Dawn Jade Limited v Himanshu Girdhar Dua

The Facts 3The plaintiffs are investment companies incorporated in the British Virgin Islands (BVI). Their principal place of business is Hong Kong. Mr Dua is a shareholder in Greenair Limited (Greenair), which is also incorporated in BVI and Dua Forestal SRL. He is an Australian resident. 4By two sale and purchase agreements dated 27 January 2011, Mr Dua agreed to sell his shareholding in Greenair to Dawn Jade (the Dawn Jade Contract) and in Dua Forestal SRL to Gao Fu (the Gao Fu Contract). The deposit monies (US$400,000 from Dawn Jade and US$600,000 from Gao Fu) were paid to Mr Dua on exchange, which occurred on 9 February 2011. The balance of monies for the sale of the shares were due on completion. 5According to the recitals to the Gao Fu Contract, Dua Forestal SRL owns a forestry logging project in Bolivia and has entered into exclusive logging contracts with 21 indigenous communities in Bolivia, as a result of which it has logging rights over an area. According to the recitals to the Dawn Jade Contract, Greenair operates a reduced emissions from deforestation and degradation project (REDD project) in Bolivia and has acquired certain carbon credits generated by certain areas occupied by indigenous communities, of whom it is the exclusive agent. 6The contracts are in relevantly similar terms. They provide: "Conditions Fulfilment Date" means the date on which the Conditions are fulfilled (or waived by the Purchaser (but in any event no later than 15 June 2011 or such other later date as the Parties may agree in writing);" (cl. 1.1) 7Completion is expressed to be subject to specified conditions being satisfied or waived (by the purchaser) on or before the Conditions Fulfilment Date (cl. 3.1). The purchaser may in its absolute discretion at any time waive in writing all or any of the conditions set out in cl 3.1 (cl. 3.3). Clause 3.4 provides: "(i) If any Condition is not satisfied (other than Condition 3.1(b) which shall be dealt with as per Clause 3.4(ii) below) on or before the Conditions Fulfilment Date, this Agreement shall immediately terminate upon which the Vendor shall forthwith fully refund the Deposit to the Purchaser and other than this obligation on the Vendor's part, no party hereto shall have any further obligations to any of the other parties hereto in respect of the sale and transfer of the Sale Shares save for antecedent breaches. (ii) If Condition 3.1(b) is not satisfied on or before the Conditions Fulfilment Date, this Agreement shall immediately terminate and the Deposit shall be forfeited by the Purchaser, upon termination "of this Agreement pursuant to" this Clause 3.4(ii), no party hereto shall have any further obligations to any of the other parties hereto in respect of the sale and transfer of the Sale Shares save for antecedent breaches." 8By clause 13.3(a) the vendor irrevocably appointed Niranjan Arasaratnam as his process agent to receive service of any proceedings in Hong Kong. 9It is common ground that: (1)the conditions were not fulfilled by 15 June 2011; (2)there was no written waiver by the purchaser; and (3)the contract was legally terminated on 15 June 2011, being the Conditions Fulfilment Date. 10By letters dated 4 January 2012 Baker & McKenzie wrote on behalf of Mr Dua purporting to terminate the Contracts and retain the deposits paid by Dawn Jade and Gao Fu, on the basis of cl. 3.4(ii) of the Contracts. 11By letters dated 10 January 2012 Gao Fu and Dawn Jade wrote to Baker & McKenzie in response to the letter of 4 January 2012, in identical terms that included the following: "It's a totally fabricated statement that Dr Chung or Mr Kwan has ever informed your client that Gao Fu was no longer ready and willing to perform its obligations or has ever made any sort of statement to such effect. Quite to the contrary, there were still emails exchange and phone calls between Mr Kwan and your client AFTER the meeting on 20 October 2011 discussing details of the transaction. It would be very strange why there were such subsequent discussions if what your client put forward in the Letter is true." 12On 11 April 2012, the plaintiffs commenced proceedings against Mr Dua in the High Court of the Special Administrative Region Court of First Instance (Hong Kong Proceedings) to recover the deposit amounts paid to Mr Dua. It is common ground that Mr Dua was served with the court documents in the Hong Kong Proceedings in accordance with the Contracts. 