Plaintiff v Defendant

AUTHORITY - Ratification - Acts of single director in 2016 purportedly on behalf of defendant - Plaintiff relied on signed 2020/2021 agreement - Single director existing guarantor under comprehensive 2013 loan agreement signed 2020/2021 agreements - Director cannot make a representation as to his authority so as to make it a representation of the defendant - No ratification - Lederberger and Scheiner v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509; [2012] VSCA 262, applied.

ESTOPPEL - Estoppel alleged as alternative to 2013 agreement - No reliance - Crabtree‑Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72; [1975] HCA 49, Kramer v Stone (2024) 99 ALJR 126; [2024] HCA 48, applied.

EVIDENCE - Application of Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 - Whether inference is open depends on pleadings and evidence adduced at trial - Does not supply a gap in the evidence.

1 The plaintiff, the Export‑Import Bank of China ('EXIM') is incorporated in the People's Republic of China. It is a Chinese‑government‑owned bank whose primary business involves providing loans to assist in areas of China's foreign trade, overseas investments and other related fields.

2 The defendant, CSTT Co Holdings Pte Ltd ('CSTT') is a private company incorporated in Singapore on 4 October 2012. 100% of the shares in CSTT are owned by Shandong Ruyi Scientific and Technology Group Co‑Ltd ('Ruyi'), a private company incorporated in the People's Republic of China whose business includes textiles and clothing manufacturing. In 2012 Ruyi was ranked in the top 5 of the top 100 in China's textile and garment industry.

3 The directors of CSTT upon its incorporation were Mr Yafu Qiu and Mr Choon Seng Lim. Mr Qiu was at all relevant times, and remained, a director of Ruyi.

4 On 4 July 2012 Ruyi and an Australian company unrelated to Ruyi, Lempriere Pty Ltd ('Lempriere'), executed a non‑binding term sheet for the proposed purchase by them of farm land and cotton industry assets known as the 'Cubbie Station' in Queensland. The purchase was to occur by the incorporation of an Australian special purpose company ('SPV') which was to be owned as to 80% by Ruyi and as to 20% by Lempriere.

5 The term sheet, which was signed by Mr Qiu as 'authorised signatory' for Ruyi and by Mr William Lempriere ('Mr Lempriere') as 'director' for Lempriere, included a key term that 30% of the purchase price would be funded by equity provided from the existing cash reserves of Ruyi and Lempriere, with the remaining 70% funded from debt to be provided by EXIM or such other bank nominated by the parties. The term sheet recorded a key term that the execution of definitive transaction documents was conditional on Ruyi or the SPV receiving Foreign Investment Review Board ('FIRB') approval. The stated intention of the parties was that financial close would happen by no later than 1 September 2012.

6 The SPV called C S Agriculture Pty Ltd ('CSA') was incorporated in Australia on 5 October 2012. On incorporation 80% of the shares in CSA were owned by CSTT and the remaining 20% of the shares were owned by Lempriere.

7 On 11 October 2012 CSA as purchaser entered into a land and business sale agreement for the purchase of land and business assets including water licences, known as Cubbie Station for a purchase price of AUD $230,000,000 ('sale agreement'). The obligations of CSA, as purchaser, under the sale agreement were guaranteed by Ruyi.

8 Debt funding to enable completion of the sale agreement was provided by EXIM, but not funds which EXIM lent directly to CSA.

9 In anticipation of completion of the sale agreement, on 21 January 2013 EXIM as Lender and Ruyi as Borrower entered into a loan facility agreement ('loan facility agreement') for the stated purpose of acquiring the Cubbie Cotton Field project, with the Ruyi banner stamp affixed and signed by Mr Qiu as the 'legal representative or authorised signatory' on behalf of Ruyi. On the same day US $74,800,000 was advanced by EXIM to Ruyi.

10 Following the receipt by Ruyi of funds from EXIM, Ruyi provided equity funding to CSTT. In turn, CSTT lent AUD $176,500,000 to CSA pursuant to a loan agreement ('CSA Loan Agreement').

11 On 21 December 2021 Ruyi failed to pay interest due under the loan facility agreement. Default by Ruyi continued thereafter. Ruyi has not made any further payments to EXIM since.

12 In this proceeding EXIM seeks an order that CSTT pay amounts due to it by reason of Ruyi's failure to repay the US $74,800,000 loan and interest. EXIM seeks relief including a declaration that it has a mortgage over the shares in CSA held by CSTT. EXIM seeks injunctive relief restraining CSTT from dealing with those shares and an order for the delivery of the share certificates. In addition, EXIM seeks an order that CSTT pay it an amount equal to all dividends paid or payable to CSTT on the shares it held in CSA.

13 EXIM relies upon various causes of action in contract and in estoppel in support of the relief it claims against CSTT. CSTT denies the existence of the contracts alleged and the estoppel claim.

14 In respect of the primary contract relied upon by EXIM, the 2016 Security Agreement, CSTT alleges there was no consideration for the contract and that the person who signed the contract on its behalf was not authorised to do so. CSTT contends that contrary to EXIM's pleaded case, there was no effective ratification of that contract by CSTT.

15 For the reasons that follow I have determined that the claims made in the proceeding by EXIM fail. The proceeding must be dismissed.

(a) EXIM's amended statement of claim ('ASOC') dated 23 August 2023;

(b) CSTT's defence to the ASOC dated 12 February 2024 ('Defence'); and

(c) EXIM's amended reply dated 18 November 2024 ('Reply').

17 EXIM began its closing submissions by stating that CSTT is bound, and should be held to, the promise it made to pledge and then mortgage its shares in CSA. That promise was made in return for EXIM providing the US $74,800,000 loan to CSTT's parent company, Ruyi, for the purpose of financing the acquisition of Cubbie Station by CSA, the entity in which CSTT has an 80% shareholding.

18 In answer to EXIM's case, CSTT submitted this proceeding is a paradigm example of what occurs when a company fails to protect its own interests by not ensuring the proper drafting and execution of key documents. By reason of the circumstances surrounding the execution of key documents, any reasonable person would have been on notice that there were serious questions about the authority of the individuals who signed documents on behalf of CSTT to bind CSTT.

19 As part of its pleaded case EXIM alleges, and CSTT denies, that on 21 January 2013 EXIM and Ruyi entered into a 'Facility Agreement' which was constituted by more than the loan facility agreement dated 21 January 2013 ('Facility Agreement'). EXIM alleges the Facility Agreement was partly in writing and partly oral. It alleges, and CSTT disputes, that in addition to the loan facility agreement itself, the Facility Agreement was constituted by the 'Ruyi Letter of Undertaking' and the 'CSTT Letter of Undertaking', both dated 18 January 2013, and by conversations between representatives of EXIM, Ruyi and CSTT.

20 The ASOC alleges there were terms and conditions of the Facility Agreement said to be expressly contained within the CSTT Letter of Undertaking and implied from both the passing of a resolution on 18 January 2023 ('CSTT Resolution') and the provision of a copy of that resolution to EXIM. The CSTT Resolution provided that:

1. CSTT in its capacity as a wholly owned subsidiary of Ruyi and an entity providing security for the loan to Ruyi, its parent company, would pledge (mortgage) its 80% equity in CSA and enter into the Security Agreement to secure the entry into the Facility Agreement; and
2. CSTT in its capacity as a wholly owned subsidiary of Ruyi and an entity providing security for the loan to Ruyi, its parent company, would pledge (mortgage) its 80% equity in CSA and enter into the Security Agreement to secure the provision of the loan to Ruyi.

21 In its Defence, CSTT admits that Mr Qiu signed the Ruyi Letter of Undertaking and the CSTT Letter of Undertaking. It admits there was the loan facility agreement but disputes there was the Facility Agreement as alleged. CSTT pleads that it was not a party to the Facility Agreement as alleged. It pleads that it did not guarantee and has not assumed the obligations of Ruyi under the Facility Agreement. CSTT denies the terms referred to in the previous paragraph were terms of the Facility Agreement. It pleads that any 'pledge' made by Ruyi was not a pledge made by CSTT, and that any board resolutions made by Ruyi were not board resolutions of CSTT.

22 Under the loan facility agreement signed for Ruyi by Mr Qiu as its legal representative, EXIM advanced funds to CSTT's parent company, Ruyi (of which Mr Qiu is the chairman and a director). CSTT submits that EXIM cannot get around the fact that a company has its own legal personality regardless of whether it is one in a group of companies.

23 No evidence was led at trial by EXIM from any person involved in any conversations alleged to form part of the Facility Agreement. No document recording or evidencing any such conversations were in evidence. In closing submissions, counsel for EXIM confirmed that EXIM no longer presses for relief in reliance on the Facility Agreement.[1] For the avoidance of doubt I find there was no Facility Agreement as alleged.

24 Pursuant to the CSA Loan Agreement dated 21 January 2013 CSTT as Lender lent AUD $176,500,000 to CSA as Borrower for the purpose of the acquisition by CSA of all of the business and assets of Cubbie Group Pty Ltd and for working capital for the purposes of owning, operating and managing its assets. The CSA Loan Agreement was signed for CSTT by its two directors, Mr Qiu and Mr Lim.

25 The CSA Loan Agreement was amended in 2019 by a Deed of Amendment between CSTT and CSA ('2019 Deed of Amendment'). The 2019 Deed of Amendment was signed for CSTT by two of its directors, Mr Qiu and his daughter Chenran Qiu who, by that time, was also a director of CSTT.

26 No party seeks relief in the proceeding by reference to the CSA Loan Agreement.

27 The primary claim upon which EXIM relies to seek relief against CSTT is the '2016 Security Agreement'.

28 EXIM alleges that three years after the date of the Facility Agreement, EXIM, CSTT and Ruyi entered into a document entitled 'Security Agreement - Shares dated 25 July 2016' ('2016 Security Agreement').

29 The 2016 Security Agreement is between EXIM as Lender and CSTT as Grantor. EXIM alleges that pursuant to the 2016 Security Agreement, CSTT granted EXIM a 'security interest' and mortgage over its 80% shareholding in CSA.

30 The 2016 Security Agreement was signed for EXIM by Mr Jingxin Li, at that time Vice‑President of the Shandong branch of EXIM. The agreement was signed by Ms Fengmei Gu, described as 'executive director' and an 'authorised representative' of CSTT. Ms Gu is not, and in 2016 was not, a director of CSTT.

31 In its Defence, CSTT seeks to impugn the validity and enforceability of the 2016 Security Agreement. CSTT pleads that the agreement was not supported by consideration provided by EXIM to CSTT, Ruyi or any other party. The agreement was not executed as a deed. CSTT alleges that due to an absence of consideration, the 2016 Security Agreement, if otherwise enforceable, is void and unenforceable as against CSTT.

32 CSTT submits that EXIM's answer to the no consideration submission, that is, to rely on the CSTT Letter of Undertaking and to say that the CSTT Letter of Undertaking forms part of the Facility Agreement entered into more than three years earlier, to which CSTT was not a party and in which CSTT was not mentioned, must be rejected.

33 CSTT contends there is a separate reason why it is not bound by the 2016 Security Agreement. That is because Ms Gu, who signed the agreement purportedly on behalf of and to bind CSTT, was not a director of CSTT and was not otherwise authorised by CSTT or at law to enter into the 2016 Security Agreement.

34 CSTT pleads that no officer or representative of CSTT executed the 2016 Security Agreement. It pleads that Ms Gu has never been a director or employee of CSTT, that she was not authorised to enter into the agreement on its behalf and that CSTT has not, at any time since the 2016 Security Agreement was executed, adopted the 2016 Security Agreement or otherwise endorsed or approved the actions of Ms Gu in executing the 2016 Security Agreement. For those separate reasons, it alleges the 2016 Security Agreement is void and unenforceable as against CSTT.

35 In the Reply EXIM alleges that both EXIM and CSTT executed the 2016 Security Agreement. EXIM alleges that Ms Gu was specifically authorised by CSTT to execute the agreement on its behalf by a directors' resolution dated 25 July 2016 (referred to by EXIM in submissions as the 'Gu delegation'). EXIM relies upon an 'Authorisation Letter' dated 21 July 2016 signed by Mr Qiu as 'duly appointed representative' of Ruyi, in favour of Ms Gu, which describes Ms Gu as the 'Executive President' of Ruyi.

36 EXIM pleads that if it is found that CSTT did not specifically authorise Ms Gu to execute the 2016 Security Agreement, the agreement was nonetheless validly executed by CSTT because CSTT held Ms Gu out and represented to EXIM that Ms Gu was authorised to execute the agreement on its behalf. In those circumstances Ms Gu was acting as agent for, and on behalf of, CSTT. Further, Ms Gu, as director, CEO and/or Executive President of Ruyi, the owner of 100% of the shares in CSTT who was then acting as agent for and on behalf of CSTT, was authorised to sign the 2016 Security Agreement for and on behalf of CSTT.

37 CSTT submitted the application of established principles means that EXIM cannot enforce the 2016 Security Agreement against CSTT. The 2016 Security Agreement is an agreement that CSTT did not sign. CSTT submitted that in an attempt to get around that problem, EXIM advanced a complicated case which alleged that Mr Qiu, one of CSTT's three directors, somehow had the capacity to confer authority on himself and on Ms Gu to bind CSTT, despite CSTT's Memorandum and Articles of Association ('CSTT Constitution') expressly forbidding such a possibility.

38 On 26 July 2016 EXIM registered a security interest in Australia over the shares held by CSTT in CSA on the Personal Property Securities Register ('PPSR') maintained under the Personal Property Securities Act 2009 (Cth).

39 In 2020 Ruyi encountered financial difficulties.

40 On 25 February 2020 a meeting of 33 banking creditors of Ruyi, including EXIM, was held in Shandong in the People's Republic of China ('first creditors meeting').

41 After the first creditors meeting, the banking creditors of Ruyi, including EXIM, entered into a Creditors Agreement with Ruyi ('Creditors Agreement'). CSTT is not a named party to the Creditors Agreement. However, clause 5 of the Creditors Agreement states that 'Ruyi Group refers to all the enterprises controlled by the group'. CSTT is such an enterprise.

42 On 26 March 2021, EXIM attended a second meeting of the creditors committee of Ruyi ('second creditors meeting').

43 EXIM submitted that to the extent CSTT seeks to rely on the Creditors Agreement, to which it is not a party, and meetings between Ruyi and its creditors on 25 February 2020, 15 December 2020 and 26 March 2021 in which it did not participate, to found a further alternative defence in contract law, estoppel or Chinese law, on the facts and the law, these defences cannot succeed.

44 EXIM alleges that in 2020/2021 it entered into three separate agreements with CSTT. The three agreements are:

(a) the Extension Agreement dated 20 March 2020 ('2020 Extension Agreement');

(b) the Supplementary Agreement dated 20 November 2020 ('Supplementary Agreement 1'); and

(c) the Supplementary Agreement dated 19 May 2021 ('Supplementary Agreement 2')

45 Each of the 2020/2021 Agreements is between EXIM and Ruyi and, among other parties, entities related to Ruyi. CSTT is referred to in each of the 2020/2021 Agreements as 'Pledgor B'/'Party I'. Mr Qiu is personally named as a party to each of the 2020/2021 Agreements. He is named as 'Mortgagor D'/'Guarantor B'/'Party F'. Each of the 2020/2021 Agreements provide for the 'seal' of 'Party I' (being, CSTT) below which appears the words 'legal representative or authorized signatory'. In the case of each of the agreements no CSTT seal is affixed. The signature of Mr Qiu appears as 'legal representative or authorized signatory' of CSTT.

46 EXIM contends that Mr Qiu who signed the 2020/2021 Agreements and the CSTT Letter of Undertaking on behalf of CSTT and Ms Gu who signed the 2016 Security Agreement did so with CSTT's actual or ostensible authority. EXIM also relies on the indoor management rule and the principles of ratification in further aid of its case.

47 CSTT denies the validity and enforceability of the 2020/2021 Agreements. It seeks to avoid these agreements by contending that they, too, were not authorised by CSTT. It alleges that none of the 2020/2021 Agreements were executed by CSTT in accordance with clause 105 of its constitution which provides for two directors to sign.

48 CSTT submitted that under the loan facility agreement EXIM obtained a personal guarantee from Mr Qiu, being the same person who purported to confer authority on himself and Ms Gu in an attempt to create an additional security provider, the natural consequence of which would have been to diminish his own personal exposure to enforcement action. Combined with the fact that no consideration was conferred on CSTT, alarm bells should have rung for EXIM before it accepted Ms Gu's signature on the 2016 Security Agreement as sufficient. EXIM was content however to proceed imprudently by not ensuring the 2016 Security Agreement was valid and enforceable.

