On 1 December 2022, Ms Meihong Yang commenced these proceedings against:
1. the first defendant, Mr Changjin Li;
2. the second defendant, Vaucluse 29 Pty Limited (ACN 641 319 851) (V29);
3. the third defendant, Bayview 66 Pty Ltd (ACN 641 317 311) (B66);
4. the fourth defendant, One Lake Macquarie Pty Ltd (ACN 643 297 189) (One Lake);
5. the fifth defendant, Point Piper One Pty Ltd (ACN 641 848 375) (PP One);
6. the sixth defendant, Kingland AC Pty Ltd (ACN 660 021 803) (Kingland); and
7. the seventh defendant, Ms Zhirou Li.
Ms Yang and Mr Li are estranged husband and wife. The seventh defendant, Ms Li, is the daughter of Mr Li and his former wife, Ms Changren Cheng. Ms Yang discontinued the proceedings against Ms Li on 27 April 2023.
By way of final relief, Ms Yang seeks declarations to the effect that certain dealings with shares in each of V29, B66, One Lake and PP One are void and of no effect. Ms Yang also seeks orders winding up V29, B66 and One Lake pursuant to s 461(1)(e), (f) and/or (k) of the Corporations Act 2001 (Cth).
On 12 December 2022, I made orders on the application of Ms Yang appointing Mr Bradley Tonks and Mr Mark Roufeil as provisional liquidators of V29, B66 and One Lake. There was evidence before the Court on that occasion to the effect that all of the shares in V29, B66 and One Lake had been issued to Ms Yang when each of those companies was incorporated. Ms Yang and Mr Li separated in about late June or early July 2022. By that time, Mr Li was the sole director of each of V29 and B66 and a director of One Lake. There was evidence that Ms Yang's shares in each of those three companies and the rights attached to those shares had been transferred or diluted in July 2022 as a result of dealings initiated or procured by Mr Li, acting unilaterally, without Ms Yang's consent and without the authority of any resolution of the relevant company in general meeting. Those are the dealings in respect of which Ms Yang seeks the declaratory relief referred to above.
As recorded in my reasons for judgment dated 12 December 2022, there was also evidence before the Court to the effect that B66 had sold a property in Bayview in about December 2021 for $15,000,000 and V29 had sold a property at Vaucluse in about June 2022 for $26,290,000. Ms Yang gave evidence that she did not know what had happened to the proceeds of sale of those properties. Mr Li gave evidence that he had provided the monies used to purchase those properties. At the same time, Mr Li's evidence identified Ms Cheng as the source of the funds that had been used by B66 and V29 to purchase those properties. Mr Li's evidence referred to bank statements showing the transfer of funds between Ms Cheng's bank account and the accounts of B66 and V29 at about the time the properties were purchased. Whilst the evidence given by Mr Li on that occasion may appear to be internally inconsistent, I understood the substance of his evidence to be that Ms Yang had made no financial contribution to facilitate the acquisition of the Bayview and Vaucluse properties by B66 and V29, and that he had arranged for all of the necessary funding to be provided by Ms Cheng. As I observed in my reasons for judgment, Mr Li's evidence did not disclose what had happened to the sale proceeds of the properties, including whether or not any of the sale proceeds had been applied to reimbursing Ms Cheng for the funds that Mr Li said she had provided for the purchase of each property.
The proceedings, including Ms Yang's application to wind up V29, B66 and One Lake, are listed for final hearing on 8 June 2023.
V29 presently owns property at in Wolsley Road, Point Piper, which is subject to registered mortgage AS643226 in favour of Athena Rose Capital Pty Ltd (AR Capital). Ms Cheng is the sole director and shareholder of AR Capital. On 11 May 2023, AR Capital entered into a contract for sale of the Point Piper property as mortgagee in possession.
The provisional liquidators filed an interlocutory process on 17 May 2023 in the name of and on behalf of V29 and B66, seeking:
1. an order restraining AR Capital, by itself, its servants and agents, from dealing with the proceeds of sale of the Point Piper property upon completion of the sale of the property, save for the payment of selling costs reasonably incurred and payment or adjustment of any rates, taxes, insurance or other outgoings payable in respect of the property; and
2. an order that AR Capital pay the proceeds of sale of the Point Piper property into court.
The interlocutory process was heard on 29 May 2023.
The applicants submitted that there were strong prospects of V29 being wound up following the final hearing on 8 June 2023, and identified a claim that any liquidators appointed to V29 might bring on behalf of V29 to recover the sale proceeds of the Point Piper property from AR Capital as the traceable proceeds of money allegedly paid by Mr Li to Ms Cheng in breach of his fiduciary duties as a director of V29 and held by Ms Cheng on constructive trust for V29 as a knowing recipient under the first limb of Barnes v Addy. [1] The applicants submitted that this possible future claim raised a serious question to be tried and that the balance of convenience favoured the grant of the interlocutory injunction restraining AR Capital from dealing with the sale proceeds, notwithstanding that no proceedings have been commenced against AR Capital, because there is a risk of the sale proceeds being dissipated or removed from Australia. Although they relied on this alleged risk, the applicants did not frame their claim as one for a freezing order and did not rely on rr 25.11 and 25.14 of the Uniform Civil Procedure Rules 2005 (NSW). The applicants further submitted that the mandatory interlocutory injunction requiring the sale proceeds to be paid into court was necessary to "secure" those funds, so as to preserve what they described as the status quo.
AR Capital is the first respondent to the interlocutory process but is not otherwise a party to these proceedings. AR Capital opposed the orders sought by the applicants.
The second and third respondents to the interlocutory process, Perpetual Corporate Trust Ltd (Perpetual) and MSQUARED Capital Pty Ltd (MSQUARED), were joined as respondents to the interlocutory process on the basis that they had lodged caveats against the title to the Point Piper property and may therefore be affected by the relief sought by the applicants in respect of the sale proceeds of that property. They consented to the orders sought by the applicants and, save for reading an affidavit describing the interests they claim in the property and the modest amounts that they claim to be owed, did not seek to be heard. Their claimed interests rank lower in priority than AR Capital's registered mortgage. Counsel appearing for Perpetual and MSQUARED at the hearing on 29 May 2023 was excused at a very early stage at his request.
The interlocutory process was served on the Deputy Commissioner of Taxation, who is neither a party to the proceedings nor a respondent to the interlocutory process, pursuant to orders made by Black J on 17 May 2023. The Deputy Commissioner did not seek to be heard.
For the reasons that follow, the applicants have failed to establish that the possible future claim by V29 raises a serious question to be tried.
[2]
II. Relevant evidence
At the hearing of the interlocutory process on 29 May 2023:
1. the applicants read an affidavit of Mr Tonks sworn on 17 May 2023 and tendered Exhibit BJT-1 to that affidavit. As I have mentioned earlier in these reasons, Mr Tonks is one of the provisional liquidators appointed to V29, B66 and One Lake on 12 December 2022;
2. the applicants read an affidavit of Ms Lydia O'Keefe affirmed on 18 May 2023, proving service of the interlocutory process on Perpetual Corporate Trust Ltd, Msquared Capital Pty Ltd and the Deputy Commissioner of Taxation;
3. AR Capital read an affidavit of Ms Nina Sokolov affirmed on 22 May 2023 and tendered Exhibit NS-1 to that affidavit. Ms Sokolov is a licensed real estate agent and director of Facai Trading Pty Ltd t/a Raine & Horne Avalon Palm Beach (R&H Avalon), which was engaged by AR Capital as the selling agent for the Point Piper property;
4. AR Capital read an affidavit of Ms Changren Cheng affirmed on 23 May 2023 and tendered Exhibit CC-1 to that affidavit; and
5. the applicants read a further affidavit of Mr Tonks sworn on 25 May 2023.
There was no cross-examination of any witness.
Mr Hyde of counsel, who appeared for AR Capital, informed the Court that AR Capital had offered to arrange for Ms Cheng, together with an interpreter, to be available for cross-examination. The applicants' solicitors had advised AR Capital's solicitors that Ms Cheng was not required for cross-examination.
What follows is a summary of the evidence adduced by the parties at the hearing of the interlocutory process. The summary should not be read as incorporating or conveying any findings of fact.
[3]
Evidence relating to the relationship and nature of financial dealings between Ms Cheng and Mr Li
It is convenient to set out the following evidence given Ms Cheng in her affidavit affirmed on 23 May 2023:
"Background
8. I was born on 24 December 1972 in Jiangxi, China. I am 50 years old.
9. I am an investor and businessperson. I have been actively involved in business since about 1990. I hold a Business Innovation and Investment (Provisional) visa (subclass 188A) and have many investments in Australia and overseas.
