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[2022] VSC 92
General information, not legal advice.
Supreme Court of Victoria
2021-12-22
ATTIWILL J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Application for preservation of property - Bitcoin - Cryptocurrency - Password for multi-signature security wallet - Record of password on single piece of paper - Whether an order preserving the Bitcoin is relevant to the cause of action - Whether destruction of the Bitcoin will vitiate the ultimate determination of the proceeding - Whether an order preserving the Bitcoin will cause prejudice to the parties - Supreme Court (General Civil Procedure) Rules 2015 (Vic) s 37.01(1) - Application allowed in part.
1 The issue before the Court is whether it should make an order under r 37.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') by making orders concerning the seed phrases (or passwords) for the security wallet bearing the address 3JcX4jengY4Gw8EfsZtKY5CXc6Nb9j9Z3x ('the Security Wallet') that presently contains 117.33 Bitcoins ('the Bitcoins').
2 Mr Chen seeks relief under r 37.01(1) of the Rules. He is the fifth defendant in proceeding no S ECI 2021 03329 ('the Abel proceeding') and the plaintiff in proceeding no S ECI 2020 03554 ('the Chen proceeding').
3 By a summons filed 15 November 2021 in the Chen proceeding, Mr Chen sought, inter alia, the following orders:
(a) Forthwith each place their seed phrase in respect of the Security Wallet (as defined in the Plaintiff's Amended Statement of Claim of 23 March 2021) into separate sealed envelopes ("Envelopes") (the seed phrase will be verified by a member of the Court); and
(b) the Envelopes will be held in the custody of the Court pending the hearing and determination of this dispute or further order.
(a) convert the Bitcoin held in the Security Wallet to Australian Dollars; and
(b) transfer the proceeds (minus reasonable transaction fees) into Court pending the hearing and resolution of this dispute or further order.
4 Mr Chen also filed a summons on 15 November 2021 in the Abel proceeding in substantially the same terms. Mr Chen does not, at this stage, seek relief in the Abel proceeding and seeks that the summons in the Abel proceeding be adjourned. Mr Chen provided a proposed form of order in the Chen proceeding in which he sought, inter alia, the following relief:
(a) Must as soon as practicable and in any event, by no later than 15 January 2022, each place (and do all things necessary to place) their seed phrase in respect of the Security Wallet (as defined in the Plaintiff's Amended Statement of Claim of 23 March 2021) into separate sealed envelopes ("Envelopes") (each seed phrase will be verified by a member of the Court or by an affidavit from the that party's solicitor confirming the veracity of the seed phrase); and
(b) the Envelopes will be held in the custody of the Court pending the hearing and determination of this dispute or until further order.
5 Mr Chen relied upon submissions filed 16 December and 20 December 2021. Mr Guo relied upon a submission filed 17 December 2021. The plaintiffs in the Abel proceeding relied upon a submission filed 17 December 2021. Mr Chen, Mr Guo and the plaintiffs in the Abel proceeding made submissions at the hearing. The parties' submissions made reference to a number of affidavits, including affidavits that had been relied upon in relation to earlier applications. At the hearing, the parties confirmed that the relevant affidavits are the following:
(a) Robert Felix Preac sworn 20 October 2020;
(b) David Weinberger sworn 2 November 2020 (two affidavits);
(c) Aanandan Chithan Vijayakumar affirmed 15 November and 15 and 22 December 2021;[1]
(d) Liang Guo affirmed 18 November 2021;
(e) Stuart Hogg affirmed 17 November 2021;
(f) Lance Abel affirmed 10 September 2021 and 18 November 2021; and
(g) Christos Stathopoulos sworn 13 September 2021 and 18 November 2021.
6 I have read the affidavits and the exhibits. I do not intend to set out all of the background in those affidavits in this ruling.
8 On 13 September 2021, the Court made a freezing order, upon the application by the plaintiffs in the Abel proceeding, in respect of the Bitcoins. On 16 September 2021, the Court extended the freezing order until trial or further order. The plaintiffs in the Abel proceeding relied upon, inter alia, the following evidence of Mr Stathopoulos in applying for the freezing order:[5]
Now produced and shown to me marked "CS-7" is a copy of the Article published in the Australian Financial Review on 6 September 2021.