49 CSTT submitted that in the face of these problems, EXIM claims that CSTT ratified the 2016 Security Agreement by Mr Qiu signing subsequent agreements, again without CSTT's authorisation in accordance with the CSTT Constitution. However, EXIM did not explain how a person who lacks authority to do something can somehow confer authority on himself by simply repeating his own unauthorised behaviour.

50 CSTT pleads in the alternative that if the 2016 Security Agreement and 2020/2021 Agreements are valid and enforceable, which is denied, by agreeing to resolutions of the creditors committee of Ruyi and any entering into binding Creditors Agreements concerning Ruyi that EXIM represented to CSTT that it would not enforce any terms of any of those agreements in any manner that is consistent with the binding Creditors Agreements. CSTT alleges that by reason of such representation EXIM is estopped from enforcing any of the terms of the 2016 Security Agreement and the 2020/2021 Agreements and, separately, was not entitled to commence or maintain this proceeding without the approval of or a resolution from the creditors of Ruyi which EXIM has not obtained.

51 On and from 21 December 2021 Ruyi failed to pay interest to EXIM as required by the loan facility agreement.

52 EXIM seeks to recover the amounts outstanding and unpaid by Ruyi from CSTT and to enforce security held by CSTT over the shares it holds in CSA. EXIM asserts it has a right under clause 6.2 of the 2016 Security Agreement to the payment by CSTT of amounts which remain owing on the US $74,800,000 loan to Ruyi and for an order that CSTT deliver up its share certificates in CSA so that EXIM can exercise its rights under clause 6.6 of the 2016 Security Agreement.

53 Mr Lei Chen gave evidence about the amounts due to EXIM. During the trial Mr Chen updated his evidence on witness statement about those figures including in reliance on an extract from EXIM's systems recording the current amounts outstanding. That evidence establishes that at the date of trial there was principal outstanding and overdue on the US $74,800,000 loan of US $21,400,000, what Mr Chen referred to as 'regular normal' interest and what is referred to in the English translation of the loan account to which Mr Chen referred in his evidence as 'normal' interest unpaid of US $4,272,727.97, compound interest unpaid of US $1,119,300.33, penalty interest unpaid of US $5,155,362.92 and penalty interest repayable compounded of US $657,862.40. There was no challenge to Mr Chen's evidence on these matters. If EXIM is entitled to relief, those are the amounts for which it is entitled to judgment.

B.8 EXIM's alternative 2013 CSTT Undertaking Case in contract and estoppel

54 EXIM advanced two further substantive cases in the alternative in its Reply. CSTT did not take a pleading point. The trial was conducted on the basis that if one or both of the causes of action alleged in the Reply was made out, that EXIM would be entitled as a result to the substantive relief that it seeks.

55 To the extent that any of CSTT's defences regarding the 2016 Security Agreement are accepted, in the Reply, EXIM seeks to hold CSTT to an alleged agreement made on 21 January 2013 when EXIM provided the loan to Ruyi for the purchase of Cubbie Station and entered into the Facility Agreement in consideration for the provision by CSTT of the CSTT Letter of Undertaking ('the CSTT Undertaking Agreement').

56 The foundations for the alternative CSTT Undertaking Agreement case lie in the CSTT Letter of Undertaking, and the 18 January 2013 CSTT Board Resolution ('the CSTT Board Resolution'). EXIM alleges a signed copy of CSTT Board Resolution was provided to it by CSTT.

57 Related to the CSTT Undertaking Agreement, in its Defence CSTT's admits that on or about 18 January 2013 the board of CSTT passed the CSTT Board Resolution. It alleges the CSTT Board Resolution does not constitute a delegation of authority to Mr Qiu to sign the CSTT Letter of Undertaking (in CSTT's Defence called the 'CSTT Commitment Letter').

58 In its submissions CSTT denies the existence of the alleged CSTT Undertaking Agreement. CSTT submits the loan facility agreement does not refer to the CSTT Letter of Undertaking, let alone embody the offer alleged by EXIM to be contained within it.

59 In its Reply, further or in the alternative EXIM contends by reference to representations made in the CSTT Letter of Undertaking and the CSTT Board Resolution that CSTT should be estopped from denying the validity and enforceability of the 2016 Security Agreement and the 2020/2021 Agreements or that they were authorised by CSTT, or from denying that it pledged its shareholding in CSA as collateral and security for the loan under the Facility Agreement ('EXIM Estoppel Case').

60 In response to the EXIM Estoppel Case, CSTT submitted that the estoppel alleged is premised on alleged representations by Mr Qiu (without CSTT's authorisation), made prior to the loan facility agreement being executed. While EXIM claims that CSTT agreed to pledge its shareholding in CSA in consideration for a loan being advanced to Ruyi, EXIM's November 2012 internal Pre‑Approval Report ('EXIM Pre‑Approval Report') undermines its own case. The EXIM Pre‑Approval Report expressly recommended 'that this form of guarantee is not a condition for lending'. Consistent with its own internal recommendation, EXIM did not impose such a condition for lending in the loan facility agreement. Instead EXIM obtained personal guarantees from Mr Qiu and another company only.

61 The parties filed an agreed statement of facts and at trial tendered a revised agreed statement of facts for the purposes of s 191 of the Evidence Act 1958 (Vic). They provided a joint chronology setting out matters agreed and disagreed. The chronology was revised at trial to include court book references, including references to documents in Chinese characters and to the English translations of those documents. Although in some cases there were competing translations of documents, the parties reached agreement concerning which translation should be acted upon. I proceed accordingly.

62 CSTT does not dispute many of the critical matters that would ordinarily entitle a plaintiff such as EXIM to relief under its primary case based on the 2016 Security Agreement, including that:

(a) EXIM granted and advanced a US $74,800,000 loan to Ruyi, under the loan facility agreement;

(b) CSA, the Australian entity which is 80% owned by CSTT, paid the purchase price under the sale agreement and became the owner of Cubbie Station;

(c) On and from 21 December 2021, Ruyi failed to pay any interest to EXIM and has not made any further payments to EXIM in respect of the loan the subject of the loan facility agreement;

(d) On 13 January 2022, EXIM sent Ruyi a letter of demand requesting that it remedy its failure to pay moneys due under the loan facility agreement (as amended by the 2020/2021 Agreements that had adjusted certain repayment terms of the Loan);

(e) On 9 September 2022 and again on 1 December 2022, EXIM issued letters of demand for payment on CSTT in reliance on the 2016 Security Agreement; and

(f) CSTT has not made any payment to EXIM of the sum demanded in its letter of 1 December 2022, nor delivered up to EXIM its original share certificates in CSA.

63 The trial concerned events that for the most part took place a long time ago. For that reason, and due to the nature of the issues and the evidence, the determination of the contested issues primarily turns on the documents.

64 At the commencement of the trial, EXIM submitted three key questions would need to be answered to resolve all of the issues based on the validity and enforceability of the 2016 Security Agreement:

(a) Is the 2016 Security Agreement binding on CSTT?

(b) If the 2016 Security Agreement is valid and enforceable, do its terms support the relief EXIM seeks?

(c) If the 2016 Security Agreement is not valid and enforceable, is EXIM otherwise entitled to relief based on its alternative case in contract or estoppel founded on the CSTT Letter of Undertaking?

65 EXIM submitted that critical to the first question are the issues of authorisation, ratification, consideration, and whether there is any bar on litigation enforcing the 2016 Security Agreement or CSTT Undertaking Agreement.

66 EXIM submitted that critical to the third question is whether the CSTT Undertaking Agreement as pleaded exists, and the legal effect of representations made in the CSTT Letter of Undertaking. The CSTT Undertaking Agreement is also relevant to the question of whether the 2016 Security Agreement was supported by consideration.

67 Following completion of the evidence, the following questions were identified by CSTT:

(a) Did CSTT execute or ratify the 2016 Security Agreement?

(b) Did EXIM give good consideration to CSTT under the 2016 Security Agreement?

(c) Is CSTT estopped from resiling from a promise said to be contained in the CSTT Letter of Undertaking?

(d) Did the CSTT Letter of Undertaking constitute a promise by CSTT that was accepted by EXIM entering into the Facility Agreement, such that CSTT is then bound by the 2016 Security Agreement said to have been executed in performance of the agreement?

(e) Is EXIM estopped, by reason of the application of Chinese law, when read in conjunction with the resolutions of the Ruyi creditors committee and the Creditors Agreement, from commencing and maintaining this proceeding?

(f) Alternatively, does Chinese law operate so as to preclude EXIM from commencing and maintaining this proceeding?

68 Two lay witnesses and two expert witnesses gave evidence and were cross‑examined.

69 Mr Chen, the branch manager of the Shandong branch of EXIM, employed in that role since July 2013, gave evidence that he was in Singapore in July 2016 at around the time the 2016 Security Agreement was signed. As earlier mentioned, Mr Chen also gave evidence about the amounts outstanding under the loan facility agreement.

70 Mr Wayne Materne who is currently the Australian representative of CSTT and CSA gave evidence on behalf of CSTT. Mr Materne's first involvement with CSTT, CSA and with Ruyi was in March 2019 when he joined the Ruyi Australia Group as the Chief Financial Officer of CSA and Lempriere.

71 Two witnesses gave expert evidence concerning Chinese law. That evidence was directed to meetings between Ruyi and its banking creditors including EXIM that took place in Shandong beginning on 25 February 2020, to resolutions of the creditors committee of Ruyi, to the Creditors Agreement and to Regulatory Notices issued in the People's Republic of China in the context of financial difficulties encountered by Ruyi. The expert evidence relates to the estoppel case pleaded by CSTT in the alternative in its Defence and to CSTT's pleaded claim that EXIM was not entitled to maintain this proceeding against it because EXIM did not obtain the approval of the banking creditors of Ruyi to do so.

72 Both expert witnesses travelled to Australia to give their evidence. Each prepared separate reports and both participated in and prepared a joint report.

73 Mr Xiao Chen, who practices as a lawyer in Beijing, was called as an expert witness by EXIM. Ms Yongmei Wang ('Ms Yang'), who is qualified as a lawyer in the People's Republic of China and has previously practiced there but currently resides in Canada, was called as an expert witness by CSTT.

74 There were some objections to the expert evidence. The expert evidence was received in accordance with a joint proposal prepared by the parties. As I have determined it is unnecessary to rule on the alternative case raised by CSTT in its defence that would have involved a consideration of the expert evidence concerning Chinese law it is unnecessary to set out the terms of the joint proposal.

75 EXIM was highly critical of CSTT's failure to call Mr Qiu or any of CSTT's directors.

76 It submitted that Mr Qiu is the critical person, that EXIM understood he was the 'actual controller' of the Ruyi Group, that he held 51% equity in the holding company and that members of his family occupied important positions within the group including as president and as two of the vice presidents of the Ruyi Group. It submitted that Mr Qiu was perceived by EXIM not to be in want of authority but 'teeming with it'.

77 EXIM submitted that Mr Qiu remains the legal representative of Ruyi, a director of Ruyi and of CSTT and that his daughter, Ms Qiu, is one of the other two current directors of CSTT. Ms Qiu affirmed an affidavit regarding CSTT's discovered documents as recently as 23 February 2024. The other director, Mr Lim, is based in Singapore. EXIM submitted there is no evidence of Mr Lim having taken an active role in the business of CSTT after he signed the CSA Loan Agreement dated 21 January 2013.

78 EXIM submitted that Mr Qiu's signature is on almost every critical document in the case. Yet he has not been called to give evidence, including of his involvement, if any, in conversations or negotiations referred to in the EXIM Pre‑Approval Report, a copy of which was disclosed to CSTT in February 2024.

79 EXIM submitted that in the absence of any evidence from Mr Qiu or anyone from CSTT involved in the original loan application in 2012, the EXIM Pre‑Approval Report and the minutes of the EXIM Credit Approval Committee meeting of December 2012, when taken with the CSTT Letter of Undertaking, the CSTT Board Resolution and various agreements responding in almost mirror terms to the internal EXIM records remain the best evidence of the loan conditions that EXIM imposed on Ruyi and its entities, and the security for the loan that CSTT promised to provide.

80 EXIM submitted that critically, neither Mr Lim nor Ms Qiu have been called to explain what they knew or did not know about the various documents signed by Mr Qiu in 2013, 2016, 2020, or 2021 when they were directors of CSTT, including the 21 July 2016 Authorisation Letter signed by Mr Qiu in favour of Ms Gu and Mr Qiu's execution of the 2020/2021 Agreements.

81 EXIM accepts that it bears the onus of establishing the ratification by CSTT of any previously unauthorised acts. Given the key documents which bear Mr Qiu's signature only, EXIM invited the Court to draw appropriate inferences from the failure to call CSTT's directors to provide evidence of:

(a) what they knew or did not know about the actions of Mr Qiu, and when they knew it;

(b) what they knew or did not know about the registration of security interests on the PPSR and the Singapore Accounting and Corporate Regulatory Authority ('ACRA') registers, and when they knew it; and

(c) if and when that information was known, why no action was taken to remove Mr Qiu as a director, disabuse third parties of understandings they may have had from Mr Qiu's unilateral actions, or correct the information contained on public registers.

82 EXIM submitted that Ms Qiu and Mr Lim could have given the evidence as to the limits of Mr Qiu's authority, and how those limits were in practice enforced by CSTT's directors. They could have given evidence as to their level of involvement in the operations of CSTT, in circumstances where the current state of the evidence points to them only being involved in the execution of three documents (two of which are internal to the Ruyi Group) over the whole period covered by the litigation:

(a) the CSTT Board Resolution authorising CSTT's pledge of shares in CSA, if such a pledge is able to be made, if not CSTT will not pledge the shares to others until the loan from EXIM is repaid. CSTT admits this resolution was signed both by Mr Qiu and by Mr Lim, but contends the document was merely an 'internal' resolution. No director from the time was called to explain why CSTT 'internally' passed a resolution, seemingly for no obvious purpose, which found its way into EXIM's Ruyi loan archives;

(b) the CSA Loan Agreement, an agreement internal to the Ruyi Group and was never provided to EXIM until discovery. This document confirms the last time Mr Lim signed a document on behalf of CSTT was in January 2013. In so doing, Mr Lim agreed that all notices under that agreement should be directed to the attention of Mr Qiu. This document speaks to the centrality of Mr Qiu's authority over and within CSTT. Mr Lim is entirely absent in the evidence from this point on. This absence is not explained, when evidence from a director of CSTT might have explained it; and

(c) the 2019 Deed of Amendment between CSTT and CSA, another document which is internal to the Ruyi Group and which was never provided to EXIM until discovery. The 2019 Deed of Amendment confirms that Ms Qiu had the opportunity in 2019 to direct notices under the CSA Loan Agreement to a person other than Mr Qiu. Instead, this deed confirms that no other term of the 2013 Loan Agreement is to be altered. In so doing, Ms Qiu affirmed the ongoing centrality of her father in the affairs of the company.

83 EXIM submitted the inference the Court may draw is that any evidence the directors could have given on these matters would not have assisted CSTT. The failure to call the directors means that the Court would be more confident in finding that Mr Qiu had actual implied authority to act as a de facto managing director of CSTT.

84 EXIM submitted that set against the three documents signed by two directors of CSTT there are several agreements and documents which are signed only by Mr Qiu. These documents span a period of eight years, some made their way to EXIM and some to the public at large.

85 EXIM submitted the absence of evidence from any director of CSTT would give the Court greater confidence in finding what appears obvious from the documents: that Mr Qiu acted in the way he did, including in executing numerous internally and externally facing documents spanning at least eight years, because he had the actual implied authority to do so. The absence of signatures from other directors on key documents only serves to confirm rather than contradict Mr Qiu's authority. He did not need the signatures of other directors, because he was authorised, at least impliedly, to act alone.

86 CSTT submitted that much of EXIM's Jones v Dunkel[2] submission is directed to a case not pleaded by EXIM. The Court cannot draw inferences against a party because it has not adduced evidence in respect of a case that was never put against it.[3] The rule only applies where a party is 'required to explain or contradict' something.[4] Three matters should be borne in mind:

(a) Having regard to the issues as defined by the pleadings, there was nothing to explain or contradict by any person not called by CSTT.