10. In about 1995, I met Changjin (John) Li. Mr Li is the First Defendant in this proceeding.
11. In 1999, I married Mr Li.
12. In 2002, Mr Li and I Had a daughter, Zhirou (Rose) Li.
13. In 2015, Mr Li and I divorced.
14. The divorce system in China is 'fault-based'. When Mr Li and I divorced, Mr Li was found to be 'at fault' and so I was granted custody of Rose and the right to all of the assets of the marriage. …
15. In 2018, Rose moved to Australia as a student. As Rose was only 16 and a minor at the time, someone was required to accompany her when she moved. Accordingly, Mr Li moved to Australia and took care of her until I moved to Australia from China in 2019.
16. I moved to Australia in 2019 on a Student Guardian Vias (subclass 590). At this time, I had tens of millions of dollars of my funds available to invest. I did not take all of my funds with me when I moved to Australia, but later transferred some of these funds after I had decided that Australia was a good place to stay. However, I did not speak English and I did not know what investments to make with my funds. To help me establish myself here and to make the right investments, I authorised Mr Li to access and use funds from my accounts. This authorisation was given on the condition that I was made aware of any withdrawals and the purpose(s) for which the funds were to be used.
17. The basis for giving the authorisation was because Mr Li is the father of my daughter, Rose, and I believed that Mr Li and I could still work together to give Rose a good future, notwithstanding our divorce.
My Agreement with Mr Li
18. In early 2020, shortly after I moved to Australia in 2019 …. I was open to the idea of utilising my funds for investment. Mr Li proposed investing my funds in various industries. I told Mr Li that I was open to this idea provided that the assets that my funds were used to invest in could be used as security for any loans that I made.
19. Around this time, I entered into a verbal agreement with Mr Li whereby Mr Li would come to me with projects to invest in, and I would loan funds to Mr Li or his companies to invest in those projects. To enable me to monitor and track the purpose of each advance, I agreed with Mr Li that the relevant funds were only to be transferred in multiple tranches, when the need for those funds arose. With this agreement with Mr Li, I did not always concern myself with the finer details of the projects, so long as it was clear that I would be making a return on my investment. Under this agreement, the funds I lent to Mr Li or his companies would be secured in my favour by the assets that were purchased with the funds I loaned to Mr Li or his companies."
[4]
Evidence relating to V29, the Vaucluse property and the Point Piper property
V29 was incorporated on 29 May 2020.
V29 purchased a property at 29 Carrara Road in Vaucluse, New South Wales for $10,900,000 on or about 5 August 2020 (the Vaucluse property).
Mr Li became the sole director of V29 on 19 November 2020.
Ms Cheng has given evidence that she entered into a loan agreement with V29 on or about 25 November 2020 that formalised her earlier verbal agreement with Mr Li described at [19] above (the V29 loan agreement). [2]
The parties to the loan agreement are Ms Cheng (as lender), V29 (as borrower), and Mr Li as guarantor. The agreement contained a preamble stating that:
"At the request of the borrower, the lender lends funds to the borrower for the purposes of purchasing as investment the real estate located at and surrounding 29 Carrara Road, Vaucluse, NSW 2030 and for expenses associated with any reconstruction work following the acquisition of the property, the specific terms of the loan are as follows: …"
Clause 1 of the loan agreement provided that the total amount of the loan would not exceed $30,000,000, to be released in tranches. Clause 2 provided that the loan was for a term of 10 years. Clause 3 stipulated a low interest rate of 15 per cent (applicable when there are no disputes between the borrower and lender or any third party in relation to any credit or debt or any legal issue), a high interest rate of 25 per cent (applicable in the event of such disputes) and a penalty interest rate of 35 per cent, which was described as "the punitive interest rate" that applied if it became necessary for the lender to commence legal proceedings against the borrower.
Clause 4 provided that Mr Li, as the director of the borrower, "guarantees without limit the loan obligations".
Clause 5 contained an agreement by the borrower that the lender is entitled to assign or transfer the loan without prior notice to the borrower.
Clause 6 contained an agreement by the borrower that it had a duty and obligation to cooperate fully with the lender to facilitate the registration of the borrower's assets as security for the loan.
Clause 7 provided that the lender was entitled to appoint a receiver to the borrower company if certain events occurred, including if the borrower failed to diligently assist the lender to register its security interest over the borrower's assets or if "the lender comes to the belief that the borrower's circumstances at the specific time will lead to the lender being unable to fully recover the loan and its interest".
[5]
• No account of the sale or the disbursement of the funds has been produced to my office which explains the reason for sale proceeds, including the capital profit of about $15.3 million, being disbursed to those people.
• The capital profit of about $15.3 million has was wholly disbursed and not been account for to date. The company appears to have been left without funds to pay the Capital Gains tax on the profit from the sale or any working capital to pay holding costs on the Wolseley Road Property."
In relation to the complaints recorded in the report that the statement of account in relation to the Point Piper property did not cover the period in which other properties had been purchased and sold (which I assume refers to the Vaucluse Property, being the only other property purchased and sold by V29), that the provisional liquidators had not been provided with records disclosing who had funded V29's purchase of the Vaucluse property, and that no account of the disbursement of the sale proceeds of the Vaucluse property had been provided to the provisional liquidators, I note that Mr Tonks has given evidence in his affidavit sworn on 25 May 2023 that, prior to being served with the exhibit to Ms Cheng's affidavit affirmed on 23 May 2023, the provisional liquidators had not been provided with a copy of the V29 loan agreement referred to at [23]-[30] above and the V29 loan statement referred to at [31]-[33] above.
According to Mr Tonks' affidavit sworn on 17 May 2023, V29 is not known to have any current assets other than minor cash at bank and the Point Piper property, and its financial position is "largely unchanged" since the provisional liquidators' report dated 24 February 2023
The provisional liquidators sent their report dated 24 February 2023 to the ATO on 28 March 2023. On 17 May 2023, the provisional liquidators' solicitors served the interlocutory process and Mr Tonks' affidavit on the ATO in accordance with the orders made by the Court earlier that day. The subject line of the email read: "The matter of Vaucluse 29 Pty Ltd, Bayview 66 Pty Ltd and One Lake Macquarie Pty Ltd". An employee of the ATO replied by email later that day, stating:
"This is to formally confirm with you that the ATO is conducting ongoing tax risk reviews on the entities in the matter listed above.
As part of our work. we will analyse the source of funds injected into the entities which were used to make asset purchases, as well as any financial arrangements entered into by those entities. Once the taxing points are confirmed we may look at raising assessments against the appropriate entities.
Naturally, the proceeds from any disposal of assets that are subject to the capital gains provisions will be considered. At this stage, in line with your findings, we are aware of several property disposals and are likely to be subject to capital gains tax.
We are also wary of cash from company accounts that appear to have, or could be at risk of being, dissipated impacting on the Commissioner's ability to collect on any likely tax assessments.
I wanted to raise these concerns with you even though the ATO has not fully completed its review, as we may potential be party to any litigation proceedings in the recovery of monies."
[6]
Evidence relating to B66
B66 was incorporated on the same day as V29 on 29 May 2020.
B66 purchased a property at Minkara Road, Bayview in New South Wales for $10,900,000 on or about 3 August 2020 (the Bayview property).
Mr Li became the sole director of B66 on 19 November 2020.
On 25 November 2020, Ms Cheng (as lender) and B66 (as borrower) entered into a loan agreement pursuant to which Ms Cheng agreed to advance up to $30,000,000 to B66 for the purpose of its purchase of the Bayview property and for other expenses following the acquisition of that property on terms that were otherwise substantially the same as the terms of the V29 loan agreement (the first B66 loan agreement). Ms Cheng gave evidence that the B66 loan agreement formalised the verbal agreement she had earlier made with Mr Li as described in paragraph 19 of her affidavit, which is set out at [19] above.
On or about 10 December 2021, B66 completed a sale of the Bayview property to a third party for $15,000,000.
On 15 March 2022, Ms Cheng (as lender) and B66 (as borrower) entered into a further loan agreement pursuant to which Ms Cheng agreed to advance up to $10,000,000 to B66 for the purpose of its purchase of a property in Crooks Road at Mandalong in New South Wales, and for building expenses following the acquisition of that property (the second B66 loan agreement). The terms of that agreement were otherwise substantially the same as the terms of the V29 loan agreement and the first B66 loan agreement.
