Corpique (No 18) Pty Ltd v Peng [2026] NSWSC 588 | Case summary

Corpique (No 18) Pty Ltd v Peng [2026] NSWSC 588 | Case summary | Zoe

Corpique brought these proceedings in December 2024 seeking over $2 million in damages, relying on alleged breaches of a lease of the Almond Inn motel at Tamworth, which had been terminated in June 2021. That had resulted in the lessee, Smart Dollars Tamworth Pty Ltd, seeking relief from forfeiture in this Court, which was resolved by an agreement. Consent orders were then made on the basis of undertakings given to the Court, which permitted Smart Dollars to re-enter: see Smart Dollars Tamworth Pty Ltd v Corpique No. 18 Pty Ltd [2023] NSWSC 936.
Smart Dollars did not comply with what had been agreed. That resulted in the revocation of the consent orders, Smart Dollar abandoning the motel, Corpique taking possession and pursuing an order for damages by a cross-claim which it brought against Mr Lin, Smart Dollars’ sole director and Mr Peng, who had provided a joint and several guarantee of Smart Dollars obligations under the lease: S**mart Dollars Tamworth Pty Ltd v Corpique No.18 Pty Ltd [2024] NSWSC 1211.
It was only shortly before the hearing that Smart Dollars made an application to extend time for service of its claim on Mr Peng, which was refused. With the result that at the hearing, it was given leave to discontinue against Mr Peng, Peden J then considering that there was no obvious prejudice to him as a result of the granting of the leave.
That reflected that Mr Peng still remained bound by the guarantee which he had given Corpique, when Smart Dollars entered the lease.
In September 2024, Peden J awarded considerable damages against Mr Lin, he having appeared unrepresented in the proceedings and not having led evidence to challenge the expert evidence Corpique relied on. Smart Dollars had by then already been deregistered, on Corpique’s case, in breach of requirements of the Corporations Act 2001 (Cth).
The damages Peden J awarded were not all paid by Mr Lin, who went into bankruptcy on a debtors petition in June 2025.
Corpique also made a demand for payment under the guarantee on Mr Peng, which he did not comply with. It then brought these proceedings against him in December 2024, which he defends.
Corpique having served its further statement of claim on Mr Peng after an order for substituted service on him was made by the Court. It had not sought such an order in the earlier proceedings.
The result was that Mr Peng entered an appearance in these proceedings in August 2025 and filed his defence in September.

There is no issue that Mr Peng remains bound by his guarantee and that the claims now pursued under it could have been pressed in the earlier proceedings, had the cross-claim been served on him within time.
There is also no issue that while Mr Peng had not maintained records required by ss 205B and 205C of the Corporations Act 2001 (Cth), his residential and email addresses were actually known when service of the cross-claim was attempted at an address he no longer lived at; that Ms Burke had also earlier communicated with him on his mobile phone; that no attempt was made to serve the cross-claim on Mr Peng at his residential address, for reasons Mr Hutchins explained; and that even after it was emailed to him and Mr Hutchins spoke to him, no application for substituted service on Mr Peng was made.
Whether the claimed abuse was established by the evidence, was still disputed.
There is also no issue about the applicable law, which includes:
Summary dismissal is not often ordered: Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1 and General Steel Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; [1964] HCA 69;
The onus falls on the applicant to establish a just basis for the order sought;
It will be met when use of the Court’s procedures occasions unjustifiable oppression, or brings the administration of justice into disrepute: UBS at [1];
Abuse of process requires a consideration of all of the circumstances, in light of the public and private interests involved, taking account of all of the facts and focusing on the crucial question. Namely, whether in those circumstances, a party is misusing or abusing the Court’s process by pursuing issues that could have been pursued in earlier proceedings; UBS at [110]; and
The parties’ competing cases having to be approached in light of the requirements imposed by the Civil Liability Act 2005 (NSW). It specifying the overriding purpose of the legislative scheme to be the just, quick and cheap resolution of the real issues in the proceedings and imposing duties on the Court and the parties, in respect of the achievement of that purpose and imposing other relevant obligations: Civil Procedure Act 2005 (NSW), ss 56-60.