(b) EXIM bore the onus of establishing that CSTT executed or ratified documents. It was not CSTT's onus to disprove.

(c) CSTT's defence relied on contemporaneous documents. It disavowed the actions and conduct of Mr Qiu and Ms Gu.

87 For the rule in Jones v Dunkel to apply, it must be demonstrated that the evidence of the missing witness would have elucidated a matter.[5] In this case there are no contested conversations in issue between the parties. Nor is credibility of any witness in issue. Given this is principally a documentary case, there would have been no point in CSTT adducing oral evidence from any person to make good CSTT's disavowal - it is for EXIM to prove otherwise.

88 These matters serve as an explanation such that it would not be appropriate for any Jones v Dunkel inference to be drawn adverse to CSTT.[6]

89 Addressing the position of Mr Qiu specifically, he could not have given self‑serving evidence so as to confer authority on himself. Authority can only be conferred on Mr Qiu by CSTT in accordance with the CSTT Constitution, which requires resolutions in writing. CSTT gave full discovery, and EXIM has not suggested otherwise. There is not one document that confers any authority on Mr Qiu. Accordingly, any oral testimony from him would not have served any purpose.

90 To the extent EXIM submits that CSTT should have called evidence from another director, the same point arises. How would evidence from another director have resolved the real issues in dispute between the parties?

91 For these reasons, no Jones v Dunkel inference can or should be drawn against CSTT. Further, even if the Court were inclined to draw inferences (which it ought not) this does not enable the Court to supply facts where EXIM has not discharged its burden in the first instance.

F.3 Consideration: The principles and their application

92 Whether a party is required to call a witness to contradict a proposition or to explain something that did or did not occur is guided by the issues raised on the pleadings and by the evidence adduced at trial. The rule only applies where a party is required to explain or contradict something.[7] Disputed questions of fact are to be decided by reference to the evidence that has been adduced at trial and not by reference to speculation about what other evidence might possibly have been led.[8]

93 A Jones v Dunkel inference does not operate to supply a gap in the evidence.[9] It can only make evidence that has been adduced more or less probable.

94 The unexplained failure by a party to call a witness may support an inference that the evidence of that witness, if called, would not have assisted that party's case.[10] The failure to call a witness may also permit an inference that is unfavourable to the party who did not call the witness to be drawn with greater confidence.[11] That is the case if the inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[12]

95 It cannot be said in this case that some general inference adverse to CSTT must be drawn due to the failure to call Mr Qiu, Ms Qiu, Mr Lim or any of them.

(a) There was no issue in contest on the pleadings concerning the role of Mr Qiu in relation to Ruyi. Ruyi is not a party to the proceeding.

(b) There was no issue on the pleadings about whether Mr Qiu was 'perceived by EXIM ... to be in want of authority', except in relation to EXIM's Estoppel Case in the Reply. The various EXIM claims founded in contract depend on objective not subjective intent.

(c) Although there was no evidence of any document signed by Mr Lim after 2013, he remained a director. EXIM did not adduce evidence that Mr Lim did not sign any documents after January 2013 or to show that Mr Lim played no active role in the affairs of CSTT after that date. EXIM did not adduce evidence concerning Mr Lim's role which Mr Qiu or Ms Qiu might have been expected to address in evidence. The important evidence relating to Mr Lim is that he was a director, his name appeared on the 'Gu delegation' with provision for him to sign in July 2016 and his signature was not affixed. That fact must have been obvious to any representative of EXIM who read the document at the time. No witness on behalf of EXIM gave evidence concerning the absence of Mr Lim's signature that he or another witness on behalf of EXIM might be expected to explain or rebut.

(d) No such inference is properly drawn concerning EXIM internal documents, including the EXIM Pre‑Approval Report. There is no evidence Mr Qiu was ever provided with a copy of the report or consulted as to its contents.

(e) Where documents signed by Mr Qiu alone are in issue, the failure to call Mr Qiu to explain why he alone signed those documents might be the subject of a Jones v Dunkel inference if it were not for the pleaded reliance by CSTT on article 105 of its constitution - two directors to sign. There was no evidence that the Board of EXIM passed a resolution permitting Mr Qiu alone to sign documents where his authority to do so was in issue in the proceeding.

(f) The inference EXIM seeks to be drawn from the failure to call Mr Qiu goes beyond making an existing inference more probable and seeks to fill a gap in the evidence adduced by EXIM, that gap being that Mr Qiu was given authority.

(g) It cannot be seriously contended that Mr Qiu, Mr Lim or Ms Qiu should have been called in response to the July 2016 Authorisation Letter. That was a letter on Ruyi letterhead signed by Mr Qiu on behalf of Ruyi. It was not a letter on CSTT letterhead.

(h) The 2020/2021 Agreements signed by Mr Qiu bear the description 'seal'. Some of the persons signing those documents such as Ruyi in the case of Supplementary Agreement 1 affixed the seal of the company. Although there was provision for the seal of CSTT to be affixed that did not occur. Mr Qiu alone signed. It was for EXIM to prove the document was validly executed by CSTT and binding on it as a result. It was not for Mr Qiu or CSTT to prove the agreement was not validly executed and not binding.

(i) In the same way, it was not for CSTT to prove what it did and did not know about Mr Qiu's actions. Whether CSTT was bound by those actions is a matter to be determined by reference to its constitution.

97 The events relevant to this dispute occurred over a decade, between 2012 and 2022.

98 When considering the events in chronological order I have been assisted by the revised chronology.

99 I have also been assisted by an aide memoire provided by EXIM which identifies, for critical documents in the proceeding, whether that document is a CSTT document or another party's document, the named parties (both internal and external to the Ruyi Group), whether documents signed on behalf of CSTT were signed by Mr Qiu only or by two directors, and whether the documents were produced by the plaintiff or the defendant, or both as part of discovery in the proceeding.

100 Since the events in question cover period of approximately 10 years, it is convenient to separately identify particular time periods relevant to the issues in dispute. As various of the events are identified in their chronological context I have included some references as to how the parties contend those events should be viewed as part of their respective cases.

101 In September 2009 EXIM granted Ruyi a 'highest comprehensive credit line of RMB 1.5 billion'.

102 On 4 July 2012 Ruyi and Lempriere signed a term sheet regarding the proposed acquisition of Cubbie Station.

103 The parties agree that on 27 September 2012, CSTT adopted the CSTT Constitution. On 4 October 2012 CSTT was incorporated in Singapore. Mr Qiu and Mr Lim were appointed as directors.

105 On 11 October 2012 CSA as purchaser and Ruyi as guarantor entered into the sale agreement for the purchase of Cubbie Station.

106 In November 2012 the Corporate Banking Department of the Shandong branch of EXIM prepared the lengthy and apparently comprehensive EXIM Pre‑Approval Report in relation to a proposed loan for a term of 12 years from EXIM to Ruyi.

107 EXIM placed considerable reliance on the EXIM Pre‑Approval Report which includes the following passages to which attention was directed during the trial:

On May 20, 2009, Qiu Yafu, Chairman of Ruyi Group, together with Academician Yao Mu, went to the head office to make a special report to President Ruogu, and the main persons in charge of the head office, risk management department, evaluation and review department, business development and innovation department, and Qingdao branch participated.

...

In September 2009, the Bank granted Ruyi Group the highest comprehensive credit line of RMB 1.5 billion, and in November, the first policy loan was launched.

...

On May 7, 2010, President Li Ruogu came to Shandong Ruyi Technology Group for inspection. After listening to the report on the development ideas and development blueprint of Ruyi Group ...

...

The Export‑Import Bank of China will spare no effort to support Ruyi Group's projects in line with national policies ...

...

On November 2, 2012, the company's business department reported the "Report on the Progress of Ruyi Group's Acquisition of Australian Cubbie Cotton Field Project" to the assistant to the president of Xingyong and the president of Chongqing Branch after countersigning Qingdao Branch and Chongqing Branch, which made it clear that with Ruyi Group as the main body of financing, Qingdao Branch organized backbone forces to carry out pre‑loan investigation, and the company's business department provided technical support for it. In view of the tight time and heavy tasks, in order to ensure that the loan approval work is completed within the time limit, the meeting agreed that the loan officers involved in the project of Qingdao Branch and the Corporate Business Department will review the materials at the same time and establish a regular communication mechanism.

...

Part 2 Ruyi Group

First, the basic situation

(1) Overview

Ruyi Group is located in Ruyi Industrial Park, Jining High‑tech Development Zone, established in December 2001 with a registered capital of 192.87 million yuan, and the legal representative Qiu Yafu. The company is a large‑scale comprehensive textile industry with complete industrial categories and outstanding technical advantages in domestic textile‑related fields, covering wool worsted, cotton spinning, woven garments, printing and dyeing, denim, fiber, knitted garments, etc., ranking 397th among the top 500 Chinese enterprises, 211th among the top 500 manufacturing enterprises in China, 5th among the top 500 Chinese textiles, and the top 5 among the top 100 in China's textile and garment industry.

...

Third, the level of management

Ruyi Group implements the president responsibility system under the leadership of the board of directors, and has a president, an executive president and a vice president, responsible for the implementation of the objectives set by the Board of Directors and the day‑to‑day operation and management.

...

(1) Management profile

The management of Ruyi Group is composed of the chairman, president, secretary of the party committee, executive president and vice president, including 1 chairman, president and secretary of the party committee, 6 executive presidents, 11 vice presidents and 1 chief accountant. The relevant situation is as follows:

Position name

Chairman Yafu Qiu (Director)

...

Vice President WANG QIANG, MA HAITAO, LI AIYING, GU FENGMEI, ...

...

First, the project plan

Ruyi Group and Lempiere plan to form a joint venture to acquire Australian Cubbie Cotton Field, with a total investment of 293,254,900 Australian dollars, of which Ruyi Group will invest 234,603,900 Australian dollars, accounting for 80 Lumpiere will invest 58,651,000 Australian dollars, accounting for 20 target assets Cubbie Cotton Field includes 93,483 hectares of land, 6,876 square meters of ancillary buildings, and 513 million cubic meters of water rights.

THE SPECIFIC PROCEDURES ARE: RUYI GROUP REGISTERED A WHOLLY‑OWNED COMPANY IN SINGAPORE CSTT CO HOLDINGS PTB LTD (HEREINAFTER REFERRED TO AS "CST"); CSTT AND LEMPIERE INCORPORATED A JOINT VENTURE COMPANY CSS AGRICULTURE PTY LTD ("CS") IN AUSTRALIA, WITH CSTT HOLDING 80% AND 20% Lempiere. CS invested in the acquisition of Cubbie cotton field assets and built a ginning production line. The agreed closing date of the project is December 21, 2012.

...

(c) CSTT situation

CSTT is a wholly‑owned subsidiary of Ruyi Group in Singapore, registered on October 4, 2012, registration number 201224508M, and registered capital of S$1.

(iv) CS case

CS is a joint venture company established by CSTT and Lumpiere in Australia, CSTT holds 80 shares of Lumpiere holds 20 shares, registered on October 5, 2012, Australian company number 160516594, address is Murphy, Victoria, Australia

...

(4) Analysis of repayment ability

... Considering that the project is an overseas agricultural investment project, there are many uncertainties after the acquisition, and the enterprise needs to continue to invest liquidity to maintain normal operation, the other two projects of the Bank will be repaid next year, out of prudent consideration, it is recommended to give the enterprise a loan term of 12 years. ... The specific repayment plan is shown in the conclusion part), and the average debt repayment performance ratio is 1.95, which is in line with the relevant regulations of our bank.

9. Future management measures

After the completion of the project, Ruyi Group will take a series of operation and management measures, mainly including the following ...

...

(7) According to the requirements of the Australian Foreign Investment Review Board for the approval conditions of the project, Ruyi Group will hold the equity of the target company from 80% to 51 within three years ...

...

Part IV Guarantees

1. In order to set up a reasonable guarantee plan, in the case of limited time, our department investigated the real estate of Ruyi Group with legal procedures and the equity of listed companies, and learned that the relevant situation is as follows:

(1) The status of real estate.

...

(3) Cubbie cotton field assets

According to the application submitted by Ruyi Group to FIRB, the acquisition loan was applied for without using Australian assets as collateral. Lawyers from Norton Rose attorneys noted that this is a must requirement for FIRB to approve the project.

Therefore, Ruyi Group stated that it was unable to provide our bank with a mortgage guarantee for the assets of Cubbie Cotton Field.

2. Guarantee and Guarantee Program

In the event that the delivery date is approaching and Ruyi Group is unable to provide elective asset collateral, after discussion, it is proposed to support the project by way of exempting the guarantee, and after repeated negotiation and communication with Ruyi Group, it is proposed to provide additional guarantees and safeguards as set out below:

(1) Add the Three Gorges Textile Joint and Several Liability Guarantee.

(2) Add Qiu Yafu's personal joint and several liability guarantee.

(3) With regard to the additional pledge of CSTT's entire shareholding, our office has consulted Norton Rose on the relevant procedures and legal issues. Norton Rose indicated that it had enquired with the relevant Singaporean organisations about the specific procedures and would reply later. It was learnt from the Head Office that the Corporate Services Department had handled the equity pledge in Singapore in April this year, and that it would take about three months from the preparation of the equity pledge agreement to the completion of all the formalities. Therefore, it is recommended that this guarantee is not a condition for lending (the rest is ineligible)

(4) Additional CS 80% equity pledge, Norton Rose said that CS equity pledge faces three problems: firstly, the pledge of equity in an Australian company to a Chinese stateowned bank needs to be reported to the government of Australia for approval, which may be rejected; secondly, the approval time is more than one month; and thirdly, it needs to be agreed by Lempiere. Therefore, it is recommended that this form of guarantee is not a condition for lending. If the CS equity pledge is not approved by the Australian government or Lempiere's consent, Ruyi Group and CSTT are required to undertake not to pledge 80% of the rights held by Ruyi Group without our bank's consent until the loan is repaid by our bank.

(5) The second mortgage on the real estate under partial equity interest of the project in Japan Rena Co., Ltd.

(6) Additional second mortgage on the real estate under the Ruyi 50 million metres Spun High Grade Shirt Fabric Project.

(7) Ruyi Group, CSTT and CS are required to promise not to mortgage the assets of Cubbie Cotton Field without the consent of our bank before the loan is repaid.

(8) Ruyi Group is required to mortgage the relevant collateral to the project after repaying the working capital loan of our bank when it is due in the future.

(9) CSTT is required to give priority to the repayment of the loan with the proceeds from the reduction of CS equity. CSTT holds 80% of the CS shares, and will reduce its holdings to 51% in the next three years according to the requirements, and Ruyi Group and CSTT promise that the proceeds from the reduction will be used to repay the loans of our bank first; If the shareholding is reduced by way of equity replacement, the obtained equity will be pledged to our bank.

...

2. Affiliates control risks Qiu Yafu, the chairman of the board of directors of the borrower, currently holds 51% of the equity of Ruyi Investment and is its actual controller ... [The directors] ARE ALL RELATIVES OF QIU YAFU. The actual controller can use its dominant position to exert influence on the personnel, finance, production and operation of the enterprise, and may make decisions that are unfavorable to the enterprise, bringing certain risks to the development of the enterprise.

...

(emphasis added)

108 On 24 December 2012 the Credit Approval Committee of EXIM met and agreed to provide a loan to Ruyi for an amount not to exceed RMB 1.072 billion or its equivalent in foreign currency. The minutes of the meeting include:

Guarantee measures: 1. Chongqing Three Gorges Technical Textile Co., Ltd. joint and several liability guarantee; 2. Qiu Yafu's personal joint and several liability guarantee; 3. Occupy the borrower's guarantee‑free credit line in our bank according to the amount of loan disbursement; 4. Within 6 months, the second mortgage of real estate under the 50 million meters of Ruyi Textile high‑grade shirt fabric project will be completed; 5. The acquisition will be completed within 6 months of the second mortgage of real estate under part of the equity project of Japan Rena Co., Ltd.; 6. Within 6 months, the pledge of 51% equity of Jining Ruyi Investment Co., Ltd. held by Qiu Yafu was completed; 7. In the future, after the two working capital loans are recovered at maturity, the real estate mortgage under the working capital loan (including the personal commercial real estate of Qiu Yafu, the actual controller of the borrower); 8. After the pledge conditions are met, the pledge of all the shares of CS and 80% of the shares of CS will be added.