- A relevant risk now exists that Mr Chen and Mr Guo will settle their ongoing litigation and transact with the 117.33 Bitcoins. Mr Chen and Mr Guo may have become aware of the representation engaged by the investors of ACX and may be aware that the 117.33 Bitcoins could be sought by the investors to recover the debts they are owed. All the Defendants claim ownership of the 117.33 Bitcoins, and therefore there is a possibility of either removing, disposing or dealing with the 117.33 Bitcoins to avoid any payment to the Plaintiffs. As I am unaware of any other assets held by BGL, the disposal of the 117.33 Bitcoins may result in a judgement which cannot be satisfied.
9 There is no central authority for Bitcoin. The Security Wallet is a '2 of 2' wallet which means that 2 out of 2 signatories need to authorise a transaction to make a transfer out of it. As a result, the Bitcoins are accessible only by Mr Chen and Mr Guo entering their respective seed phrases into certain software. A seed phrase is a unique twelve-worded password. In the event that the seed phrase of Mr Chen or Mr Guo is lost, forgotten or corrupted, the Bitcoins will become inaccessible.[6] That would be tantamount to the Bitcoins, in effect, being destroyed as they would have no value. Mr Wodak, counsel for Mr Guo, further submitted, correctly, that 'the very essence of this asset [the Bitcoins] and its security is the confidentiality of the two seed phrases'.[7]
10 Mr Vijayakumar gave evidence that he has been informed by Mr Chen and believes the following matters about the Security Wallet:[8]
(a) He [Mr Chen] has a degree in Bachelor of Information Engineering and a post graduate degree in Information Security. He has been working as a programmer since 2000, he has been developing cryptocurrency software since 2014 and hardware since 2018.
(b) In order to execute a transaction from a cryptocurrency address, commonly known as a 'public key', the transaction needs to be authorised using a 'private key' which corresponds to that address. A private key is not required to enquire how much cryptocurrency is held in a particular address.
(c) In order to execute a transaction out of a multi-signature wallet (as opposed to depositing into) like the Security Wallet, each signatory to that wallet will need to "sign" that transaction using their private key (or keys) and then that signed transaction will need to be broadcast to the network for approval.
(d) If the private keys required to execute transaction from a multi-signature wallet are lost, corrupted, forgotten or otherwise unusable, then the bitcoin in that wallet will be stuck in that wallet forever.
(e) Bitcoin 'wallets' can contain multiple addresses. When creating a wallet, a user will receive a 'seed phrase', which is a recovery phrase (being 12 or 24 specific words) which enables a user to us all private keys within a wallet. By way of example the Security Wallet has more than one address within it because the was a transaction out of it on the morning of 23 June 2018.
(f) Each signatory to a multi-signature wallet will have received a 'seed phrase' in respect of their authority to use the wallet. That that seed phrase is entered into a bitcoin transaction program (such as electrum) along with the other co-signor's master public key, the user will be able to derive all public and private keys in respect of that wallet.
(g) The Security Wallet is a '2 of 2' wallet, which means 2 out of 2 signatories need to authorise a transaction to make a transfer out of it. Each of the Plaintiff and the Second Defendant have a 'master public key'.
(h) A step by step guide created by the Plaintiff describing how to test each of the Plaintiff and the Second Defendant's seed phrases in respect of the Security Wallet is at pages 1-6 of ACV-1.
(i) As an additional security measure, it is preferable that the verification of each of the respective seed phrases is are done on separate computers (i.e. one computer for the Plaintiff's and another for the Second Defendant's seed phrase).
11 Mr Vijayakumar gave further evidence about these matters as follows:[9]
11. I am informed by the Plaintiff [Mr Chen] and verily believe:
(a) There is no central authority or governing body in respect of Bitcoin. Therefore, there is no organisation or body that can be compelled to release the bitcoin in the Security Wallet should the either Mr Chen or Mr Guo be unable to authorise the transaction in accordance with the Court's wishes.
(b) The safe storage of each of Mr Chen's and Mr Guo's seed phrases for the Security Wallet will ensure that in the event either of them are unable to authorise a transaction in accordance with the wishes of the Court, the seed phrases can be accessed; used to restore the signatory wallets in respect of the Security Wallet; and then the required transaction can be executed.
12 Mr Guo gave evidence about his seed phrase as follows:[10]
13 Mr Guo gave evidence about Mr Chen's proposed verification process:[11]
14 Mr Guo also gave evidence about his residence as follows:[12]
27. My son is aged 5 years old, and he attends school in Victoria.
- I reside in Melbourne, Victoria and am a permanent resident of Australia. My child is here. I have no intention of moving my residence to any other place.