Ms Cheng exhibited to her affidavit a loan statement in respect of both loans to B66, together with bank statements and transaction records. According to the loan statement, Ms Cheng had advanced amounts totalling $1,775,000 to B66 prior to the execution of the first B66 loan agreement and advanced further amounts totalling $11,172,349 before the Bayview property was sold on 10 December 2021. The loan statement records that, on 13 December 2021, the total principal and interest owing was $14,760,195. The loan statement records that the debt was reduced by a payment of $10,000,000 to Ms Cheng on that date. A settlement statement and bank statements tendered by the applicants confirm that the sum of $14,245,929 was payable to B66 on settlement of the sale of the Bayview property, that this sum was paid into B66's bank account on 10 December 2021, and that $10,000,000 was then paid out of B66's account to Ms Cheng's account on 13 December 2021. The loan statement records a series of further payments made to Ms Cheng during the period from 16 December 2021 to 11 February 2022 reducing, but not eliminating, the balance owing. The loan statement records interest continuing to accrue at the rate of 15 per cent per annum on the balance owing from time to time. The loan statement records further advances made by Ms Cheng to B66 on 15 March 2022 and on 17 June 2022 for the deposit and stamp duty payable in respect of the property at Crooks Road, Mandalong (the Mandalong property).
[7]
III. Principles
The general principles governing the grant of interim injunctions are well established: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; (2001) 76 ALJR 1; (2001) 185 ALR 1; [2001] Aust Torts Reports 81-627; (2001) 54 IPR 161; [2001] HCA 63, especially at [8]-[13], [18] (Gleeson CJ), [91] (Gummow and Hayne JJ, Gaudron JJ agreeing); Papas v Grave [2013] NSWCA 308 at [83] (Emmett JA, Sackville AJA agreeing).
The purpose of an interim injunction is to preserve the status quo until the rights of the parties can be determined at a final hearing or, to adopt the language of Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats, supra, to "prevent the practical destruction" of the right in respect of which the plaintiff claims final relief "before there has been an opportunity to have its existence finally determined". [5]
A plaintiff must establish that:
1. its claim for final relief raises a serious question to be tried in the sense that, if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be entitled to relief;
2. if the interim injunction is not granted, it will suffer irreparable harm for which damages will not be an adequate remedy; and
3. the balance of convenience favours the grant of the interim injunction.
As Newnes JA said in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 at [87] (McLure P and Corboy J agreeing), the first requirement:
"… does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks."
The inadequacy of a remedy in damages is often stated as a separate factor to be considered, but it is more accurately assessed as one aspect of the balance of convenience. The Court must determine whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; (1968) 42 ALJR 80; [1968] ALR 469; [1968] HCA 1.
[8]
IV. Consideration and determination
I have considered all of the written and oral submissions made on behalf of the applicants and AR Capital.
The evidence of Mr Li's dealings with the shares in V29 relied on by Ms Yang in support of her application to appoint the provisional liquidators, [6] together with the evidence about the company's financial affairs, [7] establishes a strong case for V29 to be wound up on the grounds of insolvency and/or pursuant to ss 461(1)(e), (f) or (k) of the Corporations Act. I accept that, if the applicants establish a claim that a liquidator appointed to V29 may bring on behalf of the company that raises a serious question to be tried, the Court has jurisdiction to make a freezing order if warranted in all the circumstances to prevent the frustration of the Court's winding up process by seeking to meet a danger that a prospective Judgment that could be obtained by a liquidator will be wholly or partly unsatisfied by assets of the prospective judgment debtor being dissipated or removed from the jurisdiction: Re Hpack Investment Pty Ltd (2020) 149 ACSR 303; [2020] NSWSC 1638 at [36]-[49]. However, as I have already mentioned, the applicants in the present case rely on the Court's power to grant interlocutory injunctions rather than invoking the freezing order jurisdiction.
AR Capital is the registered mortgagee of the Point Piper property.
Although the applicants' submissions referred to the Point Piper loan deed and Point Piper mortgage as documents that were "purported to have been executed weeks after V29 purchased the Point Piper Property" and referred to this as a "strange course of events", the applicants did not challenge Ms Cheng's evidence that the documents were in fact executed and ultimately did not submit that the documents were not genuine. The applicants did not identify any potential claim to avoid or set aside the Point Piper loan deed or the Point Piper mortgage, or any challenge to the registration of the mortgage. Nor did they dispute AR Capital's submissions that the appointment of the provisional liquidators to V29 was an event of default under the Point Piper loan deed and mortgage, which entitled AR Capital to take possession of the property and exercise its power of sale. [8] The applicants do not seek to restrain the sale of the property.
The applicants submitted that, if V29 is wound up, its liquidator or liquidators may commence proceedings for and in the name of V29 against AR Capital to recover the sum of $13,700,000, being a sum equivalent to the amount that the applicants contend that V29 paid to Ms Cheng from the sale proceeds of its Vaucluse property in excess of the amount that Ms Cheng had advanced to V29 under the V29 Loan Agreement. I note that the evidence summarised above discloses two payments made by V29 to Ms Cheng from the sale proceeds of the Vaucluse property in excess of the principal and interest owing under the V29 loan agreement, and that the total amount of those payments is $10,385,799. [9]
[9]
Conclusion and orders
For all of the foregoing reasons, the applicants have failed to establish that the possible future claim by a liquidator of V29 referred to at [110]-[111] above raises a serious question to be tried. In the absence of a serious question to be tried, neither the provisional liquidators' "concerns" about the transactions between V29, Ms Cheng and AR Capital, nor their duties as provisional liquidators, furnish a proper basis for the grant of injunctive relief restraining a secured creditor of the company in provisional liquidation from exercising its rights. [27] Even if the applicants had established a serious question, the matters referred to at [121]-[131] would have caused me to decline to grant the injunctive relief sought.
On 18 May 2023, AR Capital gave an undertaking to the Court, without admissions, not to deal with the sale proceeds of the Point Piper property. That undertaking should be discharged with immediate effect.
I am not aware of any reason why costs should not follow the event of the interlocutory process. Neither the applicants nor any of the respondents to the interlocutory process indicated that they would wish to be heard separately in relation to the question of costs once the outcome of the interlocutory process was known.
The orders of the Court are as follows:
1. Order that the interlocutory process filed by Vaucluse 29 Pty Limited ACN 641 319 851 (provisional liquidators appointed) and Bayview 66 Pty Ltd ACN 641 317 311 (provisional liquidators appointed) on 17 May 2023 is dismissed.
2. Order that the undertakings given to the Court on 18 May 2023 by the first respondent (Athena Rose Capital Pty Ltd ACN 660 020 842) are discharged with immediate effect.
3. Order that the applicants referred to in order (1) above are to pay the costs of the respondents to that interlocutory process on the ordinary basis, as agreed or assessed.
References to the terms of the loan agreement below are references to the certified English translation that was tendered at the hearing on 29 May 2023.
The report refers to a loan facility of $30,000,000 provided by AR Capital, but Ms Cheng is the lender under the loan agreement tendered at the hearing on 29 May 2023.
By the time of the hearing on 29 May 2023, the applicants had abandoned the theory aired in Mr Tonks' affidavit that the funds advanced by AR Capital for V29's purchase of the Point Piper property may be funds that "rightfully belong to … Bayview 66". I infer that this theory was abandoned after the provisional liquidators renewed the first B66 loan agreement, the second B66 loan agreement, and the loan statement referred to at [92]-[97] above.
See [19], [23] and [31] above.
See [68]-[69] above.
See [47] above.
See [19] and [37] above.
See [43] and [62] above.
See [83] above.
See [88] above.
See [41] above. The authority to operate AR Capital's bank account was ultimately the only way in which the applicants alleged that Mr Li was alleged to be "involved" in AR Capital, despite the contrary impression conveyed by paragraph 68 of Mr Tonks' affidavit sworn on 17 May 2023: see [77] above.
See [19] above.
Paragraph 69 of Mr Tonks' affidavit sworn on 17 May 2023, extracted at [77] above.
See [5], [47], [49], [57] and [59]-[64] above.
(2020) 149 ACSR 303; [2020] NSWSC 1638.
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; (2001) 76 ALJR 1; (2001) 185 ALR 1; [2001] Aust Torts Reports 81-627; (2001) 54 IPR 161; [2001] HCA 63 at [15]-[16] (Gleeson CJ).
[11]
Amendments
02 June 2023 - Coversheet amended
[19] amended
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 June 2023
Clause 8 of the loan agreement provided:
"Irrespective of the method in which the borrower sells the real estate or assets under its name, all proceeds from the sale must be transferred into the lender's account or into an account designated by the lender and be applied as payment against the lender's principal and interest, any remaining balance from it must be applied against any loan and interest owed to the lender by companies that are associated with the borrower. The companies that are associated with the borrower referred to herein means any company that has the same corporate structure despite having a different name, such as (but not limited to): Bayview 66 Pty Ltd, One Lake Macquarie Pty Ltd, Point Piper One Pty Ltd, etc."
Ms Cheng exhibited to her affidavit the following statement of account prepared by Mr Li at her request itemising the funds that Ms Cheng advanced to V29 on the terms referred to above, and the funds repaid by V29 to Ms Cheng (the V29 loan statement):
V29 sold the Vaucluse property to a third party for $26,290,000. According to the V29 loan statement, the total principal sum advanced by Ms Cheng to V29 prior to the completion of that sale on 3 June 2022 was $11,899,306. Interest had accrued on that principal sum at the rate of 15 per cent per annum. V29 had made one repayment of $1,000,000 on 4 May 2022, which had been applied to reduce the interest component of the amount owing.