Safeguard measures: 1. The borrower promises in writing to pledge all the equity of CSTT in a timely manner when the conditions are met; 2. The borrower and CS promise in writing to pledge 80% of the equity of CS in a timely manner when the conditions are met, and if they cannot pledge our bank, they shall not pledge others before the loan of our bank is repaid;

• 3 -

3. The borrower and CS promise in writing that the funds obtained from the reduction of the equity of CS company will be used to repay the loan of our bank first, or the equity obtained by way of replacement will be pledged to our bank; 4. The borrower and CS promise in writing that they shall not mortgage the land assets of Cubbie Station cotton field to a third party without the consent of our bank before the loan is repaid; 5. The borrower and the owner of the mortgage property under the loan of the 50 million meters Ruyi Textile Fabric Project and the acquisition of Rena Project promise in writing to complete the second mortgage of the relevant collateral within 6 months after the loan is disbursed; 6. The owner of the mortgage property under the two working capital loans promises in writing to complete the additional mortgage for the project in a timely manner after the loan is recovered when the loan expires in the future; 7. Qiu Yafu promised in writing to complete the procedures for pledging 51% of the equity of Ruyi Investment held by him to our bank within 6 months after the loan; 8. The borrower shall issue a written undertaking to notify the Bank of the issues before the board meeting, and the Bank shall choose to attend the meeting; 9. The borrower shall issue a written undertaking that the borrower shall obtain the opinion of the Bank for its future major investment behaviours.

Loan conditions: 1. Complete the approval procedures of the National Development and Reform Commission, the Ministry of Commerce and the State Administration of Foreign Exchange. 2. The borrower's own funds are in place in the same proportion in advance. 3. Complete the legal and executive guarantee procedures of Chongqing Three Gorges Technical Textile Co., Ltd. and Qiu Yafu. 4. Complete all the above safeguard measures.

(emphasis added)

109 In January 2013 there were seven directors of Ruyi, including Mr Qiu. I was informed that Ruyi has a written constitution, however Ruyi's constitution was not in evidence.

110 On 18 January 2013 the board of Ruyi passed a resolution signed by all seven directors in relation to the proposed loan. A copy of the resolution was discovered by both parties. The Ruyi Board Resolution includes the following:

Shandong Ruyi Technology Group Co., Ltd.

Board Resolution

1. Approval to pledge using the entire share of our wholly‑owned subsidiary ‑ CSTT CO Holdings Pte Ltd (Singapore), and the 80% share of its subsidiary CS Agriculture Pty Ltd(Australia), for our company and Lempriere (Australia) Pty Ltd jointly to apply to China EXIM Bank for a loan of CNY 1.1 billion or its equivalent in foreign currency of the acquisition of the Australia Cubbie Station Project. If a pledge cannot be made, our company will not pledge it to others until the loan from China EXIM Bank is repaid.

...

1. Prior to convening a board meeting, our company will provide written notice of the agenda to China EXIM Bank, and China EXIM Bank will have the option to attend.

111 On 18 January 2013 the board of CSTT passed the CSTT Board Resolution. The Chinese language version of the CSTT Board Resolution was signed by the two directors of CSTT, Mr Qiu and Mr Lim. The CSTT Board Resolution, a copy of which was discovered by both parties was in the following terms:

1. We agree to take 80% equity of CS AGRICULTURE PTY LTD (Australia Company) held by our company, To provide collateral guarantee for the one hundred and one billion RMB or equivalent foreign currency loan applied by Shandong Ruyi Technology Group Co., LTD. (the parent company of our company) and Lumpley (Australia) Co., LTD to the Export‑Import Bank of China for the joint acquisition of the Kabi cotton field project in Australia. If the loan cannot be pledged, it shall not be pledged to any other person until the loan is repaid.
2. We agree not to pledge the cottonfield land assets of the cottonfield to any third party without the consent of the Import and Export Bank of China before the payment of the one hundred and ten million yuan or equivalent foreign currency loan applied by Shandong Ruyi Technology Group Co., Ltd. to the Export‑Import Bank of China for the acquisition of the cottonfield project in Australia.
3. We agree to the funds obtained from reducing the shares held by our subsidiary CS AGRICULTURE PTY LTD (Australia company) from 80% to 51%. Give priority to repay the one hundred and one billion yuan or equivalent foreign currency loan applied to the Export‑ Import Bank of China for the acquisition of the Australian Kabi Cotton Field Project or pledge the equity obtained by the replacement method to the Export‑Import Bank of China.

112 On 18 January 2013 Mr Qiu signed what is referred to in the ASOC as the 'Ruyi Letter of Undertaking'.

113 On 18 January 2013 one of the two directors of CSTT, Mr Qiu, signed the CSTT Letter of Undertaking, copies of which were discovered by both parties. Reproduced in full, the CSTT Letter of Undertaking states:

CSTT CO HOLDINGS PTE. LTD.

Commitment Letter

To China EXIM Bank:

Regarding the matters related to the loan application to your institution for the joint acquisition of the Australia Cubbie Station project by our parent company, Shandong Ruyi Technology Group Co., Ltd. and Lempriere (Australia) Pty Ltd, our company undertakes the following:

1. Using an 80% share of our subsidiary, CS Agriculture Pty Ltd (Australia), our company pledges to provide collateral for the CNY 1.1 billion or its equivalent in foreign currency loan applied by Shandong Ruyi Technology Group Co., Ltd. for the acquisition of Australia Cubbie Station project. If a pledge cannot be made, our company will not pledge it to others until the loan is repaid to your institution.

2. Without the prior consent of your institution, our company will not pledge Cubbie Station land assets to any third party until the settlement of the CNY 1.1 billion or its equivalent in foreign currency loan applied by Shandong Ruyi Technology Group Co., Ltd. for the acquisition of the Australia Cubbie Station project.

3. The funds obtained by our company from reducing the shares from 80% to 51% in CS Agriculture Pty Ltd (Australia) will be prioritized for the repayment of the CNY 1.1 billion or its equivalent in foreign currency loan applied for the acquisition of the Australia Cubbie Station project to your institution or pledging the share acquired by way of exchange to your institution.

This commitment is hereby made.

Signature

18 January 2013

(emphasis added)

114 On 21 January 2013 EXIM as Lender and Ruyi as Borrower entered into the loan facility agreement for the US 74,800,000 loan. On the same day EXIM advanced the loan funds to Ruyi.

115 The evidence does not include a letter of offer in relation to the loan facility agreement as would be common in Australia in relation to loan transactions of this magnitude. It is also the case that there is no evidence of email, WeChat or other communications between EXIM on the one hand and all or any of Ruyi, CSTT or CSA on the other hand between the EXIM Pre‑Approval Report in November 2012 and the signing of the loan facility agreement on 21 January 2013 and the making of the advance on the same date.

116 On 21 January 2013 CSTT as Lender and CSA as Borrower entered into the CSA Loan Agreement pursuant to which AUD $176,500,000 was lent by CSTT to CSA for the purpose of the acquisition by CSA of all the business and assets of Cubbie Group Pty Ltd and working capital for the purposes of owning, operating and managing its assets.

117 Although not part of its pleaded case EXIM submitted the signing of documents on 18 January 2013 by Ruyi, CSTT and CSA, a suite of agreements, supports a finding that CSTT authorised the agreements as it shows the transaction was comprised of multiple agreements. EXIM submitted that from the execution of those documents by the entities in the Ruyi Group, if CSTT was not authorised, it was entirely proper for EXIM to assume that it was.

118 It is convenient at this point to mention some aspects of the 2013 loan facility agreement.

119 The express terms of the loan facility agreement, include that:

(a) any amendment or supplement to any provision of the loan facility agreement shall be in writing and shall come into effect once signed and sealed by the Borrower [Ruyi] and the Lender [EXIM], and constitute an integral part of the loan facility agreement (article 38);

(b) any extension or delay granted by the lender to the Borrower in connection with the performance of obligations under the loan facility agreement shall not restrict any right or interest of the Lender in accordance with the agreement, laws and regulations and shall not be deemed as a waiver and nor shall it affect the performance by the Borrower of any of its obligations under the agreement (article 42);

(c) notices pursuant to the agreement shall be given or made in writing and shall be delivered to the relevant addresses of the parties as stated at the beginning of the agreement, namely Mr Qiu on behalf of Ruyi and to Mr Ruogu Li on behalf of EXIM (article 47);

(d) the agreement shall be governed by and construed in accordance with the laws of the People's Republic of China (article 43).

120 Chapter 9 of the loan facility agreement headed 'Securities' contains article 32, which states that the loan is secured by joint and several guarantees given by each of Chongqing Sanxia Technology Textile Co., Ltd ('Sanxia') and Mr Qiu and his spouse. The guarantees are identified by reference to specific separate 'Guarantee Contracts'.

Chapter 9 Securities

Article 32 The Loan is secured in the following manner:

☑ Chongqing Sanxia Technology Textile Co., Ltd. provides a _joint and several liability guarantee, and will enter into a separate Guarantee Contract, the number of which is 2070001062013210156BZ01.

☑ Qiu Yafu and his spouse provides a _joint and several liability repayment guarantee, and will enter into a separate Guarantee Contract, the number of which is 2070001062013210156BZ02.

The above documents are collectively referred to as the 'Security Contracts'.

122 It is the case for EXIM that article 32 cannot be read to be exhaustive concerning securities, it is part of a loan document only as between Ruyi and EXIM which deals only with the position of EXIM vis‑à‑vis Ruyi. EXIM submitted the loan facility agreement does not include all involved parties and nor does it involve or even refer to the board resolutions outlined earlier in the chronology.

123 Article 36 of the loan facility agreement listing the events of default is picked up as the definition of an event of default under the 2016 Security Agreement.

124 CSTT drew attention to features of the loan facility agreement which it submitted to be matters of significance in the context of EXIM's reliance on the later 2016 Security Agreement:

(a) the loan facility agreement was entered into between EXIM and Ruyi, together with Sanxia and Mr Qiu and his spouse as security providers;

(b) CSTT was not a party to the agreement and nor is it mentioned in the agreement;

(c) the parties to the loan facility agreement did turn their mind to security for the loan as is evident from chapter 9, specifically the joint and several guarantees given by Sanxia and Mr Qiu and his spouse pursuant to article 32. Despite security being mentioned in the loan facility agreement, there is nothing on the face of the loan facility agreement to suggest that CSTT would in any way be required to provide security for the loan at some time in the future;

(d) none of the 'safeguard measures' or written pledges referred to in the EXIM Pre‑Approval Report are referred to in the loan facility agreement; and

(e) Mr Qiu's role as a personal guarantor of the loan in favour of Ruyi has special significance when it comes to assessing whether EXIM was put on inquiry in terms of the potential application of the indoor management rule.

125 In closing CSTT referred to submissions by EXIM that this Court should have regard to Chinese law, and should ignore the common law of Australia, in relation to the interpretation of the loan facility agreement and also in relation to the CSTT Letter and the CSTT Board Resolution.

126 The loan facility agreement is expressed to be governed by the laws of the People's Republic of China, was signed in China and is between two Chinese corporations. During the trial CSTT placed reliance on article 32 of that agreement concerning authority. CSTT did not expressly refer to article 32 in its Defence, however in response to the Facility Agreement plea, CSTT stated that it would rely on the full terms and effect of the Facility Agreement. In those circumstances, as submitted by EXIM, CSTT put article 32 in issue. Questions relating to the interpretation of the loan facility agreement including concerning article 32 are to be answered to the extent necessary in accordance with Chinese law.

127 There is no plea that the Court should have regard to Chinese law in relation to the CSTT Letter of Undertaking or the CSTT Board Resolution. The parties agreed in their joint expert evidence proposal that the existence and interpretation of the 2016 Security Agreement and the CSTT Undertaking Agreement are matters to be decided according to Victorian law.

128 No attention was directed during the trial to communications that occurred between EXIM on the one hand and any or all of Ruyi, CSTT or CSA on the other between the end of January 2013 and July 2016.

129 In August 2015, following a proposal from EXIM to the Foreign Investment Review Board ('FIRB') to acquire and enforce security interests over the shares held by CSTT in CSA, FIRB wrote to Corrs Chambers Westgarth on behalf of EXIM. The FIRB advised it had no objection to the proposal.

130 On a date in 2016 not specified in the letters themselves or in the agreed chronology, Mr Qiu signed two letters. The first is from Ruyi to EXIM confirming that Ruyi is the sole and rightful shareholder of CSTT and stating that its entire shareholding in CSTT is to be charged in favour of EXIM. The second is from CSTT to EXIM and similarly states that Ruyi is the sole and rightful shareholder of CSTT and that CSTT's entire shareholding is to be charged in favour of EXIM. While both letters were signed by Mr Qiu only, the letter from CSTT had provision for both Mr Qiu and Mr Lim to sign as directors of CSTT. Mr Lim did not sign the letter.

131 On 16 June 2016 Ms Qiu was appointed as a director of CSA and on 13 July 2016 she was appointed as an additional director of CSTT.

132 A number of documents were signed on 21 July 2016.

133 On 21 July 2016 Mr Qiu signed a letter on Ruyi letterhead certifying that Ms Gu, the Executive President of Ruyi, had authority to sign on behalf of 'the Company', a reference to Ruyi. This letter was signed by Mr Qiu as 'duly appointed representative' of Ruyi. The letter, which was accompanied by a copy of Ms Gu's passport, was relied on in the proceeding by EXIM and referred to as the Authorisation Letter. It is convenient to adopt the EXIM description, but the adoption of that description is not to be taken as an acceptance of the proposition that the Authorisation Letter relevantly authorised Mr Gu in any way to bind CSTT.

134 The text of the Authorisation Letter, a copy of which was discovered by both parties to the proceeding, is in the following terms:

This is to certify that Ms. Gu Fengmei, passport number [redacted], the Executive President of Shandong Ruyi Science & Technology Group Co., Ltd. ("the Company"), has the authority to sign on behalf of the Company relating to application for the Company entering into a charge of shares of CSTT Co Holdings Pte. Ltd. dated July 25th, 2016 with the Export‑Import Bank of China.

135 The Authorisation Letter relates to authority to sign documents on behalf of Ruyi. It does not purport to be a letter dealing with or authorising Ms Gu to sign any document or documents on behalf of CSTT.

136 On 25 July 2016 a 'Share Charge' agreement was entered into between EXIM as lender and Ruyi as chargor in respect of Ruyi's shares in CSTT. The Share Charge agreement was signed for EXIM by Mr Li and for Ruyi by Ms Gu as its 'Authorised Representative'. The document described Ms Gu by her title, 'Executive Director' of Ruyi. A copy of the Share Charge agreement was discovered by both parties.

137 On the same day, 25 July 2016, Ruyi gave notice to CSTT of the charge and a charge was registered with in Singapore with ACRA in favour of EXIM in respect of CSTT's shares.

138 On 25 July 2016 Mr Qiu signed, in the name of CSTT, a 'Statement Containing Particulars of Charge to be Electronically Filed at ACRA and Authorisation of Such Filing' together with a letter to BDO Corporate Services Pte Ltd attaching the statement and authorising BDO Corporate Services Pte Ltd to file it on CSTT's behalf.

139 The parties agree that on 25 July 2016 Mr Qiu also signed a document on the CSTT letterhead in his capacity as 'duly appointed representative' of Ruyi consenting on behalf of Ruyi, the 'Holding Company beneficially entitled to the whole of the issued share capital of [CSTT]' to the convening of the Extraordinary General Meeting of CSTT 'notwithstanding that less than the prescribed notice has been given'. On the same day, Mr Qiu signed a 'Notice of Resolution' of CSTT recording amendments to the CSTT Constitution. Mr Qiu also signed a 'Copy of Minute by Representative of Holding Company Relating to Proceedings of Subsidiary Company', as director of Ruyi, regarding the amendments to the CSTT Constitution. Copies of these documents were discovered by both parties.

140 The parties agree that on 25 July 2016 EXIM and CSTT entered into the 2016 Security Agreement**.** The 2016 Security Agreement is between EXIM as Lender and, CSTT as Grantor. It was signed for CSTT by Ms Gu as 'Authorised Representative' and below her signature were the (handwritten) words 'Executive Director' in the space provided for the title of the person signing the document. At no time has Ms Gu been an executive director, or for that matter, a director of CSTT. A copy of the 2016 Security Agreement was discovered by both parties.