(a) it is uncontroversial that the Bitcoins in the Security Wallet are accessible only by Mr Chen and Mr Guo entering their respective seed phrases into certain software. If either seed phrase is lost, forgotten or becomes corrupted, the Bitcoins will be inaccessible by any person forever. That would be tantamount to the destruction of the Bitcoins. Therefore, protection of the seed phrases is of the utmost importance to avoid the Court's jurisdiction being vitiated;[13]
(b) the Bitcoins comprise the subject of the Chen proceeding and at trial, the Court will need to determine to whom they should be released;[14]
(c) the Bitcoins are the subject of a freezing order made in the Abel proceeding;[15]
(d) Mr Chen is not required for the purposes of his application under r 37.01(1) to address the merits of his case at all;
(e) the preservation of the Bitcoins is essential to avoid the reasonable possibility that judgment in the Chen proceeding for either remaining party will be frustrated and it is also necessary to maintain the effectiveness of the freezing order in the Abel proceeding;[16]
(f) unless the seed phrases are delivered into the Court's custody and verified, there is a substantial risk to the Bitcoins. Accordingly, there is a significant prospect that the prospective judgment of the Court will be wholly or partly unsatisfied. Indeed, if the Bitcoins become inaccessible before trial, the availability of the primary relief sought by at least Mr Chen and Mr Guo will be excluded from the Court's consideration altogether;[17]
(g) Mr Chen no longer seeks to liquidate the Bitcoins;[18] and
(h) a process of verification of the seed phrases is required and there are a number of alternatives. These are detailed in Mr Chen's submissions filed 20 December 2021.
16 I also note that the plaintiffs in the Abel proceeding (as potential interested parties in the relief sought by the summons in the Chen proceeding) do not oppose relief being granted under r 37.01(1). Mr Stathopoulos, solicitor for the plaintiffs in the Abel proceeding, submitted:[19]
I just want to make sure that it's appropriate for me to make submissions on this case considering that there are no orders sought in the Abel proceeding, no proposals were provided. However, our client's position is that they are satisfied with the proposal of the password being provided to either the solicitors or to the court but it - adds another level of security. And as Your Honour has indicated, should a determination of either the Abel proceeding or the Chen proceeding come about and the coins need to be released to a party that is successful, that the availability of those seed phrases to instantly access those coins rather than having to wait for example for Mr Guo to have to travel to China. And once he has left the jurisdiction, is there any certainty as to whether he is to return and provide that seed phrase. I believe that the proposal that's put forward by this court would add an extra level of security and it is one that the plaintiffs are satisfied with.
18 The administrators of the first defendant in the Abel proceeding and in the Chen proceeding do not consent or oppose Mr Chen's application for relief under r 37.01(1).[22]
19 In brief, Mr Guo opposes Mr Chen's application and submitted as follows:[23]
(a) Mr Guo is presently unable to comply with an order for the delivery of his seed phrase 'forthwith' as the seed phrase is in a confidential location in China and not currently in his possession;
(b) the order sought that a 'member of the Court' verify the seed phrase is vague, in that it lacks details; ambiguous, in that it has multiple possible meanings; fraught with risk; and seeks that the Court undertake a function that is not a judicial function;
(c) the proposal that Mr Chen's seed phrase and Mr Guo's seed phrase be stored in the same location (at the Court) is counterintuitive, as it undermines the security function of requiring two separate seed phrases (or passwords) to access the Bitcoins and is fraught with risk. Should a person obtain unauthorised access to the location of the seed phrases, they will be able to unilaterally access and deal with the Bitcoins;
(d) the practical effect of the orders exposes the seed phrases and the Bitcoins to the risk of loss;
(e) Mr Chen has not offered to provide the usual undertaking as to damages, and should proffer that undertaking as a condition of obtaining the relief sought in his summons;
(f) even in the event that Mr Chen does provide the usual undertaking as to damages, the Court does not know the asset position of Mr Chen and therefore cannot have any confidence in Mr Chen's ability to meet an award of damages on the undertaking, should he be called upon to do so;
(g) Mr Guo is concerned that if the Bitcoins are lost in the process of verification or as a consequence of the making of the orders sought that Mr Chen will be unable to satisfy any order as to damages;
(h) the Court's final determination in the proceeding would not be ineffective if the orders are not granted;
(i) the orders are unnecessary to preserve the status quo; and
(j) the Bitcoins are presently secure.