In resolving what is in issue on the motion, attention must thus be paid to the attempts made to serve the cross-claim; what was then known; whether any notice was given to Mr Peng; the length of the delay which has resulted from the discontinuation of the earlier proceedings; the reasons for the delay; whether it was deliberate; the conduct of the parties respectively; and the hardship or prejudice caused by the making or refusal of the orders Mr Peng seeks.
The circumstances which have to be considered thus include that:
Mr Peng having not been relieved of his guarantee, he was properly made a party to Corpique’s cross-claim;
Despite this, Corpique discontinued its cross-claim against Mr Peng only because, having failed to serve him in time, its belated application for extension of time shortly before the hearing was refused. Reasons for which were not published;
Had it been granted, the impending hearing of the cross-claim would undoubtedly have had to be adjourned, given Mr Peng’s right to procedural fairness. But still, the delay which has undoubtedly resulted from the discontinuance and its consequences, would have been avoided;
Why Mr Peng was not served within time, at his known residential address, was revealed to have been because of an incorrect assumption made by Corpique’s solicitor;
The result was an attempt, within time, at personal service at an address where Mr Peng no longer lived, despite his then current address being known, as well as his email address and phone number;
In those circumstances, that Mr Peng had not notified ASIC of the change of his residence, was immaterial to Corpique’s ability to serve the cross-claim within time. It being in possession of information which not only permitted it to communicate with him about the proceedings it had commenced and the service of the cross-claim it was seeking to effect, but to effect service on him at his home; and
If personal service on Mr Peng failed, it also had the means to seek to effect service on him by agreement, it having the means to communicate with him by email or phone. That also permitting Corpique to seek an order for substituted service, within the 6 months for service of the cross-claim allowed by the Rules.
It follows that it cannot be accepted that service of the cross-claim was not effected on Mr Peng because of any fault on his part. Despite the evidence on which Corpique relied.
Namely, that when service of process in these proceedings was later sought to be effected at his home, the process server encountered a couple outside his residence, who denied that they were Mr Peng and his wife, or that they knew him.
Mr Peng was cross-examined and denied having sought to avoid service. Still Corpique urged the conclusion that he had lied to the process server.
I am unable to come to that conclusion. The evidence including as it does that the process was shown a photograph and was not able to identify that the person he spoke to was Mr Peng.
It is also relevant that on her evidence, Ms Burke had communicated over a number of years with Mr Peng by phone. Despite which he was not called to advise him that Corpique was seeking to serve the cross-claim on him.
When the earlier proceedings were commenced, Mr Hutchins also knew both Mr Peng’s residential and email addresses, because of other matters in which he had acted. He claimed that there had been difficulties in serving Mr Peng, but the reality is that service was not attempted at his then known address, Mr Hutchins having assumed he no longer lived there. Nor was Mr Peng given email notification that service was being sought to be effected on him.
Instead, in September 2023, service was sought to be effected at an address in Croydon, where it appears that Mr Peng had not lived for some time, obtained from ASIC records. An investigator was also engaged to locate him. He was unable to locate a forwarding address. Still service of the cross-claim at his known address was not attempted.
Mr Hutchins obtained Mr Peng’s phone number from another person known to have had contact with him in September 2024. But still he did not call Mr Peng. It seems that it was only then that he sent Mr Peng the cross-claim by email, as it appears he could have done the preceding year. Mr Peng then made contact by both email and phone, advising that Smart Dollars no longer had anything to do with him.
It seems to have been this advice which triggered the belated, unsuccessful application for an extension of time for service of the cross-claim.
These events were relied on by Corpique as evidencing an intention, on Mr Peng’s part, of not being involved in the earlier proceedings, as he could have been. I am unable to accept this, or that he was seeking to avoid service, as it also contended.
There is no suggestion that Mr Peng — whose first language is not English and had, as a result, some difficulty in understanding all that was put to him in cross-examination — was legally advised at any relevant time before these proceedings were brought.
On the evidence it appears that when Mr Peng learned of the cross-claim in 2024, he did not appreciate the consequences of his continuing obligations under the guarantee, given what he told Mr Hutchens.
That according with his earlier advice to Corpique, when it drew breaches of the lease to his attention. Namely, that his involvement with Smart Dollars had come to an end as the result of a falling out with Mr Lin, after which he had been repaid what he had invested. And with him not having taken any steps to be released from his guarantee.
Still, it may not be overlooked that even if Mr Peng was entirely ignorant of the consequences of the guarantee he had given, it is well settled that in the absence of fraud or some other special circumstance, a person cannot escape the consequences of signing a document, even if it is proved that he or she did not understand it: Wilton v Farnworth (1948) 76 CLR 646 at 649; [1948] HCA 20, applied in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [45].
The general policy of the law being that people should honour their contracts, that forming “part of our idea of what is just”: Baltic Shipping v Dillon (1991) 22 NSWLR 1 at 9 per Gleeson CJ, applied in Provident Capital Ltd v Naumovski [2013] NSWSC 40 at [297]-[299].
I consider that this settled law tells strongly against the relief Mr Peng pursues. This being what has given me difficulty in arriving at a conclusion which favours the making of the orders Mr Peng pursues.
It is also relevant that there is no issue that these proceedings were brought within time and that what Corpique pursues does not depend on orders having been made against Smart Dollars.
But given what was decided in UBS, that does not preclude a conclusion that the claimed abuse has been established.
It is relevant that consent orders were initially made in favour of Smart Dollars in the earlier proceedings, when neither party had taken any steps to join Mr Peng, Smart Dollars then submitted that it was ready, willing and able to pay such repair costs as were not structural and properly the responsibility of the tenant: Smart Dollars Tamworth Pty Ltd [2024] at [34].
After Smart Dollars failed to make those payments, Corpique pursued its cross-claim, Peden J concluding, with my emphasis, that:

Those concluding words shed light on the opportunity of which I am satisfied Mr Peng was deprived at the hearing of the cross-claim. He not having been served within time, as he should have been, given his recognised interest in the claim Corpique pursued against Smart Dollars and under the guarantee.
Her Honour’s observations reflect Mr Peng’s interest in what was in issue in the earlier proceedings, which Corpique had actually recognised when it properly named Mr Peng as a party to its cross-claim.
Its failure to take available steps to serve the cross-claim and then discontinuing the proceedings, after its belated application for an extension of time failed, it must be accepted, deprived Mr Peng of the opportunity he should have been given, to be heard about matters which affected him.
The evidence also establishes that despite Mr Peng’s recognised interest in what it pursued by its cross-claim, Corpique did not take available steps which would have resulted in its timely service on him. So that all that was in issue about the matters the subject of the earlier proceedings, could have been dealt with to finality at the 2024 hearing.
The result, on Corpique’s approach, was that Mr Peng had suffered no disadvantage, not being bound by the facts found against Mr Lin: Evidence Act 1995 (NSW), s 91. It accepting that it was not entitled to rely on the earlier judgment, with the result that it would again have to prove its case in these proceedings, on what it expected would be different evidence.
Corpique also accepting that there have been relevant changes in facts, since the earlier hearing. About which further expert evidence might understandably have to be called, given changes such as increased costs of repairs which have yet to be undertaken, for example.
That, it seems to me, not only also helps establish the disadvantage which has resulted for Mr Peng. But reflects that Corpique did not comply with the obligations which s 56 of the Civil Procedure Act imposed on it in the earlier proceedings, as it ought to have. That having required its adherence to the Rules, including by timely service of the cross-claim on Mr Peng at his known address, or at least, by making email or phone contact with him, so that if necessary, a timely application for substituted service could have been made.
Corpique’s failures have not only resulted in considerable, unnecessary delay in the resolution of what it pursues against Mr Peng: Civi**l P**rocedure Act, s 59. But unnecessary additional cost and use of Court resources, contrary to what ss 57 and 58 contemplate. This must all be taken into account in resolving whether the claimed abuse has been established.
Like Mr Lin, Mr Peng was liable to be sued on the guarantee they each gave for the cost of the scope of works which Mr Lin put in issue in the earlier proceedings. But Mr Peng not having been served, resulted in there having been no challenge to Corpique’s case. It having led expert evidence and Mr Lin not having been legally represented, nor even providing any alternative figure to that Corpique pursued: at [38]. The delay since the earlier proceedings were brought, Smart Dollars having been deregistered and Mr Lin having been made a bankrupt, will all undoubtedly also add to the cost resulting from Corpique’s pursuit of these further proceedings against Mr Peng.
That would all have been avoided by timely service of the cross-claim.
The further potential result, that different conclusions may be arrived at in these proceedings than those reached in the earlier proceedings, was not disputed. With the further potential result that inconsistent judgments will be given. Even if it be accepted that possibility is contemplated by r 6.21, in all of the circumstances which have to be considered, it is not one which accords with what the interests of justice demand, proceedings having earlier been brought against Mr Peng as they were.
In Shao v Crown Global Capital Pty Ltd (in prov liq) [2025] HCA 43; (2025) 99 ALJR 1547 it was concluded, in the context of quite different commercial arrangements, that it had not been an abuse of process for Ms Shao to seek first to recover from Mr Peng, before proceeding against the Crown respondents. The agreement there in question having contained two separate obligations. The first, an obligation to repay the debt owed to Ms Shao and Mr Peng jointly. The second, concerning the manner in which the debt was to be discharged, which was owed to Ms Shao and Mr Peng jointly and severally.
The dispute there pursued having arisen in circumstances where Ms Shao had previously sued Mr Peng to recover the claimed monies, but had made only a partial recovery: at [35]. Crown Global claiming that Ms Shao’s later claim against it was thus an abuse of process, because she should have pursued the claim against the Crown respondents, as part of her earlier proceedings against Mr Peng: at [36].