141 A copy of the CSTT company registration downloaded on 25 July 2016 from the Singaporean Corporate Regulatory Authority ('ACRA') database formed part of the evidence. It was Mr Chen's evidence that **'**it should have been [downloaded by] the lawyer of our side or the staff member of CSTT'.[13] The extract does not refer to Ms Gu as a director of the company.

142 The CSTT Constitution was available on the ACRA database on 25 July 2016. Article 105 of the CSTT Constitution which makes provision for the signing of documents by application of the company seal is in the following terms:

The Directors shall provide for the safe custody of the seal, which shall only be used by the authority of the Directors or of a committee of the Directors authorised by the Directors in that behalf and every instrument to which the seal is affixed shall be signed by a Director and shall be countersigned by the Secretary or by a second Director or by some other person appointed by the Directors for the purpose. Where the Company has only one Director, the instrument to which the seal is affixed shall be signed solely by the sole Director. The Company may exercise all the powers conferred by the Act to have an official seal for use abroad.

143 The 2016 Security Agreement was not signed and sealed by EXIM as provided in clause 105 of the constitution.

144 On 25 July 2016 Mr Qiu signed a document on CSTT letterhead entitled 'Directors' Resolutions in Writing Pursuant to the Company's Constitution' with the subtitle 'Receipt of Notice of Creation of Share Charge'. This document is described in EXIM's written submissions and accompanying aide memoire as the 'Gu delegation'. The document included provision for Mr Lim to sign. Mr Lim did not sign the document, a copy of which was provided on discovery by both parties.

145 The English translation of the 'Gu delegation' is in the following terms:

A. WHEREAS:

1. Shandong Ruyi Science & Technology Group Co. Ltd. (as Chargor) had entered into a charge of shares dated July 25th, 2016 (Share Charge) with the Export‑Import Bank of China, a bank incorporated under the laws of the People's Republic of China and acting through its Qingdao branch (as Lender).

2. Under the terms of the Share Charge, the Chargor irrevocably and unconditionally mortgage, charge, assign and pledge to and in favour of the Lender all the Charged Shares (as defined in the Share Charge) by way of a first fixed charge and as a continuing security for the repayment and satisfaction on demand of all the Secured Obligations (as defined in the Share Charge).

3. The directors of the Company had received a notice of creation of charge (Notice of Charge) dated July 25th, 2016 from Shandong Ruyi Science & Technology Group Co. Ltd.

4. Copies of the Share Charge and the Notice of Charge (collectively, the Documents) are annexed hereto.

5. The directors of the Company have considered the Documents annexed hereto.

6. The directors of the Company, by their signatures on these Resolutions, confirm that they have disclosed all their interests (if any), in the subject matter of these Resolutions.

B. IT WAS RESOLVED THAT:

1. The receipt by the Company of the Notice of Charge be and is hereby acknowledged and any director of the Company be authorised to give to the Lender the form acknowledgement in the form set out in the Notice of Charge.

2. Any one Director of Ms Gu Fengmei be authorised to sign the Security Agreement‑Shares between the Company and the Lender and all relevant documents thereto for and on behalf of the Company.

3. Any one Director or Ms Gu Fengmei be authorised in his/her absolute discretion to approve any amendment, alteration or modification to the documents and that the signing or sealing thereof or of a copy thereof by conclusive evidence of such approval.

4. Necessary assistance and cooperation shall be made with the execution proceedings upon an enforcement of the security under the Share Charge by the Lender.

(emphasis added)

146 The Gu delegation is critical concerning the authority of Ms Gu to sign documents that bind CSTT. EXIM placed particular reliance upon director's resolution 2 in the paragraph above concerning the authorisation of Ms Gu. In this resolution the reference to the 'Security Agreement‑Shares' is a reference to the 2016 Security Agreement.

147 Also on around 25 July 2016 Mr Qiu certified, and signed, another document on CSTT letterhead addressed to EXIM as Lender and copied to Ruyi as Chargor, titled 'Certified Extract of Directors' Resolutions in Writing dated 25 July 2016'. This document did not include provision for Mr Lim or any person other than Mr Qiu to sign on behalf of CSTT. In this document Mr Qiu certified that the following resolutions were 'duly passed by the Directors of the Company and duly recorded in the Minute Book and are in accordance with the Constitution of the Company':

1. The receipt by the Company of the Notice of Charge be and is hereby acknowledged and any director of the Company be authorised to give to the Lender the form of acknowledgement in the form set out in the Notice of Charge.
2. Necessary assistance and cooperation agreed upon by the parties in execution proceedings, upon an enforcement of the security under the Share Charge by the Lender.

148 The Gu delegation signed only by Mr Qiu and not also by Mr Lim records four resolutions. Resolutions 1 and 4 of the Gu delegation correspond to and are in the same terms as resolutions 1 and 2 in the 'Certified Extract of Directors' Resolutions in Writing dated 25 July 2016' certified by Mr Qiu. Resolutions 2 and 3 in the Gu delegation, which do not appear in the 'Certified Extract of Directors' Resolutions in Writing dated 25 July 2016', are the resolutions that concern the authority of Ms Gu.

149 Objectively, it is a little strange that on the same day that Mr Qiu signed the Gu delegation which recorded that CSTT had made four resolutions (including those authorising Ms Gu to sign documents), he also 'certified' another document that made reference to only two of those four resolutions and made no reference to authorising Ms Gu to do anything. There is no 'certification' by Mr Qiu of the resolutions concerning the delegation of authority to Ms Gu. EXIM advanced no explanation or reason why the 'certified extract', which objectively might be expected to record all resolutions made on 26 July 2016 only recorded half of the resolutions recorded in the Gu delegation. No email messages, WeChat communications or other documents were produced at trial by either party that might explain the difference between the record of resolutions in the two documents.

150 On 26 July 2016 EXIM registered a security interest over the shares held by CSTT in CSA on the PPSR.

151 It is convenient at this point to refer to some of the terms of the 2016 Security Agreement.

152 The 2016 Security Agreement is governed by Victorian Law being both the law of the forum and the governing law specified in clause 9.8(a). Clause 9.1 provides that the agreement 'may only be varied or replaced by a deed executed by the parties'.

153 The definitions in clause 1 include the following definition of 'Authorised Officer':

the Grantor, any director, any company secretary or any person from time to time nominated as an Authorised Officer by the Grantor by a notice to the lender accompanied by certified copies of signatures of all new persons so appointed (and in respect of which the lender has not received notice of revocation of the appointment); ...

154 Clause 2 is in the following terms (including definitions or extracts therefrom where relevant):

2.1. Creation

CSTT grants a security interest [a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement, notice or arrangement having a similar effect, including any 'security interest' is defined in sections 12(1) or (2) of the PPS Act] in the Secured Property [All the Grantor's present and future interest in: (a) any other shares in the capital of the Issuer now or in the future beneficially owned by the Grantor; (b) any proceeds, money, dividends, distributions, return of capital, marketable securities or other property whatsoever now or in the future payable or otherwise distributable in respect of the Mortgaged Shares, the Mortgaged Rights or the Mortgaged Contracts] (where applicable, as beneficial owner of the Secured Property) to EXIM to secure the payment of the Secured Money [(a) all the money which the Obliger (whether alone or with another person) is or may become actually or contingently liable to pay to or for the account of the Lender (whether alone or with another person) for any reason whatsoever under or in relation to a Finance Document. (b) It includes money by way of the principal, interest, fees, costs, indemnities, charges, duties or expenses or payment of liquidated or unliquidated damages for which the Obligor is or at any time may become so liable, or as a result of a breach of or default under any obligation of the Obligor to the Lender under or in relation to a Finance Document].

2.2 Nature of Security Interest

This document constitutes a mortgage over the Secured Property.

155 In accordance with clause 2, the effect of the 2016 Security Agreement, if binding on CSTT, was to grant EXIM a 'Security Interest' in the nature of a mortgage over its 80% shareholding in CSA as security for Ruyi's obligations under the loan facility agreement.

156 Whatever communications may have taken place between EXIM on the one hand and any or all of Ruyi, CSTT or CSA on the other between the end of July 2016 and 2019, were not the subject of evidence or submissions at trial.

157 In 2019, CSTT and CSA executed the 2019 Deed of Amendment amending the CSA Loan Agreement between them. The 2019 Deed of Amendment was executed as a deed for CSTT by Mr Qiu and by Ms Qiu, both as directors.

158 While the 2019 Deed of Amendment does not bear a date of execution other than 2019, the solicitors internal reference in the bottom left 'footer' of the document, suggests it was prepared on 4 October 2019. Only CSTT discovered a copy of this document.

159 On 25 February 2020, 33 creditors of Ruyi attended the first creditors meeting in Shandong. The minutes of the meeting record that a Provincial Banking Creditors Committee ('Creditors Committee') would be set up with 10 standing committee members ('Standing Creditors Committee') including EXIM and that the Shandong Branch of the Industrial and Commercial Bank of China ('ICBC') would chair that committee. The minutes record that Mr Qiu, chairman of the Board of Directors of Ruyi Group reported on the operation of the Ruyi Group and on 'the risk resolution measures'.

160 In February 2020, Ruyi's banking creditors, including EXIM, entered into the written Creditors Agreement. The Creditors Agreement included provision for the establishment and operation of the Creditors Committee chaired by ICBC, including a Standing Creditors Committee.

161 On 20 March 2020, EXIM, Ruyi, CSTT, Mr Qiu and certain other parties entered into the 2020 Extension Agreement. The 2020 Extension Agreement included recitals in which the loan facility agreement of 21 January 2013 was defined as the 'Master Contract'. Other recitals state that Party B [defined as EXIM] and Party F [defined as Mr Qiu] signed 'Mortgage Contract 4', Party B [defined as EXIM] and Party F [defined as Mr Qiu] signed 'Guarantee Contract 2' and Party B [defined as EXIM] and Party I [defined as CSTT] signed Equity Pledge Contract referred to as 'Pledge Contract 2'.

162 The 2020 Extension Agreement records that Ruyi has submitted an application for extending the loan under the 'Master Contract' (being the loan facility agreement). One effect of the 2020 Extension Agreement was to extend the payment dates for instalments of the principal payable under the loan facility agreement ('Extended Loan'). Under the 2020 Extension Agreement, Ruyi is obliged to repay all of what is referred to as the 'Extension Payment' (being the extension part of the loan under the loan facility agreement of $21,400,000) in full and on time according to the adjusted repayment plan and to pay interest and other payables on time. The 2020 Extension Agreement states that Party A (Ruyi), Party C (Shandong Ruyi Real Estate Co., Ltd.), Party D (Shandong Ruyi Wool Textile Group Co., Ltd.), Party E (Wenshang Ruyi Technology Textile Co., Ltd.) Party F (Mr Qiu), Party G (Bai Wenhui), Party H (Xin Liang), Party I (CSTT) and Party J (Chongqing Three Gorges Technology Textile Co., Ltd.) shall guarantee the performance of Party A's (Ruyi's) debt under the 'Master Contract'.

163 Article 10 of the 2020 Extension Agreement states that the agreement shall come into effect on the date when it is signed and sealed by the parties and article 11 states that the agreement may be signed in parts. On the signing page, Mr Qiu affixed his signature and a fingerprint in his capacity as Party F (Mr Qiu himself). Mr Qiu also affixed his signature as Party A (Ruyi), Party C (Shandong Ruyi Real Estate Co., Ltd.) and as Party I (CSTT) with the description, common to all of the signing clauses except that applicable to EXIM, 'Legal Representative or Authorised Signatory'.

164 On 20 November 2020, EXIM, Ruyi, CSTT, Mr Qiu and certain other parties entered into Supplementary Agreement 1. Supplementary Agreement 1 adjusted the interest payment plan in respect of the Extended Loan.

165 Article 9 of Supplementary Agreement 1 states that the agreement shall come into effect on the date when it is signed and sealed by the parties and article 10 states that the agreement may be signed in parts. Mr Qiu affixed his signature for Party I (CSTT).

166 On 15 December 2020, EXIM attended a meeting of the Standing Creditors Committee.

167 On 26 March 2021, EXIM attended the second Creditors Committee meeting of Ruyi. Mr Qiu, as Chairman of the Board of Directors of the Ruyi Group, and Wang Yan, Executive President of Ruyi Group, also attended and addressed the meeting. The minutes of the meeting record as an agreed matter that 'members of the Creditors Committee act in concert'. Further agreed matters include that 'the government shall play a leading role'.

168 Both the minutes of the December 2020 Standing Creditors Committee Meeting, and the minutes of the second creditors meeting include a 'set default clause'. The minutes of the second Creditors Committee Meeting record the 'set default clause' as follows:

The promotion of Ruyi Group's risk resolution plan is based on the premise that Ruyi Group will not harm the interests of creditors, repay interest on time and actively cooperate with creditor institutions in continuing business. If Ruyi Group fails to complete the interest repayment work as promised or the financing of subsequent members of the Creditors Committee defaults, the members of the Creditors Commitment may no longer implement the risk mitigation plan.

169 On 19 May 2021, EXIM, Ruyi, CSTT, Mr Qiu and certain other parties entered into Supplementary Agreement 2. Supplementary Agreement 2 adjusted the interest payment plan in respect of the Extended Loan. As is the case concerning Supplementary Agreement 1, Mr Qiu affixed his signature for Party I (CSTT).

170 On 21 December 2021, Ruyi failed to pay interest due to be paid to EXIM. From this point, Ruyi failed to fulfil its repayment obligations under the loan facility agreement as amended by the 2020/2021 Agreements.

171 On 13 January 2022, EXIM sent Ruyi a letter of demand requesting that it remedy its failure to pay moneys due.

172 On 8 June 2022, Mr Qiu ceased to be a director of CSA and Xiao Su was appointed as director.

173 On 1 August 2022, EXIM initiated an arbitration against Ruyi before the China International Economic and Trade Arbitration Commission ('CIETAC') in relation to the loan made under the loan facility agreement and the charge registered in respect of Ruyi's shares in CSTT.

174 On 9 September 2022, EXIM issued its first letter of demand for payment to CSTT.

175 On 1 December 2022, EXIM issued its second letter of demand for payment to CSTT.

176 On 19 December 2022, EXIM issued this proceeding.

177 On 1 June 2023, CIETAC issued a partial arbitral award finding that the Share Charge Agreement validly pledged all equity in CSTT held by Ruyi in favour of EXIM, and that EXIM was legally entitled to sell all the shares in CSTT and receive priority repayment for its loan from the proceeds.

H. Was there the Facility Agreement as alleged?

178 I find that contrary to the EXIM case pleaded and particularised in the ASOC, that there was no Facility Agreement that was partly in writing and partly oral.

179 The Facility Agreement as pleaded fails for three key reasons.

180 The first reason, because CSTT is not a party to the loan facility agreement. Not only is CSTT not a party, the loan facility agreement makes no reference to CSTT.

181 The second reason is because there was no Facility Agreement that was partly in writing that included the Ruyi Letter of Undertaking and CSTT Letter of Undertaking as alleged.

182 The 21 January 2013 loan facility agreement is comprised of the agreement and its annexures and nothing else. It is a standalone agreement between the parties to it, EXIM and Ruyi. The parties named in article 32 provided security in support of the loan facility agreement. CSTT is not a signatory nor is it named as the provider of security pursuant to or in support of the loan facility agreement.

183 The loan facility agreement is a sophisticated and comprehensive commercial loan agreement comprising 15 chapters, the English translation of which is more than 30 pages together with annexures which are expressly stated by article 45 of the loan facility agreement to 'constitute integral parts of this Agreement, and shall have the equal legal force and effect as this Agreement'.

184 The Ruyi Letter of Undertaking and CSTT Letter of Undertaking alleged by EXIM to constitute the Facility Agreement in the particulars to paragraph 7 of the ASOC are not annexures to the loan facility agreement. It follows from clause 45 of the loan facility agreement that because the CSTT Letter of Understanding is not annexed to and does not form part of the loan facility agreement that the alleged terms of the Facility Agreement that EXIM pleads and seeks to rely upon drawn from the Letters of Undertaking are not part of any such agreement.

185 To the extent EXIM seeks to rely on implied terms in the loan facility agreement, applying BP Refinery (Westernport) Pty Ltd v Shire of Hastings[14] there is no proper basis to imply terms involving the provision of security by CSTT. That is because:

(a) it cannot be said that the parties to the agreement did not turn their minds to the question of security. By chapter 9 and article 32 of the loan facility agreement, the parties to the agreement clearly did so; and

(b) the implied terms are not so obvious that they go without saying. There is no textual indication in the loan facility agreement to suggest that CSTT would pledge its equity in CSA, in the context of the agreement.