20 Mr Wodak, counsel for Mr Guo, submitted, inter alia, as follows with respect to the Court's proposed orders:[24]
... if Your Honour was minded to make orders at all, that is a sensible proposal and I do not take issue with it. But I do not hold instructions at this time to consent to it. My instructions are to identify why orders are unnecessary, and I'll seek to do that. But I cannot and do not seek to dissuade Your Honour from making orders of the kind Your Honour has proposed you might make, if Your Honour is minded to make orders at all.
... the settlement deed expressly provided for Mr Chen and Mr Guo to each hold a phrase.
So the arrangement that's now sought to be disrupted by Mr Chen is the precise arrangement the parties agreed on. Not the precise location or number of copies, but the fact that Mr Chen would have a copy and Mr Guo would have a copy, that's the agreement and the plaintiff seeks to disrupt that status quo.
... the very essence of this asset and its security is the confidentiality of the two seed phrases being maintained and kept separate from each other until it is time to transact them, and by storing them in China - sorry it in China in one location he has minimised the prospect that it will be obtained because it will be necessary to obtain it from that one location. So while it would be convenient to store it on your phone - on a photo on your phone, it would be convenient to put a copy on your fridge, the more readily available you make the seed phrase, the more risk there is that someone will discover it. Now there must be a balance between security and recoverability and my client has identified and pursued one of those possibilities.
23 Mr Wodak submitted that 'the court can't, on the evidence evaluate the extent of that risk. That is a risk that cannot be eliminated at the moment'.[29]
24 Mr Wodak submitted that 'a person in possession of Mr Chen's seed phrase would only need Mr Guo's seed phrase and they would be able to transact without limitation.'[30]
... most of what I want to say about the importance of an undertaking as to damages can be deferred because, if the court makes orders at all, I would certainly be seeking an undertaking, a secured undertaking, if any verification is required, because that changes the risk of the asset.
... the proposal Your Honour makes does not, as I apprehend it, lead to significant risk, and therefore the necessity of a secured undertaking as to damages, is relatively low.
27 Rule 37.01 of the Rules provides:
(1) In any proceeding the Court may make an order for the inspection, detention, custody or preservation of any property, whether or not in the possession, custody or power of a party.
(2) An order under paragraph (1) may authorise any person to -
(a) enter any land or do any other thing for the purpose of obtaining access to the property;
(b) take samples of the property;
(c) make observations (including the photographing) of the property;
(d) conduct any experiment on or with the property;
(e) observe any process.
(3) On an application under paragraph (1), the Court may make an order for the costs and expenses of any person not being a party where -
(a) that person attends on the hearing of the application pursuant to a summons served under Rule 37.03(1); or
(b) the Court makes an order under paragraph (1) which will affect that person.
(4) The Court may make an order under this Rule on condition that the party applying for the order give security for the costs and expenses of any person, whether or not a party, who will be affected by the order.
28 There was no dispute as to the applicable principles to be applied with respect to an application for relief under r 37.01(1). They are set out in Mr Chen's submissions:[33]
(a) Does the property for which preservation is sought in some way relate to a question in the proceeding - either as the subject of the cause or matter between the parties, or of a relevant question between them?
(b) If the party seeking the order were ultimately successful at trial, would or may that determination be rendered ineffective unless the order preserving the property were made? Put another way, is there a 'real risk' to the relevant property?
(c) In the form sought, what is the practical effect of the order? In particular, would the order cause any party or other interested person to suffer any prejudice (for example, by imposing consequences which could not be reversed)?
29 In Greenberger v State of Victoria,[34] Forrest J said:
Rule 37.01 or its various predecessors has been considered on several occasions by judges of this court. Each of those cases demonstrate that on such an application a court would not investigate the merits of a particular claim.
30 A plaintiff must establish that an order preserving the particular property is relevant to any arguable right or cause of action that he or she may possess.[35] A plaintiff must also establish in the context of the case that there is a real risk that the property sought may be either destroyed or removed from the jurisdiction.[36]
The rule is designed to preserve property. I emphasize both those words, which to my mind make clear that what is effected by an order under this rule is the keeping intact of specific property which, if it were destroyed, would vitiate a judgment of the court in respect of the disposition of such specific property. Such an order ought to be made only for the purpose of preserving the property until the issues involved in the cause in relation to that property can be determined ... It should not be made for the purpose of giving security for the satisfaction of a money judgment or in lieu of other orders restraining a party from behaving in a particular way which may be available in other circumstances under the rules.