The V29 loan statement records that V29 made further repayments to Ms Cheng totalling $10,000,000 during the period from 3 June 2022 to 6 June 2022, reducing the balance of principal and interest to $4,214,200 as at 7 June 2022. V29 made further payments totalling $9,600,000 on 7 June 2022, which exceeded the amount owing by V29 by $5,385,799. The V29 loan statement records that the amount of $5,385,799 was deducted from the debt owed by One Lake, returning the balance of the V29 account to zero. V29 then made a further payment of $5,000,000 to Ms Cheng on 17 June 2022, which is also recorded as having been deducted from One Lake's debts.
Ms Cheng (as lender), One Lake (as borrower), and Mr Li (as guarantor) had entered into a loan agreement on 18 October 2021 pursuant to which Ms Cheng had agreed to advance up to $30,000,000 to One Lake for the purpose of its purchase of a property in Foreshore Street, Eraring, and reconstruction expenses in respect of that property (the Eraring property). The terms of that loan agreement were substantially the same as the terms of the V29 loan agreement. According to the provisional liquidators' report dated 24 February 2023, which is referred to in more detail later in these reasons, One Lake did purchase the Eraring property for $6,000,000, and spent in excess of $5,000,000 on construction of a grand home on that site during the period from July 2021 to November 2022. The provisional liquidators' report describes One Lake as having been incorporated for the purpose of acquiring and holding real property. The report does not refer to any source of funding independent of Ms Cheng for One Lake's acquisition and development of the Eraring property. [3] Ms Cheng has given evidence that One Lake is indebted to her personally, but did not give evidence about the amount of that debt, which was not the subject of the provisional liquidators' interlocutory process.
Ms Cheng's affidavit exhibited transaction records in respect of each transaction recorded in the V29 loan statement. Those records are consistent with the V29 loan statement.
The total amount of the payments made by V29 to Ms Cheng during the period from 3 to 17 June 2022, as recorded in the V29 loan statement, is $24,600,000. Ms Cheng gave evidence that it is her understanding that V29 made all of those repayments out of the sale proceeds of the Vaucluse property that V29 received on 3 June 2022. Ms Cheng has not given any evidence about the source, or her understanding about the source, of the $1,000,000 paid to her by V29 on 4 May 2022, but nothing turns on that.
AR Capital was incorporated on 8 June 2022. Ms Cheng has given evidence describing AR Capital as an investment vehicle into which she transfers her personal funds that are then used to make investments. According to Ms Cheng's evidence, she caused her daughter, Ms Li, to be appointed as the sole director and secretary of AR Capital to give her experience in the operation and management of a company.
Ms Cheng has given evidence that Mr Li told her in a telephone conversation on 13 October 2022 that he needed funds to purchase the Point Piper property. Ms Cheng understood from the conversation that the property would be purchased by V29. Ms Cheng's affidavit gives an account of an initial advance made by Ms Cheng personally to Mr Li on 13 October 2022 for the purpose of V29's purchase of the Point Piper property. Ms Cheng has deposed that she then decided that the loan should be made by AR Capital rather than by her personally, because she considered that this would improve her status as an investor under her Business Innovation and Investment (Provisional) visa "because it would be more attractive to the immigration department if I lent the funds from a company". Ms Cheng then transferred $2,000,000 from her personal account to AR Capital and asked Mr Li to transfer to AR Capital the sum of $6,080,000 out of the $10,000,000 that Ms Cheng had lent him on 13 October 2022. These two transactions put AR Capital in funds to make the loan of $8,080,000 to V29 which, according to Ms Cheng's evidence, was made on 14 October 2022 by transfer from AR Capital to the account of Sydney Sotheby's International Realty. On 15 October 2022, Ms Cheng caused AR Capital to transfer a sum of $503,800 to Property Exchange Australia Ltd (PEXA) for the settlement of V29's purchase of the Point Piper property, and requested Mr Li to transfer the equivalent sum to AR Capital out of the remaining balance of the $10,000,000 that Ms Cheng had advanced to him on 13 October 2022. Transaction records in relation to these payments were exhibited to Ms Cheng's affidavit.
V29's purchase of the Point Piper property was settled on 18 October 2022. The purchase price was $8,080,000.
A loan statement dated 1 February 2023 that was provided by AR Capital's solicitors to the provisional liquidators' solicitors on or about 8 February 2023 is consistent with Ms Cheng's evidence referred to at [38] above. The loan statement records that AR Capital advanced a total sum of $8,602,000 to V29 during the period from 14 October 2022 to 25 November 2022, in the following instalments:
1. $8,080,000 on 14 October 2022;
2. $503,800 on 15 October 2022;
3. $3,200 on 7 November 2022;
4. $10,000 on 11 November 2022; and
5. $5,000 on 25 November 2022.
The applicants tendered a signed telegraphic transfer form for the $8,080,000 payment, and electronic banking records for the remaining payments. The applicants emphasise that those records include a transfer of $5,000 from AR Capital's account that was submitted and approved by Mr Li.
Ms Cheng has given evidence that she became aware on or about 28 October 2022 that Ms Yang had made allegations of impropriety against Mr Li in relation to the administration of some of his companies, including V29, B66, PP One, and One Lake. Ms Cheng has given evidence that she was not aware at that time that Ms Yang was Mr Li's wife, and she had understood that their relationship was a business relationship only. Ms Cheng has described her decision to remove Ms Li and to appoint herself as the sole director and secretary of AR Capital on 1 November 2022 as motivated by a desire to "protect" her daughter in the context of Ms Yang's allegations against Mr Li.
Ms Cheng has given evidence that the following documents were executed on 7 and 8 November 2022:
1. a Loan Deed between AR Capital (as lender), V29 (as borrower), and Mr Li (as guarantor) in relation to an advance of up to $30,000,000 at an interest rate of 15 or 25 per cent per annum (the "Lower Rate" and "Higher Rate", respectively), repayable on 8 June 2030 (the Point Piper loan deed);
2. a mortgage between V29 (as mortgagor) and AR Capital (as mortgagee) over the Point Piper property, which was subsequently registered on 18 November 2022 as registered mortgage AS643226 (the Point Piper mortgage). The terms and conditions annexed to the mortgage describe the secured monies as all monies owing by V29 to AR Capital under the Point Piper loan deed, or under "relevant agreements" (as defined), or for any other reason;
3. a Deed of Guarantee and Indemnity between AR Capital (as lender) and Mr Li (as guarantor); and
4. a General Security Deed between AR Capital (as the secured party) and Mr Li (as the grantor).
Clause 13 of the Point Piper loan deed provides that specified events of default cause the whole of the principal and interest owing under to become immediately due and payable and entitle AR Capital to enforce its security. Those events of default include the appointment of a provisional liquidator to the borrower or guarantor. Clause 4 of the Point Piper mortgage provides that all secured monies shall become repayable and AR Capital may exercise all or any of its rights upon the occurrence of an event of default, which is defined as including an event that entitles AR Capital to demand payment of the secured monies from V29 under the Point Piper loan deed.
Ms Yang commenced these proceedings on 1 December 2022.
On 8 December 2022, V29 entered into a contract for sale of the Point Piper property to Hua Chen for the price of $8,600,000. The contract provided for settlement on 16 December 2022, being a period of only eight days. However, the contract did not proceed to settlement. According to Mr Tonks' evidence, the contract was terminated by the purchaser.
Ms Cheng has given evidence that she became aware on or about 12 December 2022 that the provisional liquidators had been appointed to V29. As this was an event of default under the Point Piper mortgage, AR Capital engaged Clayton Utz to act as its solicitors in enforcing its rights under the mortgage. On 24 January 2023, Clayton Utz wrote to the provisional liquidators advising that they acted for AR Capital, the registered mortgagee of the Point Piper property. The letter stated that the provisional liquidators' appointment was an event of default under the mortgage and that AR Capital intended to take possession of the Point Piper property and exercise its power of sale in accordance with the mortgage. The letter stated that any surplus funds would be distributed to V29 after payment of the debt secured by the mortgage to AR Capital.
Ms Sokolov has given evidence that she was first approached with a request for R&H Avalon to act as the vendor's agent on the sale of the Point Piper property by the mortgagee in possession on or about 27 January 2023. R&H Avalon subsequently entered into an exclusive agency agreement with AR Capital on or about 7 February 2023 for the marketing and sale of the Point Piper property by private treaty, with expressions of interest to be received during the period from 7 February to 8 March 2023. At that time, Ms Sokolov's estimate of the selling price was between $9,500,000 and $10,450,000, as recorded in the agency agreement.