186 The third reason, the Facility Agreement as pleaded is not made out is because although the particulars allege an agreement that is partly oral, there was no evidence whatsoever led by EXIM in an attempt to prove that 'representatives of EXIM and representatives of Ruyi and CSTT ... confirmed and agreed that EXIM would not enter into the Facility Agreement or provide the Loan unless CSTT provided security by way of a mortgage of its shares in CSA and entered into the Security Agreement'.

I. Was there the CSTT Undertaking Agreement as alleged?

187 Although a cause of action pleaded by EXIM as an alternative to its primary claim, because the alleged CSTT Undertaking Agreement is an agreement that is alleged to have been made prior in time to the 2016 Security Agreement it is convenient to first consider that cause of action.

188 The 'CSTT Undertaking Agreement' alleges that on or about 21 January 2013, in consideration for EXIM agreeing to enter into the Facility Agreement and providing the loan to Ruyi for the purchase of the property by CSA, CSTT agreed to and entered into a contract with EXIM to:

(a) pledge (mortgage/charge) to EXIM its 80% shareholding in CSA as collateral for the Loan, and, if that pledge (mortgage/charge) could not be made, that CSTT would not pledge (mortgage/charge) those shares to others until the Loan to EXIM was repaid; and

(b) prioritise repaying the Loan with the funds obtained from reducing its shares in CSA from 80% to 51% or otherwise pledging (mortgaging/charging) the shares acquired by way of exchange to EXIM.

189 The particulars of the CSTT Undertaking Agreement assert that the terms of the CSTT Undertaking Agreement are reflected in the offer to EXIM in the CSTT Letter of Undertaking dated 18 January 2013. EXIM alleges that on about 21 January 2013, in reliance upon the CSTT Undertaking Agreement, EXIM entered into the Facility Agreement and subsequently provided the Loan to Ruyi.

190 The CSTT Letter of Undertaking signed by Mr Qiu and the CSTT Board Resolution dated 18 January 2013, signed by Mr Qiu and Mr Lim, copies of which were discovered by both parties to the proceeding, were relied on by EXIM to seek to establish that in January 2013, among other things, CSTT's board of directors both authorised a pledge of CSTT's shares in CSA and pledged those shares.

191 EXIM submitted it was a condition of the loan, to be inferred from what occurred on 18 January 2013 and from the provision of copies of the documents to EXIM on which it relies, including the CSTT Board Resolution, that all of the 'safeguard measures' referred to in the 24 December 2012 Credit Approval Committee minutes of meeting would be completed.

192 On about 18 January 2013 Ruyi, CSTT and CSA each provided EXIM with board resolutions and letters to meet the conditions set by EXIM for the Ruyi loan approval. CSTT provided or caused it to be provided with the CSTT Letter of Undertaking, along with a copy of the CSTT Board Resolution. EXIM noted that CSTT admits that its board passed the CSTT Board Resolution, but disputes that the CSTT Letter of Undertaking was provided on its behalf.

193 EXIM relied on the signed board resolutions and accompanying letters signed by Mr Qiu, a director common to all three entities at the time.

194 Based on the CSTT Letter of Undertaking EXIM's case is that in return for EXIM extending the Loan to Ruyi, CSTT promised to be immediately bound by a negative covenant not to pledge 80% of the shares in CSA 'to others' until it could perform the positive covenant of pledging its shares in CSA to EXIM. EXIM relied on the 'offer' in paragraph 1 of the CSTT Letter of Undertaking which EXIM accepted by entering into the loan with Ruyi and advancing the funds. EXIM submitted that upon it extending the loan to Ruyi, the parties became immediately bound by the CSTT Undertaking Agreement which included those dual terms.

195 EXIM submitted that a critical distinction is to be drawn between guarantees which were agreed upon and provided at the time the loan was advanced on 21 January 2013 and the safeguard measures that were to follow due to the tight timing.

196 EXIM submitted the approval given in the CSTT Board Resolution, signed by both directors of CSTT, is not expressed conditionally but contingently. That is, the resolution unconditionally and immediately approves the pledge of CSTT's 80% shareholding in CSA as collateral for the Loan. It makes the performance of that obligation to pledge contingent on CSTT first being permitted to perform it. But, in the meantime, it immediately binds CSTT to an obligation that it will not pledge its shares in CSA until the loan is repaid to EXIM.

197 EXIM submitted the objective intention of the parties to be immediately bound is manifest in the terms and subject matter of the agreement, the relationship between them and the surrounding circumstances leading up to the loan.

198 Once FIRB had cleared the way in September 2015, the obligation on CSTT to pledge its shares in CSA under the CSTT Undertaking Agreement was enlivened. Under the PPSA, a pledge is a recognised security interest.[15] EXIM perfected its security interest by registering it on the PPSR on 26 July 2016.

199 EXIM submitted that given Ruyi's default on the Loan, in the event that the 2016 Security Agreement is not binding, the Court should find that EXIM is entitled to the enforcement of that interest in accordance with the PPSA by reason of the CSTT Undertaking Agreement.

200 CSTT submitted the Court should place limited weight on the EXIM Pre‑Approval Report except insofar as it contains admissions made by EXIM. The EXIM Pre‑Approval Report does not comprise a body of facts known to both parties, it contains only the subjective opinions and wishes of EXIM which EXIM did not share with CSTT until it was discovered in the proceeding.

201 CSTT notes that the 18 January 2013 CSTT Board Resolution is the only document in evidence, which EXIM says is a CSTT document, that has been duly signed by two directors of CSTT. However, CSTT submits the resolution does not assist EXIM for the following reasons.

(a) First, the resolution is an internal resolution of CSTT only. It does not constitute a promise or warranty given by CSTT to EXIM.

(b) Second, like the Letters of Undertaking, the board resolution pre‑dates the loan facility agreement which superseded whatever the parties intentions may have been.

(c) Third, the resolution is uncertain in its terms as it refers to a reduction in shareholdings in CSA and does not refer to any mortgage over those shares.

(d) Finally, the resolution did not authorise any person, whether that be Mr Qiu or Ms Gu, to sign any document on behalf of CSTT outside the requirements of the CSTT Constitution.

202 Concerning the CSTT Letter of Undertaking CSTT submitted:

(a) First, that the CSTT Letter of Undertaking was signed by Mr Qiu only.

(b) Second, EXIM produced no evidence that Mr Qiu was authorised by CSTT to provide the CSTT Letter of Undertaking.

(c) Third, EXIM did not articulate how CSTT represented Mr Qiu to have authority to sign the CSTT Letter of Undertaking on behalf of CSTT. In the premises, absent the application of the indoor management rule or any act of ratification (neither of which apply here), the Court should find the CSTT Letter of Undertaking is not a document of CSTT.

(d) Fourth, the CSTT Letter of Undertaking is unclear as to what exactly is being pledged. Paragraph 3 makes a confusing reference to CSTT reducing its shareholding in CSA from 80% to 51%, whereas EXIM's claim is that it is entitled to enforce a mortgage over CSTT's 80% shareholding.

(e) Fifth, it is clear from the chapeau of the letter that it was signed by Mr Qiu in aid of the loan application. Whatever CSTT's subjective intent and wish may have been at the time, those intentions were superseded by and merged into the loan facility agreement itself, which did not provide for any security to be given by CSTT.

203 CSTT submitted that while the Ruyi Letter of Undertaking cannot of itself bind CSTT, the Ruyi Letter of Undertaking supports CSTT's case.

204 The CSTT Undertaking Agreement is not pleaded as a conventional contract constituted by an offer and acceptance of that offer resulting in a binding contract. Instead, EXIM alleges a binding agreement constituted by the CSTT Letter of Undertaking and reliance on that letter by EXIM.

205 The unchallenged evidence of Mr Chen is that CSTT provided copies of the CSTT Letter of Undertaking and the CSTT Board Resolution to EXIM on 18 January 2013. Assuming the provision of those documents was authorised by and bound CSTT, to succeed in its CSTT Undertaking Agreement case, EXIM needs to prove that it entered into the Facility Agreement and advanced the US $74,800,000 loan in reliance on those documents.

206 EXIM has failed to prove its reliance case. The failure by EXIM to prove reliance is fatal to the existence of the alleged CSTT Undertaking Agreement.

207 EXIM led no oral evidence in support of its reliance case.

208 The contemporaneous documents do not provide support for a finding of reliance. Put simply no link is demonstrated between the CSTT Letter of Undertaking and the CSTT Board Resolution and the advance of loan funds by EXIM to Ruyi. The documents and the objective facts point in the opposite direction, the 'no reliance' direction.

209 There is no document that records or evidences a communication from EXIM to Ruyi or to CSTT that, for example, confirms receipt by EXIM of the CSTT Letter of Undertaking on 18 January 2013 and states that having received the undertaking EXIM would now proceed to enter into loan facility agreement with Ruyi dated 21 January 2013, a comprehensive and sophisticated agreement of the sort that might be expected in the case of a loan for US $74,800,000, but which does not even mention CSTT.

210 The existence and terms of the loan facility agreement between EXIM and Ruyi to which CSTT is not a party are inconsistent with the reliance pleaded as a critical element of the alleged CSTT Undertaking Agreement:

(a) first, the loan facility agreement makes no reference to the CSTT Letter of Undertaking or to the CSTT Board Resolution;.

(b) second, article 32 of the loan facility agreement specifies the security to be provided in support of the loan. Article 32 says nothing about the provision of security by CSTT. It does not include a negative covenant by CSTT not to pledge 80% of the shares in CSA 'to any other person or a requirement that CSTT will provide security in the future as EXIM submits paragraph 1 of the CSTT Letter of Undertaking promised to provide. No other article in the loan facility agreement makes reference to the future provision of security;

(c) third, article 45 of the loan facility agreement is in the nature of an entire agreement clause. The alleged existence of the CSTT Undertaking Agreement is inconsistent with that article; and

(d) fourth, article 38 of the loan facility agreement provides that any amendments 'or supplement to any provision of this Agreement shall be made in writing and shall come into effect once signed and sealed by the Borrower (Ruyi) and the Lender (EXIM)'. It is not part of CSTT's case to allege that Ruyi and EXIM entered into an agreement 'signed and sealed' by both concerning or incorporating the alleged CSTT Undertaking Agreement.

211 While in opening EXIM submitted it would rely on the EXIM Pre‑Approval Report and on the minutes of the 24 December 2012 meeting of the Credit Approval Committee to contend the pledge of CSTT's 80% shareholding in CSA was one of the conditions set by EXIM for approving the loan to Ruyi and entering into the loan facility agreement, there are a number of problems with the attempted reliance by EXIM on these documents to prove the contract alleged:

(a) first, both documents are internal to EXIM. There is no evidence they were provided to CSTT or that CSTT was aware of them at the time. It would be inconsistent with the objective theory of contract to permit EXIM to rely upon these internal documents in the manner proposed;[16]

(b) second, there is no letter of offer and no communication from EXIM to CSTT that embodies the conditions of loan to be satisfied by CSTT pursuant to the CSTT Undertaking Agreement as alleged. There is no evidence that CSTT was told about those conditions, including the 'safeguard measures' referred to in the minutes of the Credit Approval Committee meeting and that such conditions were a condition of the loan;

(c) third, if it were permissible to have regard to EXIM's internal documents in order to determine the existence and content of the contract alleged, which it is not, the two documents are inconsistent with one another. The EXIM Pre‑Approval Report, albeit earlier in time than the Credit Approval Committee meeting minutes, relevant parts of which are reproduced above, recommended 'that this form of guarantee [CS equity pledge] is not a condition for lending';

(d) the Credit Approval Committee meeting minutes distinguish between 'guarantee measures' of which security from CSTT was not one and later 'safeguard measures' including promises and pledges relating to CSTT's shares in CSA. While the promises and pledges regarding CSTT's shares in CSA are described as 'safeguard measures' and the minutes record such promises and pledges as part of the 'loan conditions' to 'complete all of the above safeguard measures', there is a critical gap in the evidence. There is no loan offer or similar document that shows that CSTT was told there were any such 'loan conditions' including conditions concerning the promises and pledges relating to CSTT's shares in CSA and that unless it provided the CSTT Letter of Undertaking, the loan would not be made; and

(e) no witness was called by EXIM to explain and there is no document that explains what occurred between the date of the meeting of the Credit Approval Committee on 24 December 2012 and the execution of the loan facility agreement on 21 January 2013.

212 For the reasons discussed I am not satisfied that EXIM has discharged its onus of proving that it entered into the Facility Agreement or the loan facility agreement in reliance on or in consideration of the CSTT Letter of Undertaking. I am not satisfied that there was the CSTT Undertaking Agreement as alleged.

213 If I am wrong in those findings and the CSTT Undertaking Agreement as alleged is otherwise made out, I am not satisfied that CSTT is bound to any such agreement. That is so because, for the reasons discussed in section L of this judgment concerning authority, I do not accept that the CSTT Letter of Undertaking, signed by Mr Qiu only, was effective to contractually bind CSTT.

214 The same documents dated 18 January 2013 relied on by EXIM to found the CSTT Undertaking case are relied on to found its estoppel case against CSTT.

215 EXIM submitted the clear and unequivocal representations and promises, contained within the CSTT Letter of Undertaking and the accompanying CSTT Board Resolution estop CSTT from departing from the pledge of its CSA shares.

216 The CSTT Letter of Undertaking contained two interrelated representations: one regarding the promise to pledge being made by CSTT, and the other being that the CSTT directors had in fact authorised that promise to pledge. Those representations were 'clear and unequivocal'. The first is contained in paragraph 1 of the CSTT Letter of Undertaking signed by Mr Qiu. The second is contained in paragraph 1 of the CSTT Board Resolution signed by both directors of CSTT, which accompanied the CSTT Letter of Undertaking.

217 EXIM submitted there can be no doubt that CSTT intended EXIM to rely upon these representations. CSTT sought to benefit from a US $74,800,000 loan being provided to its parent company which would fund the purchase of a AUD $230,000,000 million property by an entity in which it had an 80% interest. It even channelled that loan to CSA via the CSA Loan Agreement. There is no other reasonable explanation why the CSTT Letter of Undertaking letter and CSTT Board Resolution exist.

218 EXIM submitted there can be no doubt that EXIM relied on those representations, they made 'a difference to [EXIM] taking the course of action' EXIM did so, in providing the loan to Ruyi and entering into the Facility Agreement on 21 January 2013.

219 Had those representations not been made, EXIM would not have extended the Loan without its approval conditions being satisfied. The Credit Approval Committee made it a condition of the Loan approval that this written pledge be provided. The EXIM Pre‑Approval Report speaks to 'repeated negotiation and communication with Ruyi Group' in trying to find a 'reasonable guarantee plan' in light of the 'limited time' and the limitations placed by FIRB on using the Cubbie Property as collateral for the Loan.

220 EXIM submitted that it was meticulous in its assessment of the loan application. It was deeply motivated by assessing and mitigating its risks. It understood the textile industry was not always successful, and therefore investment with Ruyi carried risks. However, EXIM recognised that the loan application was time critical, such that it proposed to depart from its usual conditions for lending in return for a careful proposal of 'additional guarantees and safeguards' that included these written undertakings. This was a bank to whom these representations clearly carried significant weight, and upon which they relied in extending the Loan to Ruyi.

221 EXIM submitted that it would suffer a clear detriment if CSTT were allowed to depart from its representations by not honouring its pledge. EXIM submitted that for over 11 years it proceeded on the basis that a pledge had been made by CSTT, and that it had been authorised by the CSTT Board. Control over the CSA shares is EXIM's only hope of seeing where its money went.

222 EXIM submitted the Court should find that CSTT is estopped from denying that it has pledged its shares in CSA as collateral for the loan and should hold CSTT to its promise.