This was rejected. It being concluded that despite the proceedings having been brought against the Crown respondents some six years after the first proceedings, in circumstances where the earlier proceedings could also have been maintained against them, they having been named as parties but never served, there had been no abuse.
It being accepted that there had been good reasons for Ms Shao excluding them from the earlier proceedings, given what was in issue between her and Mr Peng and her remedies being cumulative, not alternative. That having required no choice to be made between them and the claim against the Crown respondents being mitigated to “potentially to nothing”, with the result that there would then be no wasted litigation: at [64]-[66].
The analogy there sought to be drawn with UBS was thus rejected. It being accepted that there had been good reason for the course Ms Shao had pursued: at [57].
I am satisfied that such good reason was not established in this case.
The failure to serve Mr Peng, who like Mr Lin had an interest in what Corpique pursued against Smart Dollars, not having been the result of any good reason, but rather appearing to have been the result of representative error and forensic decisions made during the earlier proceedings. The approach pursued not having accorded with the obligations then imposed on Corpique by the Civil Procedure Act.
In UBS, the two conditions enlivening the power to permanently stay proceedings were identified to be “where the use of the court’s procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute”: at [1], citing Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77 and Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 519 [25]; [2015] HCA 28.
In Tomlinson, it having been recognised that “making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel”: at [26] citing Walton.
It seems to me that this is such a case. The claims pursued in these proceedings against Mr Peng not only having been raised in the earlier proceedings, but Corpique’s failure to pursue them — with the result its later commencement of these proceedings to pursue the same claims — being because of its earlier failures and not good decisions. The likely results of those failures helping to bring the administration of justice into disrepute.
UBS was concerned with an order staying proceedings in the Federal Court, earlier proceedings having been pursued by the trustees of a family trust against UBS in this Court and UBS also having pursued proceedings in the High Court of Singapore. The Australian proceedings concerned losses claimed to have arisen in connection with a pledge to secure an investment company’s liabilities under a credit facility.
In resolving the claimed abuse, it was concluded that account also had to be taken of both the public and private interests involved, with the result that the Federal Court proceedings were stayed as an abuse of the processes of that Court: at [8].
The High Court’s resolution of what lay in issue about the claimed abuse of process also had regard to the timely, cost effective and efficient conduct of modern civil litigation, taking into account wider public interests than those of the parties to the dispute: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 213 [98]; [2009] HCA 27. And in this State, encapsulated in s 56 of the Civil Procedure Act: at [38].
Integral to a just resolution being the minimisation of delay and expense. It being recognised that “abuse of process principles may be invoked to prevent attempts to litigate a claim that should have been litigated in earlier proceedings as well as attempts to re-litigate a claim that has been determined”: UBS at [39], citing Aon at [33].
It seems to me that this is also such a case.
Even though not every claim which could have been raised in earlier proceedings makes the raising of it in later proceedings an abuse of process: UBS at [43].
It is now recognised, however, that “any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice”: at [45]. Serial proceedings discontinued prior to judgment being “an obvious example of an abuse of process”: at [46].
Also in issue in UBS was whether the grant of an unconditional discontinuance, of the kind Corpique obtained, could ever amount to an abuse of process, r 12.1 providing as it does that discontinuance of proceedings is no bar to bringing fresh proceedings for the same relief: at [47].
Corpique was granted the leave to discontinue against Mr Peng which it only sought at the hearing, because it was concluded that would not disadvantage him. He presses an entirely different view in these proceedings. One which I am satisfied must be accepted.