On 1 February 2023, the provisional liquidators' solicitors Piper Alderman wrote to Clayton Utz, apparently in response to Clayton Utz's letter dated 24 January 2023. Piper Alderman stated that the provisional liquidators have duties to V29 and are required to ascertain whether the mortgage is valid and the extent of the monies it secures. They advised that the provisional liquidators already had a copy of the Point Piper loan deed, and requested that AR Capital provide a copy of the mortgage, a statement of account recording all drawdowns and repayments for the facility secured by the mortgage and an indication of the current payout figure, including a breakdown of amounts of principal and interest.
Piper Alderman's letter also stated that the provisional liquidators had submitted a caveat for registration on the title to the Point Piper property consistently with their obligation to safeguard V29's assets from improper dealings, but that they would be willing to withdraw the caveat to facilitate settlement of any future contract for sale of the Point Piper property, subject to verification of AR Capital's mortgage and the amount said to be secured by it and on the condition that any surplus funds be paid to the provisional liquidators.
Mr Tonks has given evidence in his affidavit sworn on 17 May 2023 that the caveat referred to in Piper Alderman's letter was registered on the title to the Point Piper property, but was later withdrawn on 4 May 2023 after the provisional liquidators caused another caveat to be registered on 2 May 2023. That second caveat is as referred to at [66] below.
AR Capital took possession of the Point Piper property on 2 February 2023.
On 8 February 2023, Clayton Utz wrote to Piper Alderman in response to their letter dated 1 February 2023, enclosing copies of the Point Piper mortgage and statement of loan account referred to at [40] above, together with copies of the transfer authorisations for payment referred to at [4141] above. The letter advised that the total amount owing by V29 to AR Capital under the Point Piper mortgage was $9,060,313, being the principal sum of $8,602,000 plus interest calculated at the rate of 15 per cent up to 11 December 2022 at the rate of 25 per cent from 11 December 2022. The letter stated that interest continues to accrue at the 25 per cent rate in the sum of $5,973 per day.
The period for expressions of interest for the Point Piper property closed on 8 March 2023.
On 13 March 2023, Ms Sokolov received a copy of a valuation report dated 7 March 2023 that had been prepared by certified practising valuers on the instructions of AR Capital. The report estimated the market value of the Point Piper property as $8,000,000, or $7,200,000 in a forced sale scenario.
Ms Sokolov has given evidence that, based on market responses and offers presented for the Point Piper property during the expressions of interest period, it was apparent to her by mid to late March 2023 that her original estimated selling price of $9,500,000 would not be achieved. On 21 March 2023, Ms Sokolov issued a notice of revised selling price to AR Capital revising her estimate down to between $8,600,000 and $9,000,000.
On 31 March 2023, Clayton Utz wrote to Piper Alderman confirming that AR Capital was exercising its power of sale under and in accordance with the Point Piper mortgage and selling the Point Piper property at auction in its capacity as mortgagee in possession. Clayton Utz's letter appears to have been prompted by a communication sent by Piper Alderman to solicitors acting for other parties on 30 March 2023, alleging that Clayton Utz "have not responded to the provisional liquidators' enquiries about the security and underlying loan". That communication is not in evidence, but Clayton Utz's letter stated that they had responded comprehensively on 8 February 2023 to all requests made in Piper Alderman's letter dated 1 February 2023. Clayton Utz demanded that Piper Alderman immediately issue a further communication correcting the incorrect statement made in their 30 March 2023 communication.
The Point Piper property was auctioned on 1 April 2023. The property was passed in, as bids did not exceed the reserve price of $8,800,000. A report issued by R&H Avalon to AR Capital following the unsuccessful auction listed the offers that had been received and contracts that had been issued, including during the expressions of interest period. The report recorded that there had been one offer of $7,500,000, two offers of $8,600,000, one offer of $8,900,000 that was subject to a long settlement period or vendor finance, and one offer of $9,000,000 that was either subject to finance with settlement deferred until December 2023 or alternatively subject to vendor finance. The report recorded that all of those offers had been rejected.
On 5 April 2023, Piper Alderman wrote to Clayton Utz. In relation to the Point Piper property, the letter stated:
"9. This property was purchased at the instigation of Mr Li, by Vaucluse 29 Pty Ltd. Following that company coming under the control of the provisional liquidators, Mr Li intimated to them that he would like the property to be sold.
10. The property is now being sold at the behest of your client, Athena Rose Capital Pty Ltd, as mortgagee in possession. However, it is not a typical mortgagee sale, in that your client is not an ADI or major (or indeed minor) financial institution, but a closely-held company run by Mr Li's aforesaid ex-wife, Ms Cheng.
…
13. The sale is ostensibly to recover a loan made by your client which commenced with an $8M+ lump sum advance to Vaucluse 29 Pty Ltd by what was then Mr Li's 20-year-old daughter's company. This circumstance is curious, and the provisional liquidators would like to know more about it, particularly, where Mr Li's daughter's company got the money.
14. In this regard we note that, in paragraphs 17, 29 and 31 of an affidavit made by Ms Yang on 1 December 2022, Ms Yang gives evidence:
14.1 that two other very valuable properties were bought by companies associated with Mr Li, at his instigation, without any mortgage - 29 Carrara Road, Vaucluse, for $10.9M, and 66 Minkara Road, Bayview, for $11.5M; and
14.2 that Mr Li organised the purchase of, and funding for, those properties (without any mortgage).
15. The Minkara Road property was sold for a considerable sum prior to our clients' appointment. Our clients have not recovered the sale proceeds.
16. Meanwhile, the Carrara Road property (which was purchased for $10.9M in August 2020) was sold for $26M in June 2022.
17 As to what became of that $26M, bank statements recovered by the provisional liquidators clients indicate that almost all of it--$23M--was paid to Ms Cheng, your client's director.
18. Although this is not definitive evidence that the money used to purchase the property now being sold was actually the company's own money, re-routed via your client's director and her company, it is strong circumstantial evidence to that effect, particularly when one observes how the funds were advanced."
The letter went on to allege that banking records for the advances totalling $8,602,000 made by AR Capital to V29 during the period from 14 October 2022 to 25 November 2022 indicated that "Mr Li appears to control your client's bank account(s)".
Although paragraph 14 of Piper Alderman's letter referred to Ms Yang's evidence, it did not refer to Mr Li's evidence adduced at the hearing on 12 December 2022 to the effect that he had arranged for the purchase of the Vaucluse and Bayview properties using funds that Ms Cheng permitted him to withdraw from her bank account pursuant to a longstanding arrangement between them.
Piper Alderman's letter then stated that the provisional liquidators wished to ensure, before any money is released to AR Capital, that it is in fact owed to AR Capital and that the funds advanced by AR Capital to V29 and applied to the purchase of the Point Piper property were AR Capital's funds "and not simply the recycled proceeds of sale of Vaucluse 29 Pty Ltd's own property at 29 Carrara Road, a few months earlier".
The letter then requested that AR Capital give the following undertakings to the provisional liquidators and to the Court:
"Athena Rose Capital Pty Ltd, by its sole director Changren Chen, undertakes to Vaucluse 29 Pty Ltd and to the Supreme Court of New South Wales, as follows:
1. THAT none of the proceeds of sale of the property at 2/126 Wolseley Road, Point Piper NSW 2027 (Folio Identifier 2/SP13959) (Property) will be disbursed without the express written consent of either Bradley Tonks or Mark Roufeil (being the provisional liquidators of the registered proprietor, Vaucluse 29 Pty Ltd); and
2. THAT it will give the provisional liquidators at least 7 days' notice in writing of any proposed settlement of any sale of the Property."
Piper Alderman requested a response by 12 April 2023 and stated that, if the requested undertakings were not forthcoming, the provisional liquidators were likely to make an application in the proceedings seeking an injunction to the effect of the requested undertakings, or to request Ms Yang to make such an application.
Save for communicating to Piper Alderman that they were seeking instructions, Clayton Utz did not respond to the 5 April 2023 letter until 12 May 2023, as referred to at [71] and [76] below.
On 2 May 2023, the provisional liquidators caused V29 to lodge a caveat against the title to the Point Piper property prohibiting the recording of any dealing affecting the Registrar General from taking actions affecting V29's estate as registered proprietor (caveat AT54020). The caveat records the following details supporting the claim:
"Apprehension of improper dealing of transfer by mortgagee exercising power of sale invalidly or improperly, or by other persons attempting to cause the registered proprietor to enter improper dealings where registered proprietor is in provisional liquidation."
Mr Tonks has given evidence that, caveat AT54020 was lodged "due to concerns over the legitimacy of any exercise of power of sale" by AR Capital. Mr Tonks has referred to "apprehended improper dealings which were anticipated, particularly in relation to [AR Capital]" at the time the caveat was lodged. As referred to at [109] below, the applicants' submissions in support of their application for interlocutory injunctive relief did not challenge AR Capital's entitlement to exercise the power of sale under the Point Piper mortgage and the applicants did not seek to restrain completion of the sale.