13By letter dated 27 April 2012 Baker & McKenzie, Mr Dua's solicitors, wrote to the Hong Kong solicitors for Dawn Jade and Gao Fu and noted that the writ in the Hong Kong Proceedings had been sent to Mr Arasaratnam. They maintained that service was not effected in accordance with the Contracts. The letter concluded: "We ask that you bring this letter to the Court's attention in any ex parte application your clients may make." 14On 10 July 2012, the plaintiffs obtained default judgment (Default Judgment) against Mr Dua in the Hong Kong Proceedings for the amounts of the deposits paid to Dawn Jade and Gao Fu together with HK$10,000 in respect of costs. It is common ground that the letter from Baker & McKenzie dated 27 April 2012 was brought to the court's attention in accordance with their request as set out in the passage above. 15As referred to above, on 31 January 2013 the Default Judgment was registered in this Court under the Foreign Judgments Act 1991 (Cth) (the Act) and the NSW Judgment was entered accordingly. 16On 27 March 2013 Mr Dua filed an application to set aside the Default Judgment. Mr Dua deposed in his affidavit in support of his application that he only discovered that the Default Judgment had been entered against him on 8 January 2013. He also deposed that, as service was irregular, he was entitled to have it set aside and that he had a "meritorious defence with a real prospect of success to the claims made in the Statement of Claim". Mr Dua annexed Baker & McKenzie's letter of 27 April 2012 to his affidavit. He deposed: "Notwithstanding that, the Plaintiffs took steps on an ex parte basis to enter the Default Judgment against me. The Plaintiffs then made no attempt whatsoever to draw this to the attention of myself or Baker & McKenzie until mention was made in the affirmation of Edmund Kwan dated 8 January 2013 filed in HCA 484/2012 between related parties involving a wholly separate transaction." 17Further, in his affidavit in support, Mr Dua deposed to attending a meeting with the plaintiffs' representatives, Dr Chung Kin-Kwok, Chairman of the Maxdo Group and Mr Edmund Kwan on 20 October 2011. It appears to be common ground that the plaintiffs are members of the Maxdo group of companies. Mr Dua attached a copy of his contemporaneous notes of the meeting in which the following conversation occurred: "HD [Mr Dua]: Why should I accept this when I have a contract for $12m Andrew W [officer of the plaintiff]: There is no contract, it expired Anita [solicitor for the plaintiffs]: There is definitely a contract! HD [Mr Dua]: Is there or not, you sent me an extension but never signed it Anita: Yes there is a contract, you should read it carefully, it has no expiry" 18Mr Dua relied on this evidence as tending to establish that the plaintiffs' conduct after the Conditions Fulfilment Date was capable of amounting to an estoppel that would operate to prevent the plaintiffs from asserting that the Contracts came to an end on that day. He also relied on the absence of a request being made for the refund of the deposit at the meeting on 20 October 2011 as indicating that the parties were treating the Contracts as remaining on foot, notwithstanding that the Conditions Fulfilment Date had passed. 19Mr Dua also deposed, in the same affidavit, to becoming aware in December 2011 that the plaintiffs had, in May 2011, approached his Bolivian business partner with a view to encouraging him to work with the plaintiffs direct, rather than through Mr Dua. Mr Dua submitted that this amounted to an unconscientious departure from the representation (by representation or conduct) that the parties were treating the Contracts as still being on foot, from which the plaintiffs ought be estopped. 20By letter dated 7 May 2013 Baker & McKenzie sent Mr Dua's draft defence to the plaintiffs' Hong Kong solicitors. The draft defence alleges that the plaintiffs are estopped from denying that the date for completion of the Contracts was extended. The draft also alleges that although draft Supplemental Deeds, also referred to as Confirmation Deeds (which might, if executed, have had the effect of extending the Conditions Fulfilment Date) were the subject of negotiation which did not result in signed agreements, the plaintiffs continued to conduct themselves as if the Contracts were "still on foot and had not terminated". The particulars of conduct relied upon in the draft defence include the following: "Between 31 October 2011 and 2 November 2011, having been granted further access by the Defendant [Mr Dua], Mr Lam [representing the plaintiffs] accessed the Defendant's data room and made not less than 181 separate downloads of the Defendant's confidential data." 21Records documenting the downloaded data and the times and dates of the downloading are also annexed. 