223 In response to the EXIM Estoppel Case CSTT submitted:

(a) no clear or unequivocal promise is contained in the CSTT Letter of Undertaking or the CSTT Board Resolution;

(b) Mr Qiu was not in any event authorised to sign the CSTT Letter of Undertaking on behalf of CSTT;

(c) more fundamentally, EXIM did not rely on any promise said to be contained in the CSTT Letter of Undertaking or the CSTT Board Resolution, because it expressly recommended in the EXIM Pre‑Approval Report that an equity pledge was 'not a condition for lending'; and

(d) further, there can be no detriment because the CSTT Letter of Undertaking did not promise the giving of a 'mortgage' which the 2016 Security Agreement purports to grant to EXIM under clause 2.2 of that agreement. At most, the CSTT Letter of Undertaking was a commitment to make a pledge in the future. It was not itself a pledge. Further, a pledge is not in any event the same as a mortgage. There is a disconformity in the language between the alleged promise and the thing which EXIM now seeks to preclude CSTT from resiling from.

224 The elements required to establish an estoppel were recently re‑stated by the High Court in Kramer v Stone:[17]

(a) there must be a 'clear and unequivocal promise' made by the party estopped (the 'promisor') to the party who relies upon the promise (the 'promisee');

(b) a reasonable person in the promisor's position must have expected or intended (or the promisor actually did expect or intend) that the promisee would rely upon the promise by some action, omission or course of conduct;

(c) the promisee must have relied upon the promise by acting or omitting to act in the general manner that would have been expected. In this sense, reliance is usually established by the promisee showing that the promise 'made a difference to [the promisee] taking the course of action or inaction' that it did;

(d) the consequence of the promisee's reliance must be that the promisee will suffer detriment if the promise is not fulfilled, in the sense that the promisee will be left in a worse position, as a consequence of reliance upon the promise, than if the promise had not been made.

225 The EXIM Estoppel Case alleges two separate representations, both made on 18 January 2013 and both particularised as being contained in the CSTT Letter of Undertaking and the CSTT Board Resolution.

226 The first representation alleged, the 'Authorisation Representation', is that on 18 January 2013, CSTT represented to EXIM that in support of the loan application made by Ruyi and upon any loan made thereunder, its board had approved and thereby authorised:

1. i. a pledge (mortgage/charge) to EXIM of its 80% shareholding in CSA as collateral for the loan, and if that pledge (mortgage/charge) could not be made, an agreement that CSTT would not pledge (mortgage/charge) those shares to others until the loan had been repaid to EXIM;
2. an agreement to prioritise repaying the Loan with the funds obtained from reducing its shares in CSA from 80% to 51% or otherwise pledge (mortgage/charge) the shares acquired by way of exchange to EXIM,

227 The second representation alleged, the 'Pledge Representation', is that CSTT represented to EXIM that, in support of the loan application made by Ruyi and upon any loan being made thereunder it made the same pledge as referred to in (i) above and it made the same agreement and promise alleged in (ii) above.

228 In its reply EXIM alleges it relied upon the Authorisation Representation and further or in the alternative it relied on the Pledge Representation in entering into the Facility Agreement and in providing the loan to Ruyi.

229 The first reason the EXIM Estoppel Case fails is because the pleaded case alleges the act of reliance by EXIM was the entry by EXIM 'into the Facility Agreement and provided the Loan to Ruyi'. The pleaded case fails because it relies on the existence of the Facility Agreement which I have found did not exist.

230 Assuming the reference in the pleading is read as a reference to the loan facility agreement, and assuming that both the Authorisation Representation and the Pledge Representation as alleged were made, the EXIM estoppel claim fails because EXIM has not proved reliance on either or both of the Pledge Representation or the Authorisation Representation in entering into the loan facility agreement or in providing the loan to Ruyi.

231 To repeat what I have earlier said in the context of the alleged CSTT Undertaking Agreement, EXIM called no witness to give evidence that it had relied on either representation. There is no document that shows reliance by EXIM on either of the pleaded representations.

232 As earlier discussed, the loan facility agreement makes no reference to either the CSTT Letter of Undertaking or to the CSTT Board Resolution. It does not contain conditions that reflect or are consistent with the subject matter of the representations alleged being the asserted agreement to pledge shareholding and to prioritise repayment of the loan from funds obtained from reducing CSTT shareholding in CSA from 80% to 51%.

233 It is not sufficient to simply assert, as did EXIM in its submissions, that 'there can be no doubt that CSTT relied on those representations'.[18] For EXIM to prove reliance, it is necessary for it to identify evidence of reliance. EXIM did not do so for the understandable reason that, as far as I can tell, there was no such evidence.

234 Not only was there no such evidence, the fact and terms of the loan facility agreement to which CSTT was not a party and which make no reference to the subject matter of the alleged representations are inconsistent with the proposition that EXIM relied on the representations alleged.

235 As the chronology shows, on the same day the loan facility agreement was signed, EXIM advanced the loan funds to Ruyi. There was one document and one advance. EXIM has not demonstrated that either that document or the advance was in any way related to the representations alleged to have been made by CSTT who was not a party to the loan facility agreement and who did not receive the loan funds.`

236 The primary claim by EXIM is that the 2016 Security Agreement grants EXIM a mortgage over CSTT's shares in CSA and rights, including to take possession and control of and/or sell those shares. In the event of default, clause 6.2 requires CSTT to discharge Ruyi's obligation to repay the loan.

237 EXIM submitted the 2016 Security Agreement gave fuller expression to the rights and obligations agreed upon by the parties in 2013, substituting the 2016 Security Agreement for the Letters of Undertaking.

238 CSTT submitted there are two separate reasons why the 2016 Security Agreement is not binding on CSTT:

(a) first, because EXIM provided no consideration for the security given by CSTT under the terms of the 2016 Security Agreement; and

(b) second, because the 2016 Security Agreement was signed by Ms Gu only. Ms Gu is not, and never has been, a director, secretary, or officer of CSTT. The Authorisation Letter did not confer authority on her to sign the 2016 Security Agreement. For this separate reason, the 2016 Security Agreement cannot be regarded as an agreement to which CSTT was a party.

239 CSTT submitted the loan amount was advanced by EXIM to Ruyi on 21 January 2013, pursuant to the terms of the loan facility agreement to which CSTT was not a party. CSTT was not mentioned by name in the loan facility agreement. The loan facility agreement does not refer to, and does not provide that CSTT would execute the 2016 Security Agreement. The 2016 Security Agreement was entered into more than three years later. It was not necessary for CSTT to enter into that agreement to secure the loan because, by that time, the loan had already been provided.

240 While the rule that past consideration is not good consideration[19] is subject to some limited exceptions, none of the exceptions apply to the 2016 Security Agreement. In particular the past consideration rule:

(a) will not apply where the promisor receives some practical benefit.[20] In this case CSTT received no practical benefit by entering into the 2016 Security Agreement; and

(b) may not apply where a suite of documents are entered into as part of a single transaction. As was made clear in McVeigh v National Australia Bank Ltd, a single transaction will only arise when two or more instruments are executed contemporaneously, or where a series of documents are executed on the faith of the other being executed and where each is intended to operate only as part of that transaction and therefore, as a matter of substance they are to be regarded together as one transaction.[21]

241 CSTT submitted the 2016 Security Agreement cannot be regarded as being part of the same transaction as the 2013 loan facility agreement:

(a) first, they are more than three years apart; and

(b) second, there is nothing in the terms of either agreement that states that one agreement was executed on the faith of the other being executed.

242 EXIM accepts that the onus of establishing consideration rests on the party asserting there is a contract. While consideration must move from the promisee, it need not move to the promisor. An act done earlier in time may be considered valuable executed consideration for a later promise. If some consideration is established, the Court will not inquire into its adequacy or inadequacy in determining whether a promise, undoubtedly made, was enforceable at law.[22]

243 EXIM submitted that where, by reason of their genesis, background, negotiation and terms, multiple agreements can in substance be viewed as part of a single transaction, courts are not bound to apply a strictly chronological test in assessing whether consideration moved from the promisee. The decision in McVeigh takes this principle no further.

244 EXIM submitted the 2016 Security Agreement was supported by valuable consideration provided by EXIM to CSTT, namely:

(a) EXIM entering the Facility Agreement on the faith of the promise of a future security from CSTT, among others;

(b) the parties' substitution of their rights under the CSTT Undertaking Agreement with those in the 2016 Security Agreement, along with additional mutual promises.

245 EXIM submitted the 2016 Security Agreement cannot be divorced from the primary transaction and that the effluxion of time between the execution of the loan facility agreement and the 2016 Security Agreement is explained by the EXIM Pre‑Approval Report. There was urgency to complete the Cubbie Station acquisition before steps could be taken to obtain the FIRB approval that was necessary to pledge the shares. That is why EXIM agreed to forgo 'this form of guarantee [as] ... a condition for lending' at that time, but instead insisted on written undertakings from CSTT, Ruyi and CSA with the execution of their promise to follow.

246 Once it was established that FIRB had no objection to the deal, the 2016 Security Agreement was brought into existence, taking account of the time it would take to facilitate a cross‑border agreement and execution. There was no reason to rush. CSTT had already offered an undertaking that it would not pledge its shares in CSA to anyone else until the loan was repaid.

247 When the 2016 Security Agreement is seen as part of the suite of multiple agreements together forming the one transaction, it is clear that consideration moved from EXIM to each of Ruyi, CSTT and CSA.

248 Upon purchase of Cubbie Station using the loan funds, Ruyi enjoyed owning shares in CSTT, which owned 80% of the shares in CSA, which was now in possession of a property of considerable value. CSTT and CSA thereby obtained the concomitant benefits. This alone rebuts the submission that CSTT derived no benefit from the 2016 Security Agreement on its face.

249 If the 2016 Security Agreement is to be regarded as a standalone agreement, divorced from the transaction which gave rise to it, then nonetheless, the 2016 Security Agreement is supported by valuable consideration. The 2016 Security Agreement represents the substitution of existing rights found in the CSTT Undertaking Agreement, with additional mutual promises including by way of example clause 4.1 of the 2016 Security Agreement which permits CSTT to grant third parties an encumbrance over the shares with EXIM's prior written consent. By contrast, the CSTT Undertaking simply prohibited CSTT from pledging its shares in CSA to anyone before the loan was fully repaid.

250 EXIM submitted that the mutual rights and obligations identified in the 2016 Security Agreement including those in clause 4.1 confer new contractual rights upon EXIM and CSTT which are additional to those in the CSTT Undertaking Agreement.

251 The 2016 Security Agreement is pleaded and particularised by EXIM in paragraph 11 of the ASOC on the basis the document itself, and nothing else, constitutes the 2016 Security Agreement.

252 Although not part of its pleaded case, to counter CSTT's past consideration argument, EXIM submitted the 2016 Security Agreement was part of a single larger transaction constituted by that agreement together with the 2013 Facility Agreement. Two agreements, three years apart, one transaction.

253 As I have found there was no Facility Agreement as alleged and because in closing submissions counsel for EXIM did not press that alleged agreement, it is necessary to consider the loan facility agreement executed in 2013 and the 2016 Security Agreement as comprising one transaction. For the reasons that follow, I do not consider the evidence, viewed in light of the authorities referred to, provide support for a finding that the two agreements or for that matter, the Facility Agreement as pleaded and the 2016 Security Agreement, are properly regarded as one transaction.

254 In McVeigh the bank's letter of offer involved the provision of banking facilities to a company supported by specified security including a guarantee and indemnity to be given by the directors and a registered mortgage over their home.[23] The appeal concerned the proper construction of the mortgage and the guarantee. The documents were signed within a few days of each other.[24] Finkelstein J noted the starting point for construction is to look at the language used in the instrument itself, to be construed in the light of the surrounding circumstances.[25] In some cases it is permissible to have regard to other instruments.[26] In particular, where several instruments are made as part of the one transaction they will be construed together and each will be construed with reference to the other.[27] His Honour continued:[28]

...

The rule applies whether the documents are executed contemporaneously or at different times: see Norton on Deeds 2nd ed (1928) at p 87‑89 and the cases there cited. The reason for the rule is that when a series of documents is necessary to give effect to a single transaction each is executed on the faith of the others being executed and each is intended to operate only as part of that transaction and therefore, as a matter of substance, they should be regarded as one: Manks v Whiteley [1912] UKLawRpCh 46; [1912] 1 Ch 735 at 754.

It seems that English law has only developed to the point where several instruments representing a single transaction may be read together if the documents are between the same parties: Smith v Chadwick, above, Chitty on Contracts 27th ed (1997) at para 12‑057. This is also the position that has been taken in Australia: see Halsbury's Laws of Australia Vol 10, 'Deeds & Other Instruments' para 140‑535(1) citing Smith v Chadwick.

This view is altogether too narrow. If accepted it would produce anomalous results ...

In the United States the general rule is that, absent a contrary intention, instruments executed at the same time, by the same parties and for the same transaction should be considered and construed together ...

There is no reason why this approach should not be followed in this country. It would avoid the anomalous results that I have described. It would more readily permit the court to ascertain the true intention of the contracting parties. It is consistent with the objectivist view of contract, namely that the intention of the parties should be gathered from what they say (write) and do and not what they think. It is not inconsistent with any ruling of the High Court.

255 In McVeigh Kenny J delivered separate reasons for judgment. Her Honour referred with approval to Lewison, in The Interpretation of Contracts, at para 2.03:[29]

A document executed contemporaneously with, or shortly after the primary document to be construed may be relied upon as an aid to construction, if it forms part of the same transaction as the primary document.

256 Kenny J went on to consider whether the rule applies only where the relevant transactional documents are executed by the same parties.[30] After referring to earlier authority, including Geelong Building Society v Encel,[31] Kenny J expressed her Honour's agreement with Finkelstein J that in construing the mortgage, it is appropriate to consider the whole of the arrangement that was in the contemplation of the parties - mortgagors and guarantors, the lender and the borrower:[32]

As Finkelstein J observes, the terms of the letter of offer and its attachment establish that the guarantee and the mortgage form part of the arrangement pursuant to which the Bank granted financial accommodation to PLA. Plainly enough, the Piccolos, though not formally parties to the financial accommodation agreement between the Bank and PLA were aware of its content. It was they who, in their capacity as PLA's directors, accepted the Bank's letter of offer.

257 The questions that arose for consideration in McVeigh and the factual circumstances in that case are quite different to those of the present case. This case does not just involve questions of construction of one document by reference to another. This case involves the fundamental question of the correct identification of what constitutes the transaction of which the document, in this case the 2016 Security Agreement, is said to form part.

258 Unlike the circumstances in McVeigh, in this case there is no letter of offer that specifies the security to be provided in exchange for the provision of the loan the subject of the facility agreement. There is no document is signed by the relevant parties, EXIM and CSTT in 2013, that says that security for the loan to Ruyi includes the 2016 Security Agreement entered into by CSTT three years after the loan facility agreement.

259 If it was to be a condition of the loan facility agreement executed in 2013 that CSTT directly or that Ruyi was to procure CSTT to enter into an agreement to provide security over the shares in CSA following FIRB approval, such a condition could have been included in the loan facility agreement and CSTT could have been made a party to that agreement. Those things did not happen.

260 The EXIM Pre‑Approval Report and the minutes of the Credit Approval Committee meeting on 24 December 2012 on which EXIM seeks to rely in support of its 'one transaction' argument are documents which are internal to EXIM. The statements contained in those documents do not form part of the objective facts known to the relevant parties, CSTT and EXIM. Even if it were permissible to have regard to the EXIM Pre‑Approval Report, the Report does not support the finding for which EXIM submitted, namely that it executed the loan facility agreement 'on the faith' of the promise of future security to be provided by CSTT.

261 The EXIM Pre‑Approval Report records that EXIM 'will spare no effort to support Ruyi Group's projects'. That effort included advancing the loan within the 'tight time' and without requiring security over CSTT's shares in CSA. The EXIM Pre‑Approval Report referred to three problems relating to a CSA equity pledge and expressly recommended 'that this form of guarantee is not a condition for lending'.

262 Although the later 24 December 2012 Credit Approval Committee meeting minutes record as a loan condition that all 'safeguard measures' be completed, one of which is Ruyi and CSTT promising in writing to pledge 80% of the equity of CSA in a timely manner 'when the conditions are met, and if they cannot pledge our bank, they shall not pledge others before the loan of our bank is repaid', the minutes are internal only to EXIM.

263 The minutes predate the loan facility agreement and advance of the loan amount by approximately one month. EXIM has not produced any documents which explain why what was recorded internally as a proposed loan condition on 24 December 2012 did not find its way into the documentation of the loan from EXIM to Ruyi in January 2013. What is recorded in the minutes and what is relied on by EXIM is not consistent with and cannot stand as a substitute for the terms of the loan facility agreement itself.