Ms Sokolov has given evidence that she received a message on 10 May 2023 from the prospective buyer whose previous offer of $7,500,000 for the Point Piper property had been rejected by AR Capital. [4] The message stated that the buyer would sign an unconditional contract to purchase the property for $8,600,000 with 10 per cent deposit payable on completion and the balance payable on settlement, which was to occur on 18 May 2023. The message stated that the buyer's solicitor was in the process of preparing a certificate under s 66W of the Conveyancing Act 1919 (NSW) and requested confirmation that the vendor would be available to sign contracts at 9:00am the following day. Ms Cheng and Ms Sokolov have given evidence that Ms Sokolov communicated the offer to Ms Cheng, who gave instructions on behalf of AR Capital to accept that offer on 10 May 2023.
Contracts were signed and exchanged on 11 May 2023 between AR Capital, as vendor (as mortgagee in possession), and Tiger RMA Pty Ltd as purchaser. Consistently with the message referred to immediately above, the contract stipulated a price of $8,600,000 and provided for completion on 18 May 2023. The purchaser paid the deposit of $860,000.
The provisional liquidators became aware of the contract for sale on 11 May 2023. Piper Alderman immediately wrote to Clayton Utz requesting a copy of the contracts that had been exchanged and pressing for a response to their letter dated 5 April 2023.
On Friday, 12 May 2023, Clayton Utz sent a copy of the contract to Piper Alderman by email. The email stated that Clayton Utz had now obtained instructions in relation to the 5 April 2023 letter from Ms Cheng, who had been overseas from late March 2023, and that a full response to the 5 April 2023 letter would be forwarded on Monday, 15 May 2023. The email stated that the response would deny any suggestion that the secured loan advance was made by AR Capital to V29 "from monies somehow re-routed by Mr Li through sales of either the Carrara Road property or the Minkara Road property." The email also advised that AR Capital would not be giving the undertakings sought by the provisional liquidators in their 5 April 2023 letter, or any undertakings to similar effect.
On 16 May 2023, Clayton Utz wrote to the provisional liquidators' solicitors responding to the substance of their letter dated 5 April 2023, as had been foreshadowed in their email sent on 12 May 2023. The response denied that Mr Li controlled the bank accounts of AR Capital and stated that Ms Cheng had a poor command of English and relied on Mr Li to administer AR Capital's bank accounts in accordance with her instructions.
The response also stated that AR Capital was not a party to the proceedings and its only connection to the proceedings that was the Point Piper mortgage entered into and registered prior to the appointment of the provisional liquidators to V29. The response stated that, as V29 was in provisional liquidation, AR Capital was entitled to enforce its rights under the mortgage to recover the amount owing to it which exceeded the amount likely to be realised from the proposed sale of the Point Piper property.
The response vigorously denied the suggestion that AR Capital was not owed the funds that it claimed to be owed under the Point Piper mortgage or that monies advanced to V29 for the purchase of the Point Piper property totalling $8,602,000 were not funds of AR Capital. The response gave an account of a series of transactions whereby Ms Cheng had initially advanced $10,000,000 from her personal account to Mr Li on 13 October 2022 for the purpose of enabling him to fund V29's purchase of the Point Piper property, but had then decided that the loan should be made by AR Capital rather than by Ms Cheng personally. Ms Cheng had then put AR Capital in funds of $2,000,000 and had requested Mr Li to transfer to AR Capital some of the $10,000,000 sum that Ms Cheng had transferred to him on 13 October 2022, for the purpose of AR Capital then making the loan. Clayton Utz's letter attached banking records in respect of these transactions, supplementing the transactions records that had been provided on 8 February 2023 in respect of the advances made by AR Capital to V29 totalling $8,602,000 referred to at [40]-[41] above. I note that Clayton Utz's letter is consistent with Ms Cheng's evidence about these transactions in her affidavit affirmed on 23 May 2023, which I have referred to at [38] above.
The response described Ms Cheng as "an independently wealthy woman in her own right" and summarised the effect of the transactions referred to above as Ms Cheng personally putting AR Capital in funds to make the loan of $8,602,000 to V29.
The response concluded by declining to provide the undertakings requested by the provisional liquidators in their solicitors' letter dated 5 April 2023, and stating that any application for an injunction would be opposed and that AR Capital would seek security in respect of the undertaking as to damages.
The provisional liquidators caused V29 and B66 to file the interlocutory process on 17 May 2023. In his affidavit sworn on that date in support of the interlocutory process, Mr Tonks referred to the 16 May 2023 letter and deposed:
"64. … I have read this letter and note that it does not say that the funds advanced by the First Respondent [AR Capital] were not the monies received from the sale of properties previously owned by Bayview 66 and Vaucluse 29. The funds appear to have come to the First Respondent from Ms Cheng and Mr Li.
…
68. I am not satisfied as to whether the funds that came via the First Respondent were not one and the same as the sale proceeds which appear to rightfully belong to Vaucluse 29 and Bayview 66. I have serious concerns about the level of involvement of Mr Li in the First Respondent, and the very short settlement period of the Sale Contract.
69. I am aware that Mr Li is not an Australian citizen and spends long periods overseas. If settlement occurs, the settlement proceeds may be dissipated and leave Australia."
Ms Cheng and Ms Sokolov have given evidence that completion of the sale of the Point Piper property has been postponed pending the determination of the interlocutory process.
A statement of account for the Point Piper loan exhibited to Ms Cheng's affidavit records that V29 has not repaid any of the sum of $8,602,000 advanced by AR Capital, that the total amount of principal and interest owing under the loan as at 15 May 2023 was $9,910,536 and that interest is continuing to accrue in the amount of $5,973 per day (applying the default interest rate of 25 per cent per annum). Ms Cheng has given evidence that there is therefore unlikely to be any surplus proceeds from the net sale proceeds of the sale of the Point Piper property. I note that the sale price payable under the contract entered into on 11 May 2023 is less than the amount owing as recorded in the statement of account.
Ms Cheng has given evidence that AR Capital intends to loan part of the funds it expects to recover from the exercise of its power of sale under the Point Piper mortgage to a trust that is yet to be established, of which her daughter Ms Li will be the sole beneficiary. Ms Cheng intends that the trust will use that loan to fund part of the $40,500,000 purchase price of a commercial property in Queensland that the trust intends to acquire.
On 24 February 2023, the provisional liquidators provided a report to the Court identifying the information that they had gathered since their appointment, summarising their knowledge of the facts and circumstances concerning V29, B66, and One Lake.
The report recorded the following points as "common facts and observations which pertain to all three Companies":
"• They were incorporated to hold real estate property registrations in Australia and each have purchased valuable properties in the past.
• They do not appear to have earned income.
• They appear to have been wholly managed and controlled by Mr Changjin Li ('Mr Li'). He is the sole director of Vaucluse and Bayview. His daughter, Zhirou Li, is a co-director of One Lake Macquarie but Mr Li stated to me that she does not participate in the management of that Company.
• To our knowledge, they have not prepared financial statements or lodged tax returns with the Australian Taxation Office ('ATO') since their incorporation.
• They appear to be financially reliant on mortgage finance to make their purchases and to fund development and holding costs.
• The main provider of finance appears to have been Athena Rose Capital Pty Ltd, a company which appears to be a related to Mr Li in some way, but the relationship is unclear to us. Records indicate loan applications made to other non-related party lenders and financiers by Mr Li in the Companies' bank statements, but we have not seen any information that finance was received from any financier other than Athena Rose Capital.
• The financial position of each Company is uncertain. The Companies have not provided me with financial statements, or accounts or written financial records that correctly record and explain their transactions and financial position and performance or would enable true and fair financial statements to be prepared and audited.
• I have obtained bank statements from Westpac Banking Corporation, where the Companies held bank accounts.
• I have met with Mr Li twice during January 2023 to obtain information and discuss the Companies affairs and dealings. I have issued specific questionnaires on each company to Mr Li to try to obtain key information I require to account for the Companies past dealings because no financial statements or tax returns have been completed to my knowledge.
• The Companies have been involved with purchasing, renovating and subsequent sales of prestige real properties in and around Sydney NSW and made substantial profits. The Companies have not prepared or lodged tax returns to account for Capital Gains Tax ('CGT') payable by them on substantial capital gains Vaucluse and Bayview made from the sale of the investment properties. The ATO is a significant creditor of the Companies however the CGT payable remains unquantified at this time due to a lack of accounting."
The report provided the following summary of the provisional liquidators' estimate of the assets and liabilities of V29:
In relation to the Point Piper property, the report stated:
"• Vaucluse is the current registered proprietor of 2/126 Wolseley Road, Point Piper NSW 2027.