22At the hearing of his application to set aside Default Judgment, Mr Dua submitted that it was irregularly entered because the proceedings had not been properly served. Master de Souza of the High Court of the Hong Kong Special Administrative Region Court of First Instance rejected that argument and dismissed the application on 29 August 2013. The Master's reasons do not appear from the orders made. 23On his appeal to the High Court of the Hong Kong Special Administrative Region Court of First Instance, which was heard by Chung J, Mr Dua conceded that he had been validly served. He argued that the plaintiffs were estopped from denying that the Contracts did in fact continue to be binding until terminated by Mr Dua in January 2012 following the repudiation by the plaintiffs and that he was entitled to retain the deposits that the plaintiffs had paid to him on exchange. 24Justice Chung dismissed Mr Dua's appeal on 10 December 2013. Chung J found that Mr Dua's proposed defence had no reasonable prospects of success and noted that, but for the defences, Mr Dua was obliged to refund the deposit monies. In the course of addressing Mr Dua's argument that service of the writ was invalid (which had been maintained before Master de Souza, but abandoned before Chung J), Chung J said, at [31]: "What makes the matter worse for the defendant is that, about 2 weeks or so after such service, the defendant's solicitors informed the plaintiff's solicitors the writ had been brought to the defendant's attention." 25Mr Spencer submitted that it was a significant omission that Chung J did not refer to the fact that, although Mr Dua knew about the Hong Kong Proceedings, he did not know that an application for default judgment was being made, nor that Default Judgment had been entered. Justice Chung addressed the merits of the proposed defence the substance of which his Honour summarised as follows: "[11] In gist, the proposed defence is: . . . (b) despite the time set out in the Jan 2011 agreements for performing them (15 June 2011), the plaintiffs have by conduct after 15 June 2011 affirmed the Jan 2011 agreements. This constitutes an estoppel on the plaintiffs' part; alternatively, this constitutes a variation of the terms of the Jan 2011 agreements." 26His Honour said further: "I agree with the plaintiffs that neither of the matters set out in para 11(a) and (b) above can be a defence with reasonable prospect of success. . . . (4) insofar as estoppel is relied on: (a) there was no clear and unequivocal representation on which estoppel can rest; (b) in any event, there is no evidence that the defendant had been in a position to fulfil the conditions not earlier fulfilled; (c) it is not the defendant's case that the alleged estoppel amounted to the waiver of the unfulfilled conditions; it was at most an estoppel relating to the time extension to fulfil conditions." 27On 7 January 2014, Mr Dua filed a notice of appeal against the decision and orders of Chung J (being Civil Appeal No.4 of 2014 in the High Court of the Hong Kong Special Administrative Region Court of Appeal) (Hong Kong Appeal). The Hong Kong Appeal is listed for hearing on 12 December 2014. 28On 15 January 2014, the NSW Judgment was served on Mr Dua. 29On 20 January 2014, costs were assessed in respect of the appeal to Chung J in the sum of HK$302,000. On 29 April 2014, costs were assessed in respect of the application before Master de Souza in the sum of HK$218,298.33. There are two separate costs orders that have been made against Mr Dua in other proceedings which do not concern the plaintiffs. On 14 February 2014, costs were taxed and allowed in the amount of HK$188,330.01. On 15 May 2014 costs were taxed and allowed in the amount of HK$95,000. All costs orders remain unpaid. 30On 4 March 2014, Dawn Jade and Gao Fu caused to be issued bankruptcy notices to Mr Dua for the amounts comprising the Default Judgment. 31On 17 March 2014, Mr Dua filed the present notice of motion. 32At the hearing of the motion on 7 August 2014, Mr Spencer informed me that he was instructed on behalf of Mr Dua to undertake to the Court that he not dissipate any of his assets pending the determination of the Hong Kong Appeal. Mr Spencer did not make submissions against the imposition of a condition of any stay that Mr Dua file an affidavit as to his current assets and liabilities as ancillary to the enforcement of the proffered undertaking.