The result of the discontinuance was Corpique’s later pursuit of his guarantee not only after the claims against Mr Lin had been heard, as they were, but after they had been determined and he had gone into bankruptcy, having paid only a small part of the damages Corpique was awarded. Mr Lin not having resisted their quantification, not having been legally represented or led evidence to challenge the case it pressed.
With the pertinent result that at the hearing of the claims pursued against Mr Peng in these proceedings it is likely, Corpique contended, that its damages are now even higher, despite what Mr Lin has already paid it.
This does not appear to be the result of Corpique’s pursuit of any forensic advantage, but of errors and forensic decisions made, for which Mr Peng does not appear to have any responsibility. As well as of the passage of time and what has since occurred. Which it must be accepted has had an adverse impact on Mr Peng, which would have been avoided, had the earlier proceedings not been discontinued against him as they were.
The fact of the discontinuance against Mr Peng is thus relevant: UBS at [56]. As is the possibility that had he been an active party in the earlier proceedings, he may have influenced the conclusions which were there arrived at. He could certainly then have taken issue with the calculation of damages which Mr Lin appears not to have challenged, as well as pursuing a claim against Mr Lin, who was not then bankrupt.
That the whole of the dispute between Corpique, Smart Dollars and the two guarantors was before this Court in the earlier proceedings is thus relevant: UBS at [58].
As is what Corpique seeks to pursue, namely, the staged and repeated conduct of what is factually the one dispute about the enforcement of the guarantee it received. With, I am satisfied it must be accepted, “attendant duplication of court resources, delay, expense and vexation”, which is also “likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys”: at [59].
This is what has finally persuaded me that the disputed orders should be made, the claimed abuse having been established.
The Civil Procedure Act and its concern with the just, quick and cheap resolution of the real issues in the proceedings and the elimination of delay, not justly permitting parties to proceedings to conduct themselves as Corpique did. If what the dictates of justice require is to be achieved, as s 58 requires.
That is a conclusion I have not lightly reached, given the long held view of the law that people should honour their contracts, which I have earlier explained.
But the other matters which now have to be weighed in the balance, I am persuaded, must result in the acceptance that Corpique pursued its rights in the earlier proceedings as it did, only abandoning their pursuit against Mr Peng at the hearing, despite them all depending on the same facts and law, because of errors and decisions for which he is not responsible. And which have had an unnecessary, adverse impact on him and the administration of justice.
The result being that it is an abuse of process for Corpique to now again exercise its rights, as it seeks to do in these further proceedings, given all of the consequences I have explained.
The obligations imposed on it by the Civil Procedure Act obliged Corpique to pursue the cross-claim it brought against Mr Peng, together with the claims which it pursued against the other defendants, by the prompt service of the cross-claim on him, in accordance with the Rules earlier discussed.
The evidence not having shown that Corpique was not then in a position to do so, I am satisfied that Mr Peng has established that abuse of process has resulted from the course it has pursued.
The timely, cost effective and efficient conduct of litigation in this Court, having to take into account wider public interests than those of the parties to the dispute Corpique continues to pursue in these further proceedings.
With the result that it must be accepted that its attempt to litigate in these proceedings, claims that it could and should have pursued to finality in the earlier proceedings, does involve an abuse, given how Corpique had brought the entire dispute before the Court in the earlier proceedings, but failed to prosecute its claim against Mr Peng as it then could have.
The course it pursued not only having resulted in unnecessary delay and increased damages and costs, but unnecessary use of court and administrative resources and an overall decrease in the quality of justice, with which the Civil Procedure Act is concerned to ensure.

Corpique (No 18) Pty Ltd v Peng

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

The motion

Conclusion

Issues

The parties’ cases

Was the claimed abuse established?

Costs and orders

Parties

Legislation Cited (6)

Cases Cited (25)