• The Wolseley Road Property is subject to a mortgage with Athena Rose Capital Pty Ltd, a related party to the director. The director of Athena Rose Capital Pty Ltd is Ms Changren Cheng, a former spouse of Mr Li.
• Mr Li's ROCAP disclosed that Athena Rose Capital Pty Ltd has a mortgage of approximately $30 million, however that appears to be a loan facility limit which does not appear to have been fully drawn. Athena Rose Capital Pty Ltd have provided a copy of the Loan Agreement for $30 million and with a mortgage statement stating they are owed $9.06 million. I do not believe that the statement of account that they have provided is complete. It does not cover the time period in which properties already sold were purchased and sold. The period the account appears to have been selective and not complete."
In relation to the Vaucluse property, the report stated:
"• Vaucluse formerly was the registered proprietor of 29 Carrara Road, Vaucluse NSW 2030.
• The Carrara Road property was purchased in August 2020 for $10.9 million and sold for $26 million in June 2022. The profit from this sale was about $15.3 million which givens to CGT payable of about $4.6 million to the ATO. However, no tax return has been lodged for that year.
• The records we have do not disclose who provided the funds to Vaucluse to pay the deposit or the settlement funds to buy the Carrara Road property.
• The bank statements obtained show that the proceeds from the sale of the property were transferred out to the following parties.
Party Amount ($)
Changren Cheng 23 million
Changjin Li 1.7 million
Ms Cheng has given evidence that, as at 15 May 2023, there is an amount of $1,082,643 of principal and interest owing to her under the B66 loan agreements.
I note that Mr Tonks has given evidence in his affidavit sworn on 25 May 2023 that, prior to being served with the exhibit to Ms Cheng's affidavit affirmed on 23 May 2023, the provisional liquidators had not been provided with copies of the first B66 loan agreement, the second B66 loan agreement and the statement referred to above. The provisional liquidators' report dated 24 February 2023 noted that they had no information at that time about who had funded B66's purchase of the Bayview property, and questioned why $10,000,000 of the sale proceeds had been paid to Ms Cheng and further sale proceeds had been paid to Mr Li. The report noted that B66 appeared to have disbursed the whole of its profit on the sale of the Bayview property, leaving it without funds to pay the capital gains tax on that profit.
According to the provisional liquidators' report dated 24 February 2023 and Mr Tonks' affidavit sworn on 17 May 2023, B66 has not completed its purchase of the Mandalong property and the provisional liquidators do not object to Mr Li's proposal to attempt to extricate B66 from that contract and recover the deposit. B66 does not have any current assets other than minor cash at bank and has estimated net liabilities of approximately $1,500,000, irrespective of whether it completes the contract to purchase the Mandalong property.
As I have mentioned earlier in these reasons, counsel for the applicants submitted that an alleged risk of dissipation or removal from Australia of the proceeds of sale of the Point Piper property was also relevant to the Court's determination of the claim for interlocutory injunctive relief. Any such danger must be established by evidence, rather than being merely asserted. The evidence may take a number of forms, including direct evidence that the defendant has previously acted in a way which shows that its probity is not to be relied on. However, it is not necessary for an applicant to show that the respondent has a positive intention of evading a judgment. It is sufficient if the respondent's conduct or proposed conduct is, objectively speaking, calculated to have the effect of frustrating the enforcement of any judgment that the applicant may obtain: UCPR, r 25.11; Samimi v Seyedabadi [2013] NSWCA 279 at [72]-[74] (McColl JA, citing Frigo v Culhaci [1998] NSWCA 88 at pages 6 and 8 per Mason P, Sheller JA, Sheppard AJA and Finn v Carelli [2007] NSWSC 261 at [4] per Brereton J (as his Honour then was)).
Notwithstanding that the applicants chose to frame their application as one for an interlocutory injunction rather than a freezing order, the injunction sought would have the same effect as a freezing order, and the proposed mandatory injunction requiring AR Capital to pay the proceeds of sale into court would go even further. It is therefore necessary to bear in the observations by Court of Appeal said in Frigo v Culhaci [1998] NSWCA 88, in a passage subsequently approved in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; (1999) 73 ALJR 657; (1999) 162 ALR 294; (1999) 45 IPR 1; [1999] HCA 18 at [51] (Gaudron, McHugh, Gummow and Callinan JJ), that a freezing order:
"… is a drastic remedy which should not be granted lightly ... if granted, [it] imposes a severe restriction upon a defendant's right to deal with his or her assets. It is granted at the suit of a plaintiff whose status as a creditor is in dispute … Its purpose is to preserve the status quo, not to change it in favour of the plaintiff. The function of the order is not to provide a 'plaintiff with security in advance for a judgment that he hopes to obtain and that he fears might not be satisfied…'"
Counsel for the applicants, articulated the allegations underpinning that potential claim in the following terms:
1. Mr Li breached his duties owed to V29 as its sole director by causing V29 to make payments to Ms Cheng from the proceeds of sale of the Vaucluse property in excess of the principal sums that Ms Cheng had advanced under the V29 loan agreement and interest on those principal sums;
2. Ms Cheng knew or should have known that V29 paid those monies to her by reason of Mr Li's breach of his duties to V29, and the monies were therefore impressed with a constructive trust in favour of V29 under the first limb of Barnes v Addy; [10]
3. it should be inferred that Ms Cheng transferred those monies, which she received during the period from 7 June to 17 June 2022, to AR Capital, which was incorporated on 8 June 2022 as Ms Cheng's investment vehicle;
4. it should also be inferred that those same monies were advanced by AR Capital to V29 for and in connection with its purchase of the Point Piper property during the period from 13 October to 25 November 2022;
5. the monies lent by AR Capital to V29 to fund its purchase of the Point Piper property were impressed with the same constructive trust in favour of VR because Ms Cheng's knowledge is attributed to AR Capital and/or because they are the traceable proceeds of the monies held by Ms Cheng on constructive trust for V29;
6. either:
1. the sale proceeds of the Point Piper property, when received by AR Capital as mortgagee, will be impressed with the same constructive trust in favour of VR; or
2. the monies lent by AR Capital to V29 to fund its purchase of the Point Piper property were, in truth, V29's own monies (by reason of the constructive trust), with the result that there was in truth no loan made by AR Capital to V29, nothing is owing under AR Capital's mortgage registered against the Point Piper property and V29 is entitled to receive the whole of the sale proceeds.
The applicants' submission that this potential claim raises a serious question to be tried as to whether AR Capital or V29 is entitled to the proceeds of sale of the Point Piper property depends on acceptance of the applicants' assertion that there is no explanation for the payments that V29 made to Ms Cheng out of the sale proceeds of the Vaucluse property between 7 June and 17 June 2022 after the principal and interest owing under the V29 loan agreement had been paid in full.
I reject the applicants' submission that Ms Cheng has offered no explanation for those payments totalling $10,385,799. Ms Cheng's affidavit exhibits the V29 loan agreement and the V29 loan statement, together with supporting transaction records. Clause 8 of the V29 loan agreement required all of the sale proceeds to be paid to Ms Cheng's account to be applied first to repay the principal and interest owing by V29 under that agreement, and secondly to repay any monies owed to Ms Cheng by associated companies, including One Lake. [11] The applicants do not submit that there is any serious question to be tried in relation to the validity or enforceability of the V29 loan agreement, including clause 8. Nor do they submit that there is any potential claim for relief under s 588FF of the Corporations Act in respect of that agreement. The V29 loan statement records that the amounts totalling $10,385,799 that were paid to Ms Cheng between 7 June and 17 June 2022 were applied to amounts owed to her by One Lake. [12]
I reject the submission made by counsel for the applicants that there was no evidence of any debt being owed by One Lake to Ms Cheng as at June 2022. There is evidence that, at that time, One Lake had borrowed from Ms Cheng in order to fund its $6,000,0000 purchase of the Eraring property and construction costs of approximately $5,000,000, and that One Lake remained indebted to Ms Cheng. There is no evidence of the amount owed by One Lake in June 2022, but counsel for the applicants did not identify any basis for inferring that One Lake did not owe Ms Cheng the sum of $10,385,799 recorded in the V29 loan statement as having been applied to One Lake's debt. [13]
Counsel for the applicants described $10,385,799 as an "extraordinary" sum of money paid to Ms Cheng and submitted that the payment is "of concern" to the provisional liquidators. Mr Tonks gave evidence that he was "not satisfied as to whether" the funds that AR Capital advanced to V29 for the purchase of the Point Piper property "were not one and the same as the sale proceeds which appear to rightfully belong to Vaucluse 29 and Bayview 66". [14] Neither those submissions, nor the evidence of Mr Tonks, raise a serious question to be tried about whether Ms Cheng was entitled to receive the payments totalling $10,385,799 out of the proceeds of sale of the Vaucluse property. In circumstances where the applicants do not point to any serious question to be tried concerning the validity and enforceability of the V29 loan agreement, that question depends on the theory that One Lake was not in fact indebted to Ms Cheng in the amount of at least $10,385,799 in June 2022. That theory does not rise above the level of speculation. I accept that applicants for interlocutory injunctive relief are not required to prove their case in respect of the potential claim, or to prove that it would probably succeed at trial. However, something more than unfounded speculation is required.
