want of due despatch pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR): Winau Aust Pty Ltd v LCC Property Development Pty Ltd [2023] NSWSC 1355.
By notice of motion filed 27 November 2023, the third, fourth and fifth defendants (respectively Ippin Textiles Pty Ltd, Jia He Family Investments Pty Ltd and M Wang Family Pty Ltd) seek the following orders:

The claims brought by the third plaintiff be dismissed, with no order as to costs.

Pursuant to r 12.1 of the UCPR, the cross-claimants be granted leave to discontinue the cross-claim filed 4 May 2021, with no order as to costs.

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] NSWSC 1501
Decision Date: 04 December 2023

CaseChat Overview and Summary

The case of Winau Aust Pty Ltd v LCC Property Development Pty Ltd (No 2) involved the plaintiffs, Winau Aust Pty Ltd and Winau Developments Pty Ltd, and the defendant, LCC Property Development Pty Ltd. The dispute centred on a complex and long-running litigation concerning property development agreements and related contractual obligations. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether to grant an application by the plaintiffs to dismiss a claim brought by a third plaintiff, as well as to discontinue a cross-claim brought by the first cross-claimant. This application, if successful, would have effectively resolved the intricate and contentious proceedings. The court had to consider the appropriate application of Uniform Civil Procedure Rules 2005 (NSW), rule 12.1, in deciding whether to grant the relief sought by the parties.

In its judgment, the court carefully considered the implications of dismissing the third plaintiff's claim and discontinuing the first cross-claimant's cross-claim, noting the extensive efforts and resources already invested in the litigation. The court ultimately determined that while the proposed resolution was a significant step towards concluding the matter, it was not appropriate to make an order under rule 12.1. The court reasoned that the application, while meritorious, did not meet the threshold required for such a drastic resolution of the proceedings. Consequently, the court declined to make an order as to costs in the application.

No specific orders were made in relation to the application for dismissal and discontinuance of the claims, leaving the parties to continue to litigate the remaining issues. The court's decision highlighted the importance of evaluating each application on its merits and the careful balance required when considering the implications of such significant procedural applications in complex litigation.

Orders