32 In Johnson v Tobacco Leaf Marketing Board,[39] Gowans J stated:
When an application is based upon the provisions of that rule, an inquiry into the merits is not required.
...
What is involved is an exercise in salvage, pending, and for the purpose of, the ultimate determination. It is, therefore, relevant to consider what will be involved in that determination, and how it relates to the property sought to be preserved, and what justice demands in the way of making an order for the preservation of the property so as to prevent a determination one way or the other proving abortive.
It has been submitted that it is for the defendants to establish that prejudice will follow. But I think it is for the plaintiffs, who seek the particular order, to show that it is no more than is necessary to effectuate the purpose for which the power is conferred.
34 At the hearing of the application, the Court outlined to the parties that, if it decided to grant relief pursuant to r 37.01(1), then orders substantially in the following terms may be appropriate ('Court's proposed orders'):
(a) Mr Chen and Mr Guo each copy their seed phrase into a document by late January 2022;
(b) Mr Chen and Mr Guo each provide their document to their solicitors in the Chen proceeding and for their document to be then placed in an envelope to be stored in a safe place by their solicitors;
(c) an order giving Mr Chen or Mr Guo the opportunity to explain any non-compliance with the orders;
(d) Mr Chen's summons to be otherwise adjourned; and
(e) matters concerning verification and who ultimately has control of the documents recording the seed phrases may be addressed at the adjourned hearing.
35 For reasons I will now give, I am satisfied that orders should be made pursuant to r 37.01(1) of the Rules that substantially accord with the Court's proposed orders. This will preserve the Bitcoins until the issues in dispute between the parties in these proceedings are determined. Justice demands that such orders are made.
36 I am satisfied that orders that substantially accord with the Court's proposed orders are relevant to Mr Chen's cause of action in the Chen proceeding. I accept Mr Chen's submissions that the Bitcoins comprise the subject matter of the Chen proceeding.[41] Mr Guo did not dispute this. In the event that the Bitcoins are destroyed, a judgment of the Court in respect of the Bitcoins would be vitiated.
37 I am satisfied that justice demands that relief be granted under r 37.01(1) to preserve the Bitcoins so as to prevent the Court's ultimate determination proving abortive.
38 First, I am of the view that there is a real risk that the Bitcoins may be, in effect, destroyed given the following matters:
(a) Mr Guo cannot recall the seed phrase;
(b) Mr Guo only has one record of the seed phrase, constituted by a single piece of paper;
(c) Mr Guo considers there is a risk that someone may seek to obtain it by force, including by a person demanding that he provide it to them;
(d) Mr Guo has not given evidence concerning the location of the piece of paper (except that it is somewhere in China);
(e) Mr Guo has not given evidence why he considers that the location is 'safe';
(f) Mr Guo gave evidence that: 'I cannot be certain that the Seed Phrase remains where I left it, and remains recoverable.'[42] This contradicts, in part, his evidence that it is stored 'safely';[43]
(g) Mr Wodak correctly submitted: 'I cannot submit to the court that there is no risk, where the seed phrase is stored now, of course there is some risk';[44] and
(h) in the event that the piece of paper that records Mr Guo's seed phrase is lost, the Bitcoins will, in effect, be destroyed. They will not be able to be accessed. They would have no value.
39 I am also satisfied that orders that substantially accord with the Court's proposed orders are no more than is necessary to preserve the Bitcoins and that such orders will not cause prejudice to Mr Chen or Mr Guo.
40 First, the Court's proposed orders do not involve Mr Guo disturbing the safe storage of the single piece of paper that presently records his seed phrase. That seed phrase may be readily copied in situ by photographing it or recording the seed phrase. Mr Guo's present single piece of paper concerning his seed phrase may remain where it is presently stored.
41 Secondly, the Court's proposed orders do not require Mr Guo to provide a record of the seed phrase 'forthwith' but gives him a reasonable time to arrange this. Mr Chen sought this as part of his application.
42 Thirdly, in the event that Mr Guo cannot comply with the orders of the Court, he will have the opportunity to provide that explanation to the Court. For example, if he cannot attend to it and he does not have someone that he trusts to assist in the process. Mr Chen sought this as part of his application.
43 Fourthly, the Court's proposed orders allow the issue of verification to be properly addressed by the parties and considered by the Court. Mr Chen's proposed course of verification is, at present, based upon a step-by-step guide created by Mr Chen. The Court is not in a position, upon the present material, to evaluate that process. Further, there is no prejudice in the issue of verification being considered once the seed phrases are obtained.