I mention for completeness two additional themes that featured in the applicants' submissions, which did not advance their contention that there is a relevant serious question to be tried.
First, the applicants submitted that it was "unusual" or "notable" that the V29 loan agreement had been entered into after Ms Cheng had already advanced approximately $11,800,000 to V29 for the purchase of the Vaucluse property. Counsel for the applicants described those advances as "past consideration", but did not submit that there was no consideration moving from the lender for the V29 loan agreement. The submission that the execution of the agreement after significant funds had already been advanced was "notable" did not grapple with Ms Cheng's evidence to the effect that the written agreement formalised an earlier verbal agreement, that it included promises by the lender to make future advances, and that the V29 loan statement records further advances made after the execution of the written agreement. [15] Counsel for the applicants was unable to identify how the timing of the execution of the V29 loan agreement supported the applicants' contention that the potential claim referred to at [111] above raises a serious question to be tried as to whether AR Capital or V29 is entitled to the sale proceeds of the Point Piper property.
Second, the applicants' submissions suggested that the seven-day period for completion of the contract for sale of the Point Piper property entered into on 11 May 2018 is cause for suspicion of some kind, without articulating precisely what should be suspected or how any such suspicion points to a relevant serious question to be tried. There is some evidence suggesting that the seven day period may have been stipulated by the purchaser, rather than by the vendor. [16] Even assuming that it was stipulated by AR Capital as the vendor, I fail to see how this gives rise to any suspicion in circumstances where AR Capital informed the provisional liquidators on 24 January 2023 that it intended to take possession of the property and exercise its power of sale. [17]
The applicants' contention that there is a serious question to be tried as to whether AR Capital or V29 is entitled to the proceeds of sale of the Point Piper property fails at the first stage of the analysis for the reasons explained at [112]-[115] above.
Looking beyond that first stage, it is doubtful that the period of approximately four months between the payment of the $10,385,799 to Ms Cheng under the V29 loan agreement and the incorporation of AR Capital in June 2022, and the advances made by AR Capital to V29 for the Point Piper property in October and November 2022, provides a rational basis for inferring that those advances were made by AR Capital out the funds that V29 had paid to Ms Cheng. The doubt arises not only due to the passage of time, but also from the evidence concerning the extent of funds available to Ms Cheng to make investments through AR Capital. [18] It is also difficult to reconcile Mr Li's apparent willingness to provide a personal guarantee and security for the repayment of the funds advanced by AR Capital to V29 with the applicants' theory that there is a serious question to be tried that those funds were "simply the recycled proceeds of sale of Vaucluse 29 Pty Ltd's own property at 29 Carrara Road, a few months earlier". [19] However, it is not necessary to express a more concluded view about those matters given that the first stage of the analysis reveals that there is no serious question to be tried.
Even if I had been persuaded that there was a serious question to be tried, I would not have considered that it had sufficient prospects of success to warrant the grant of the interlocutory injunctive relief sought by the applicants in all the circumstances of this case for the following reasons.
First, as counsel for AR Capital submitted, the applicants have neither commenced proceedings against AR Capital nor adduced evidence that they intend to do so or that they have even instructed solicitors to begin preparing a draft statement of claim. Moreover, the applicants adduced no evidence concerning the prospects of any liquidators who may be appointed to V29 securing funding to commence proceedings in respect of the potential claim referred to at [110]-[111] above. The information in the provisional liquidators' report dated 24 February 2023 suggests that the Deputy Commissioner of Taxation is the only potential creditor of V29 who may have an interest in funding such proceedings. [20] The Deputy Commissioner has been investigating the position for some time, has had the benefit of the provisional liquidators' report since 28 March 2023, and has been on notice of the application for interlocutory injunctive relief since 17 May 2023. There is no evidence that the Deputy Commissioner has indicated, even on a tentative basis, any interest in funding such proceedings. As counsel for AR Capital submitted, the Deputy Commissioner appears to be contemplating claims against Mr Li as the director of the taxpayer, rather than claims against AR Capital. [21] The applicants did not adduce any evidence of any discussions with the Deputy Commissioner concerning potential funding of such proceedings. The evidence does not provide any basis for inferring that there is a real prospect of future proceedings in respect of the potential claim referred to at [110]-[111] above.
Second, the sole basis on which the applicants submitted the Court should be persuaded to grant interlocutory injunctive relief against AR Capital, in circumstances where proceedings have not been commenced, was an alleged risk that the Point Piper sale proceeds will be dissipated or removed from Australia if the interlocutory injunction is not granted, resulting in an alleged risk that any judgment in respect of the potential claim (if proceedings are ultimately commenced and successfully prosecuted) might be wholly or partly unsatisfied. The existence of that risk was said to be demonstrated by the evidence of Mr Li's authority to operate AR Capital's bank account and his exercise of that authority to make one transfer of $5,000, [22] an alleged "propensity for transactions between related parties", a history of payments being made without regard to potential taxation liabilities, an alleged failure to provide the loan agreements to the provisional liquidators, and the alleged absence of any explanation for V29's payment to Ms Cheng out of the sale proceeds of the Vaucluse property of sums exceeding the principal and interest owing under the V29 loan agreement.
The applicants' submissions failed to grapple with Ms Cheng's evidence about the reasons why Mr Li had authority to operate bank accounts, [23] and did not articulate why Mr Li's use of that authority for one transaction of $5,000 - an insignificant transaction in the scheme of all of the other transactions referred to in the evidence - provided a proper basis for inferring that he might cause the Point Piper sale proceeds to be transferred out of AR Capital's account or transferred overseas. As counsel for AR Capital submitted, Mr Tonks' evidence that Mr Li is not an Australian citizen and spends long periods of time overseas does not support any such inference. [24]
The applicants' submission that this case involves a "propensity for transactions between related parties" implies that AR Capital can properly be characterised as a related body corporate or associated entity of V29 and One Lake. However, the applicants did not identify any evidence of matters that would support that characterisation consistently with ss 50 and 50AAA of the Corporations Act.
The history of payments being made without regard to potential taxation liabilities is attributable to conduct of V29, B66, and One Lake. As counsel for AR Capital submitted, that has no bearing on the alleged risk that AR Capital might dissipate and/or remove from Australia the sale proceeds of the Point Piper property.
I confess that I do not understand the applicants' complaint about the alleged failure to provide the V29 loan agreement (and, presumably, the loan agreements between Ms Cheng and One Lake and B66) to the provisional liquidators. The correspondence between AR Capital's solicitors and the provisional liquidators' solicitors discloses that the provisional liquidators did not request those loan agreements, notwithstanding that they must have been aware from my reasons for judgment given on 12 December 2022 that Mr Li had identified Ms Cheng as the provider for the funds used by V29 to purchase the Vaucluse property. [25]
Contrary to the applicants' submissions, Ms Cheng's evidence does offer an explanation for the payments made to her by V29 out of the Vaucluse property sale proceeds, as I have explained in some detail above.
For those reasons, the alleged risk of frustration of the court's process for the enforcement of any judgment that may be awarded against AR Capital (assuming in the applicants' favour that proceedings might ultimately be commenced) does not rise above the level of assertion. Such assertions provide no basis for restraining a registered mortgagee from dealing with the proceeds of its exercise of a power of sale of the secured property. Contrary to the applicants' submissions, the circumstances of the present case are very different to those in Re Hpack Investments Pty Ltd for all of the reasons that I have explained above. [26]
Third, although I do not regard Ms Cheng's evidence referred to at [80] above as establishing that the opportunity to purchase the Queensland property will be lost to the proposed trust if it cannot proceed with its plans to use the Point Piper sale proceeds for that proposed purchase, the evidence clearly establishes that AR Capital would be prejudiced if the interlocutory injunction were granted because interest would continue to accrue in the amount of $5,793 per day in circumstances where the total amount of principal and interest owing under the Point Piper loan deed already exceeds the value of the Point Piper property indicated by the result of the sales and marketing campaign conducted since February 2023 and the valuation report referred to [55] above.
Fourth, as counsel for the applicants candidly acknowledged, the usual undertaking as to damages that was proffered by the applicants provides no comfort for AR Capital because it is clear from the information in the provisional liquidators' report that V29 and B66 have no ability to pay any compensation that they might ultimately be ordered to pay in accordance with that undertaking if the interlocutory injunction were granted.