First Property Holdings Pte Ltd v Nyunt [2025] NSWSC 1096 | Case summary | Zoe

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First Property Holdings Pte Ltd v Nyunt [2025] NSWSC 1096 | Case summary | Zoe

On 14 January and 7 November 2016, the High Court of Singapore ordered Mr Michael Nyunt (“the defendant”), to pay in excess of USD$68 million to First Property Holdings Pte Ltd (“the plaintiff”).
On 2 March 2017, this Court made orders recognising the foreign judgment as a judgment of the Court in accordance with s6(3) of the Foreign Judgments Act 1991 (Cth). Immediately following the registration of the foreign judgment, the Court made freezing orders preventing the defendant and Mrs Ann Nan Htwe Kham Nyunt from removing from Australia, or in any other way disposing of, dealing with or diminishing the value of their assets in Australia.
The freezing orders expressly identified three properties in Sydney over which Daw Nang Saw (the mother of the Mrs Nyunt and the mother-in-law of the defendant) now claims proprietary interests (“the Properties”). The freezing orders also include an ancillary order for disclosure of assets by affidavit.
On 10 March 2017, Mrs Nyunt swore and filed her affidavit (“the Mrs Nyunt affidavit”). A copy of the affidavit was duly served on the plaintiff.
On 20 March 2017, the Court amended the freezing orders to apply to the defendant only on the basis that Mrs Nyunt provided an undertaking to the Court that she would not deal with her interest in the Properties without giving one calendar months’ notice to the plaintiff's solicitor.
On 23 March 2017, the defendant, swore, filed and served his affidavit (“the Mr Nyunt affidavit”). A copy of the affidavit was duly served on the plaintiff.
On 23 October 2017, Daw Nang Saw registered the caveats over the Properties. She claimed proprietary interests in the properties arising from cash loans and cash payments allegedly made by her to Mr and Mrs Nyunt in 2008, 2009 and 2015, in Myanmar, totalling $7.26 million.
On 1 November 2023, this Court issued a writ for the levy of property against the defendant in respect of the Properties.
On 17 November 2023, the plaintiff served lapsing notices Daw Nang Saw in respect of the caveats. On 20 December 2023, Daw Nang Saw commenced caveat proceedings, seeking the extension of the caveats and, and as to final relief, a declaration as to her proprietary interests in the Properties (“the caveat proceedings”).
Mr Nyunt and Mrs Nyunt were joined as defendants in 2024. In his defence Mr Nyunt admitted Daw Nang Saw's claims in their entirety. In her defence, Mrs Nyunt largely admitted Daw Nang Saw's claims and, in the alternative, alleged interest in the properties over and above the proprietary interests.
In the caveat proceedings Daw Nang Saw relied on four primary documents, being two memoranda of charge and two declarations of trust (these shall be collectively referred to as “the charge documents”).
The plaintiff disputed the existence of the claimed proprietary interests, the alleged cash payments on which they relied and the authenticity and provenance the charge documents. While the caveats remain on title, the plaintiff cannot proceed with execution under the writ.
By a Notice of Motion filed 14 August 2025 (“the Motion”), the plaintiff sought to be released from the implied undertaking with respect to the use of the Mr Nyunt affidavit and the Mrs Nyunt affidavit.
The purpose for which the plaintiff sought to be released from the implied undertaking was to allow it to use the affidavits in the caveat proceedings. The existence of the caveats is preventing the plaintiff from executing a writ in respect of those properties as part of its enforcement of the registered foreign debt.
Mrs Nyunt consented to the relief sought by the plaintiff, albeit in terms of the consent given in slightly qualified terms. The defendant does not oppose the relief sought.
In her written submissions to the Court in support of the Motion, Ms E L Beechey described the legal principles applicable to the determination of that application. I agree with those submissions.
Parties to legal proceedings to obtain disclosure documents, under compulsion, are subject to a substantive legal obligation not to use the documents for any purpose other than that for which they are given without leave of the Court, unless the document has been received into evidence.
Whether a party should be released from the implied undertake is within the court's discretion. The Court ought not release, or modify, the implied undertaking unless there are special circumstances and where the release or modification of the application will not occasion injustice to the person who gave discovery of the documents in issue.
However, the notion of special circumstances does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient that, in all the circumstances, good reason is shown why, contrary to the usual position, documents produced, or information obtained, in one piece of litigation should be used for the advantage of a party in another piece of litigation. The assessment of the existence of special circumstances must be undertaken in relation to documents in respect of which the release is sought. In this case, attention is directed to the affidavits of Mr and Mrs Nyunt, to which I have referred.
In Springfield Nominees Pty Ltd v the Bridgelands Securities (1992) 100 ALR 685*;* (1992) 38 FCR 217 at [31]-[32], Wilcox J, as he then was, listed certain factors as relevant in considering whether special circumstances are made out:

If special circumstances exist, then the Court has a broad discretion as to whether or not to grant leave.
Having regard to the submissions of Ms Beechey in this matter, I am of the view that special circumstances have been demonstrated, and the relief sought by the plaintiff on the Motion should be granted. I note that the Short Minutes of Order filed in Court differ in some respects from the form of the Orders proposed in the Motion.
My reasons for that decision are as follows:
First, the affidavits of Mr Nyunt and Mrs Nyunt are likely to contribute to achieving justice in the caveat proceedings as they go to the existence, or non-existence, of proprietary interests asserted by Daw Nang Saw in those proceedings.
Secondly, the affidavits are relevant and significant to the plaintiff's challenge to the claimed proprietary interest and the authenticity and provenance of the charge documents in the caveat proceedings.
Thirdly, there are no inherent characteristics or features of the affidavits which would warrant a conclusion that they are ought not be used by the plaintiff in the caveat proceedings. The affidavits do not contain confidential or sensitive information, although I observe, as Ms Beechey did, that Mrs Nyunt's affidavit contains biographical information.
Neither Mr Nyunt nor Mrs Nyunt have asserted that they will sustain any prejudice if the implied undertaking is released. Nor is any such prejudice evident on the materials presently before the Court.
Fourthly, Mr Nyunt and Mrs Nyunt have either wholly or substantially given their consent to the Orders proposed in the Motion. I do not consider that the proposed variation of those Orders in the Short Minutes of Order now placed before the Court, in substance, alter that position.
In my view, the plaintiff should be released from the implied undertakings to permit the plaintiff to use the Mr Nyunt affidavit and Mrs Nyunt affidavit in the caveat proceedings. There are special circumstances justifying the release.
In all the circumstances, I make the Short Minutes of Order filed in Court, which will be marked as Exhibit 3 in the proceedings.