44 Fifthly, the Court's proposed orders do not involve any 'Bitcoin transaction'.
45 Sixthly, the Court's proposed orders will result in copies of the seed phrases being stored in safe places. In the event that the parties are unable to agree on a form of undertaking by their solicitors, or appropriate orders, then the Court will hear the parties further, including on places of safe storage.
46 Seventhly, I do not accept that relief under r 37.01(1) will result in the arrangement between Mr Chen and Mr Guo being 'disrupted'.[45] Both are able, at any time, to make copies of their respective seed phrases and store them. This is what Mr Guo has already done. An order compelling Mr Chen and Mr Guo to make a further record does not change the arrangements between them.
47 I am also satisfied that the Court's proposed orders will not cause prejudice to the plaintiffs in the Abel proceeding, to the extent that they ultimately seek to make claims in relation to the Bitcoins. Further, Mr Stathopoulos described the Court's proposed orders as a 'favourable approach'.[46]
48 I will not require Mr Chen to provide an undertaking as to damages as I do not consider it necessary or appropriate as the orders will only require, in effect, that Mr Guo make a copy of his seed phrase and provide it to his solicitors for safe keeping. I also refer to the submissions of Mr Wodak that: '... the proposal Your Honour makes does not, as I apprehend it, lead to significant risk, and therefore the necessity of a secured undertaking as to damages, is relatively low.'[47]
(a) adjourn Mr Chen's summons in the Abel proceeding and reserve the costs; and
(b) grant relief in the Chen proceeding substantially in the form of the Court's proposed orders. It is my preliminary view that the issue of costs should be adjourned together with the further hearing of Mr Chen's summons. The parties are directed to confer and provide a form of orders to the Court by no later than 10:00am tomorrow or provide their form of order to the Court by that time and the matter will then be listed tomorrow. The Court will shortly circulate a draft form of order to facilitate that conferral.
[1] Mr Vijayakumar's affidavit affirmed 22 December 2021 was provided upon request of the Court in an email dated 21 December 2021. See also Transcript of Proceedings, Chen v Blockchain Global Limited & Abel v Blockchain Global Limited (Supreme Court of Victoria, S ECI 2020 03554 & S ECI 2021 03329, Attiwill J, 21 December 2021) 63.14-26 ('Transcript of Proceedings').
[2] Mr Abel's affidavit affirmed 10 September 2021, [27].
[3] Mr Vijayakumar's affidavit affirmed 15 December 2021, [10]; Mr Guo's affidavit affirmed 18 November 2021, [19]-[20].
[4] Mr Vijayakumar's affidavit affirmed 15 December 2021, [10].
[5] Mr Stathopoulos' affidavit sworn 13 September 2021, [14]-[15].
[6] See Transcript of Proceedings, 6.27-10.14.
[8] Mr Vijayakumar's affidavit affirmed 15 November 2021, [7].
[9] Mr Vijayakumar's affidavit affirmed 15 December 2021, [11].
[10] Mr Guo's affidavit affirmed 18 November 2021, [11]-[18] (emphasis added).
[13] Mr Chen's submissions filed 16 December 2021, [2].
[19] Transcript of Proceedings, 60.26-61.13 (Mr Stathopoulos).
[21] Transcript of Proceedings, 62.1-2 (Mr Stathopoulos).
[22] Exhibit 'ACV-1' to the affidavit of Mr Vijayakumar affirmed 22 December 2021, pg 26.
[23] Mr Guo's submissions filed 17 December 2021, [1(a)]-[1(j)].
[24] Transcript of Proceedings, 50.10-18 (Mr Wodak).
[33] Mr Chen's submissions filed 16 December 2021, [5] (citations omitted). Mr Wodak, counsel for Mr Guo, accepted the correctness of Mr Chen's submissions as to the applicable principles: Transcript of Proceedings, 22.24-26, 54.23-26 (Mr Wodak).
[34] [2008] VSC 357, [13] (citations omitted).
[37] Pizzey Properties Pty Ltd v Edelstein [1977] VicRp 19; [1977] VR 161, 162 (Anderson J), regarding a predecessor to r 37.
[39] [1967] VicRp 45; [1967] VR 427, 430, regarding a predecessor to r 37.
[41] Mr Chen's submissions filed 16 December 2021, [10].
[42] Mr Guo's affidavit affirmed 18 November 2021, [16].
[44] Transcript of Proceedings, 52.13-15 (Mr Wodak).