The parties' submissions 38Mr McNally SC, who appeared with Mr Ipp on behalf of the plaintiffs, submitted that the defence of estoppel was bound to fail and that Chung J was correct to reject it as unarguable. The plaintiffs submitted further that his Honour's alternative finding that there was no evidence that the defendant had been in a position to fulfil the conditions not earlier fulfilled was sufficient to deprive Mr Dua's defence of reasonable grounds. They contended that there was no error in Chung J's reasoning, which was a classic exercise of judicial discretion and which would, accordingly, require a demonstration of an error in the House v The King [1936] HCA 40; 55 CLR 499 sense before it could be set aside on appeal. They submitted that the conduct alleged against the plaintiffs after the Conditions Fulfilment Date was consistent with their continuing to negotiate but reserving their position, either to conclude a new agreement, or to rely on the fact that the Contracts had terminated and obtain a refund of the deposits. 39Mr Spencer submitted that Chung J had erred in determining the matter as if it were a final hearing, although the evidence was not complete and all Mr Dua had to do was, by affidavit, show the nature of the defence and not the whole of the evidence by which he hoped to establish the matter at any final hearing. He contended, accordingly, that this error in approach was the very kind of error that might cause an appeal court to consider that the discretion had miscarried. Further, I understood him to submit that it was erroneous that Chung J failed to take into account that, although Mr Dua was aware of the proceedings, the plaintiffs did not put him on notice of the application for default judgment, or that Default Judgment had been entered. 40The plaintiffs sought to make much of Mr Dua's delay and relied on the fact that he knew of the Hong Kong Proceedings at least by April 2012 and chose to do nothing but instruct Baker & McKenzie to write to the plaintiffs' Hong Kong solicitors to take an admittedly unmeritorious point about service. 41Mr Spencer submitted that it was possible that Master De Souza and Chung J took a dim view of Mr Dua's taking a technical (but admittedly incorrect) point about service before the Master and that this jeopardised his chances of having the Default Judgment set aside. I do not consider that it would be appropriate for me to speculate about what influenced the Master (in circumstances where no reasons for the Master's decision appear from the evidence). Chung J, as the passage set out above shows, was not favourably impressed by the 7 April 2012 letter but decided the appeal on other grounds. 42The plaintiffs contended that the monies that comprise the Default Judgment were monies paid by them to Mr Dua by way of deposit. They submitted that, in the absence of evidence from Mr Dua that he no longer has the monies, that I ought infer that he is probably able (although obviously unwilling) to pay the money into Court. It was submitted by Mr Spencer, on behalf of Mr Dua, that there was no evidence as to hardship and that, in those circumstances, I ought infer neither hardship, nor the lack thereof. 43The plaintiffs further submitted that the undertaking offered by Mr Dua not to dissipate his assets was insufficient to protect their legitimate interests. Mr McNally noted that such an undertaking is generally enforced by contempt proceedings and that this would be difficult given that Mr Dua's assets are not known to the plaintiffs. They submitted that payment into court was what was required to preserve the judgment monies pending the outcome of the appeal. They relied on the uncontroverted evidence that Mr Dua is not the registered proprietor of any real property in his name in New South Wales and that the only assets of Mr Dua in the jurisdiction of which they are aware are shareholdings in three companies of unknown value. 44The parties also raised the fact that an order for security for costs was made in respect of the Hong Kong Appeal. Mr Dua contended that the plaintiffs, having required him to spend further money on the appeal (by requiring security of HK$290,000), should not be permitted to threaten that possibility "by a collateral attack". The plaintiffs answered the submission by contending that they behaved appropriately in obtaining security for costs, which was, in any event, substantially less than the judgment sums.

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