264 If a condition concerning the later provision of security by CSTT was objectively intended to be incorporated as required security for the loan, consistent with the decisions in Electricity Generation Corporation v Woodside Energy Ltd[33] and TW Timber Treatment Pty Ltd v Giddings[34] upon which EXIM placed reliance, one would have expected these matters to be included in the comprehensive loan facility agreement.

265 It is also significant that article 32 of the loan facility agreement entered into by EXIM as Lender and Ruyi as Borrower squarely addressed the security to be provided. CSTT is not only not a party to the agreement. It is not named as a security provider. The submission by EXIM that 'the loan facility agreement does not include all involved parties' must be rejected.

266 Unlike both the facts in McVeigh and the discussion in Lewison to which Kenny J referred, this case is not concerned with documents executed contemporaneously with or shortly after the primary document to be construed. In this case a gap of more than three years separates the two documents.

267 To construe the 2016 Security Agreement as part of a larger transaction, the other contended for parts of which were not between the same parties would be inconsistent with article 38 of the 2013 loan facility agreement. Article 38 states that any amendment or supplement to that agreement shall be in writing and come into effect once signed and sealed by the borrower (Ruyi) and the lender (EXIM). That did not happen. Ruyi is not a party to the 2016 Security Agreement.

268 As at 25 July 2016 the loan from EXIM to Ruyi was in place. That loan, advanced three years earlier, had resulted in a flow of funds from Ruyi to CSTT in the form of share capital and from CSTT to CSA as documented in the CSA Loan Agreement. Accepting that CSTT benefited from the 2013 loan and the consideration that moved from EXIM to Ruyi, that benefit was in the past. There was no 'new' or 'fresh' benefit that flowed to Ruyi or to CSTT in July 2016 when the 2016 Security Agreement was signed.

269 As at 25 July 2016 there was no obvious benefit to CSTT from entering into the 2016 Security Agreement and EXIM did not identify any benefit.

270 The submission by EXIM that as a standalone agreement the 2016 Security Agreement is supported by valuable consideration because that agreement represents the substitution of existing rights in the CSTT Undertaking Agreement must be rejected because I have rejected the proposition there was any such agreement. The premise for that consideration submission does not exist.

271 The submission by EXIM that specific provisions in the 2016 Security Agreement conferred new contractual rights upon EXIM and CSTT which were additional to the provision of security by CSTT which reflects the plea in paragraph 6A(d) and (e) of the Reply proceeds from the same premise. Namely, that CSTT was already contractually bound by the CSTT Undertaking Agreement. That is not the case. There was no such agreement.

272 For the reasons discussed I am not persuaded that EXIM provided consideration in exchange for entry by CSTT into the 2016 Security Agreement.

273 CSTT submitted and EXIM denied the authority of Mr Qiu and of Ms Gu to bind it to the agreements and documents relied on by EXIM. While I have found for other reasons that the various agreements relied on by EXIM are not made out, given the detailed submissions and the attention devoted to these issues during the trial it is appropriate to identify the applicable principles concerning authority and ratification and how, if it were necessary to do so, I would have determined those contested issues.

274 In short, if it were necessary to do so I would have determined the authority and ratification issues in a manner adverse to EXIM.

L.1 Authority to bind and ratification: the principles

275 The principles concerning authorisation are well‑established[35]and were not in dispute. It is convenient to identify the principles primarily by reference to the submissions and the authorities to which those submissions refer.

276 As summarised by EXIM, actual authority exists where a principal has given consent to an agent to act for it, either expressly or impliedly. It may be given expressly when it is given by express words, such as by a board resolution which authorises the agreement.[36] It may be given impliedly when it is inferred from the conduct of the parties and the circumstances of the case, such as when a board of directors nominate one of their number to be managing director.[37]

277 An implied grant of actual authority may result from acquiescence by persons in the conduct of another person where those persons have actual authority to delegate. For example, where directors as a board stand by while a single director enters into transactions outside his or her authority. In such a case the board's acquiescence in that course of dealing can constitute a grant, by implication, of actual authority to enter into those transactions.[38] However, for such an implied grant of actual authority to arise, there must be clear acts of acquiescence by persons other than the agent themselves. For example, if a board of directors stand by while a single director assumes a de facto managing director role.[39]

278 The parties agree that whether actual authority is to be implied is to be found in a 'close analysis of the evidence'.[40]

279 Ostensible authority relies on an estoppel founded in a representation by a principal that its agent had the authority to enter the contract on its behalf. In order to bind the principal, the representation must be relied upon by the other party and must be made by a person or persons who had actual authority.[41]

280 A company can be estopped from denying that it gave authority to an agent where a representation has been made on behalf of the company to third persons that a particular person has authority to commit it to a contract or other legal obligation. For a company to be estopped from denying that it gave apparent authority, the third party must establish the following:[42]

(a) a representation was made to the other party that the agent had authority to enter into a contract of the kind sought to be enforced on behalf of the company;

(b) the representation was made by a person or persons who had 'actual' authority to manage the business of the company, either generally or in respect of those matters to which the contract relates;

(c) the other party was induced by such representation to enter into the contract; and

(d) under its constitution the company was not deprived of capacity to enter into a contract of the kind sought to be enforced or to delegate authority to enter into a contract of that kind to the agent.

281 Where a company has several directors, a single director acting individually has no usual authority to bind the company.[43] If a single director is to have power to bind the company, that director must be validly delegated power by a resolution of the other directors in accordance with the constitution, or must have the power as an agent.

282 In Crabtree‑Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd,[44] the High Court held that a representation of authority cannot be made by a person who only has apparent authority themselves. In Quickfund (Australia) Pty Ltd v Prosperity Group International Pty Ltd (in liq),[45] the Full Federal Court observed that a purported agent cannot make a representation as to his or her own authority so as to prove the existence of the alleged agency.

283 The 'indoor management rule', relied on in this case by EXIM, sometimes referred to as the rule in Royal British Bank v Turquand,[46] provides, in simple terms, that persons dealing with a company in good faith may assume that acts within its constitution and powers have been properly and duly performed. Those persons are not bound to inquire whether acts of internal management have been regular. That is the case unless that party knows that the agent lacked the requisite authority or the circumstances were such as to put that person on inquiry.[47]

284 Whether a reasonable person would be put on inquiry may be determined by the nature of the transaction itself. In Northside, a lender took a mortgage executed under seal from a company over its land to secure a loan given to another company. The person who affixed the company seal to the mortgage and who conducted the negotiations for the loan, was a director of both companies. The affixing of the company seal was attested by the director and his son, who was not a director or secretary of the company. The constitution of the company required the authority of the board for the use of the company seal and attestation of the sealing by a director together with another director or with a secretary. The mortgagor company had not authorised the giving of the mortgage or the use of its seal by the director. The mortgage was held to be invalid. The lender could not rely on the indoor management rule. Mason CJ said:[48]

... to hold that a person dealing with a company is put upon inquiry when that company enters into a transaction which appears to be unrelated to the purposes of its business and from which it appears to gain no benefit is, in my opinion, to strike a fair balance between the competing interests.

Indeed, there is much to be said for the view that the adoption of such a principle will compel lending institutions to act prudently and by so doing enhance the integrity of commercial transactions and commercial morality.

A creditor will ordinarily be put on inquiry when his debtor offers as security a guarantee given by a third party company whose business is not ordinarily the giving of guarantees, for the execution of guarantees and supporting securities for another's liabilities, not being for the purposes of a company's business nor otherwise for its benefit, is not ordinarily within the authority of the officers or agents of the company.

287 EXIM submitted that ratification is constituted by 'clear acts of adoption, approval or acquiescence by a principal who has full knowledge of the relevant facts'. Ratification may be express or implied from conduct and can be constituted by a series of acts, although it must be within reasonable time. To ratify the unauthorised transaction of an agent, the evidence must establish that the principal had full knowledge of all the material circumstances in which the unauthorised transactions were made and thereby 'consciously sanctioned' the agent's unauthorised act,[51] or took 'no steps to disown or remedy the conduct'.

288 The onus of establishing an unauthorised transaction by an agent was subsequently ratified by the principal rests on the party asserting the transaction. Whether conduct amounts to ratification is a question of fact. In considering whether a company has ratified a document, the following factors are to be borne in mind:

(a) the supposed agent must have professed at the time to act on behalf of the principal, and not for some other entity;[52]

(b) ratification must occur within a time which is reasonable in the circumstances;[53]

(c) there should be clear adoptive acts, in the sense that the ratifying conduct must be unequivocal;[54]

(d) there must be full knowledge of all the material circumstances in which the act was done, unless the principal intends to ratify and take the risk whatever the circumstances. The extent of knowledge necessary depends on the particular facts. It should be enough knowledge to decide whether or not to adopt the unauthorised act; and[55]

(e) acceptance of the benefit of the unauthorised act of the agent with knowledge that the benefit flows from that act will ordinarily suffice.[56]

289 In Lederberger v Mediterranean Olives Financial,[57] the Court of Appeal stated that ratification can be inferred by silence or acquiescence, but the principles identified above must still be met. The Court of Appeal said:[58]

Ratification can be inferred from silence or acquiescence. But for a principal to ratify the unauthorised transactions of an agent, the evidence must establish that the principal had full knowledge of all the material circumstances in which the unauthorised transactions were made and thereby consciously sanctioned the agent's unauthorised act. Silence or acquiescence will not constitute ratification absent proof of a knowing acceptance sufficient to be treated in equity as an assent to what would otherwise be an infringement of rights. The evidence must establish knowledge by the principal which enables his or her subsequent inaction to be seen as an adoptive act or consciously sanctioned.

L.2 The scope of pleaded issues concerning authority

290 CSTT submitted the case advanced by EXIM in closing relied on arguments in relation to authority which were never part of EXIM's pleaded case. CSTT referred to submissions by EXIM that:

(a) Mr Qiu had the actual or ostensible authority of CSTT to sign documents on behalf of CSTT, or to delegate authority to Ms Gu, otherwise than in accordance with the CSTT Constitution; and

(b) Mr Qiu was a de facto managing director, or a shadow managing director, of CSTT.

291 In response EXIM submitted that Mr Qiu's and Ms Gu's authority was raised by CSTT in the Defence and was confronted squarely in the Reply. The Reply pleads that Ms Gu was specifically authorised by the 'Gu Delegation' signed by Mr Qiu, and that Ms Gu was held out by CSTT as authorised to execute the 2016 Security Agreement. The Reply pleads that Mr Qiu was authorised by CSTT and held out as authorised by CSTT to execute the 2020/2021 Agreements. The Reply pleads that the 2016 Security Agreement and Ms Gu's actions were subsequently affirmed, adopted and/or otherwise endorsed or approved by CSTT, including because of CSTT's failure to disavow the 2016 Security Agreement.

292 EXIM submitted that CSTT knew the issues of actual, implied and ostensible authorisation, as well as ratification were in issue. The parties agreed on a list of issues and EXIM submitted that CSTT addressed those topics in its opening submissions. EXIM submitted that CSTT's complaint is not a complaint about being taken by surprise; it is a complaint about the case it already knew it had to meet.

293 To determine whether the matters identified by CSTT as outside EXIM's pleaded case are accurately so described requires close attention to what the pleadings actually say. Although the agreed list of issues filed in accordance with s 50 of the Civil Procedure Act 2010 (Vic) ('the CPA') is both important and helpful, it is not a substitute for the pleadings.

294 The Defence admits that on or about 18 January 2013 Mr Qiu signed the Ruyi Letter of Undertaking and the CSTT Letter of Undertaking. Concerning the CSTT Letter of Undertaking the Defence pleads:

(i) the CSTT Letter of Undertaking was not executed in accordance with the requirements of the memorandum and articles of association of CSTT;

(ii) Mr Qiu did not have the authority to sign the CSTT Letter of Undertaking on behalf of CSTT;

(iii) In the premises, the CSTT Letter of Undertaking is not a document that was duly executed on behalf of CSTT.

295 The particulars relied on in the Defence concerning the CSTT Letter of Undertaking CSTT place specific reliance on clause 105 of the constitution.

296 In response to the allegation that there were terms and conditions of the Facility Agreement drawn from the CSTT Letter of Undertaking, CSTT pleads:

(i) it admits that, on or about 18 January 2013, the board of CSTT passed a resolution (CSTT Resolution);

(ii) it relies on the full terms of the CSTT Resolution;

(iii) the CSTT Resolution does not constitute a delegation of authority to Qiu to sign the CSTT Commitment Letter;

297 In its Defence concerning execution of the 2016 Security Agreement CSTT pleads:

(i) the [2016] Security Agreement was executed by [Ms Gu];

(ii) [Ms] Gu purported to execute the [2016] Security Agreement on behalf of CSTT;

(iii) [Ms] Gu is not, and has never been, a director or employee of CSTT;

(iv) [Ms] Gu was not authorised, either by CSTT or at law, to enter into the [2016] Security Agreement on behalf of CSTT;

(v) no officer or representative of CSTT executed the [2016] Security Agreement;

(vi) CSTT has not at any time since the 2016 Security Agreement was executed, adopted the Security Agreement or otherwise endorsed or approved of the actions of [Ms] Gu in executing that document;

(vii) by reason of the matters pleaded in sub‑paragraphs (i)‑(vi) above, the [2016] Security Agreement is void and unenforceable as against CSTT;

298 In its particulars in support of those allegations CSTT refers to the 21 June 2016 Authorisation Letter and says:

(a) the document is signed by Mr Qiu only, purportedly on behalf of Ruyi, and not on behalf of CSTT;

(b) the document was not executed in accordance with clause 105 of CSTT's memorandum and articles of association;

(c) the board of CSTT did not pass any resolution to empower Mr Qiu to delegate any authority to Ms Gu or to authorise Ms Gu to execute the [2016] Security Agreement on behalf of CSTT;

(d) in the premises, the document did not confer any legal authority on Ms Gu to do anything on behalf of CSTT, including the execution of the [2016] Security Agreement.

299 In paragraph 4 of the Reply EXIM responded to CSTT's allegations concerning the 2016 Security Agreement by saying:

... both EXIM and CSTT executed the [2016] Security Agreement. The [2016] Security Agreement was executed for and on behalf of CSTT by Ms Gu ... In the event it is found that CSTT did not specifically authorise Ms Gu to execute the [2016] Security Agreement on its behalf, then the [2016] Security Agreement was in any event validly executed for and on behalf of CSTT by Ms Gu as:

(a) CSTT held Ms Gu out and represented to EXIM that Ms Gu was authorised to execute the [2016] Security Agreement on its behalf and in these circumstances, Ms Gu was acting as agent for and on behalf of CSTT;

(b) Ms Gu, as Director and/or CEO and/or Executive President of Ruyi, the owner of 100% of the shares in CSTT which was then acting as agent for and on behalf of CSTT was authorised to sign the [2016] Security Agreement for and on behalf of CSTT and personally attended for the signing of the documents, held herself out as authorised to sign on behalf of CSTT and then executed the documents for and on behalf of CSTT.

300 At paragraphs 5(a) and (b) the Reply EXIM pleads that:

(a) [Ms] Gu was specifically authorised by CSTT to execute the 2016 Security Agreement for and on behalf of CSTT by way of a Directors' Resolution of CSTT dated 25 July 2016 (Directors' Authorising Resolution);

(b) CSTT has, since the time the 2016 Security Agreement was executed and prior to that time, affirmed, adopted and/or otherwise endorsed or approved the [2016] Security Agreement and the actions of Ms Gu in executing that agreement by:

1. sending a letter in or about July 2016 to BDO Corporate Services Pte Ltd (Letter to BDO) in which it confirmed the [2016] Security Agreement which letter was signed by an authorised representative of CSTT, [Mr] Qiu who then held himself out as and was in fact a director of CSTT;
2. failing at any point in time since the execution of the 2016 Security Agreement to disavow the [2016] Security Agreement, advise or notify EXIM that [Ms] Gu was not authorised to sign the Security Agreement or to advise or notify EXIM that [Ms] Gu was not the Executive Director of CSTT as was written on the 2016 Security Agreement at the time it was executed; and/or
3. on or about 27 July 2016, registering the charge given by CSTT over its present and future interest in its shares in CSA on the PPSR and that in these circumstances, the [2016] Security Agreement is valid and enforceable as against CSTT.

301 In relation to the 2020/2021 Agreements, in its Defence CSTT pleads:

(a) the agreements were executed by Mr Qiu;

(b) Mr Qiu purported to execute the agreements on behalf of CSTT;

(c) Mr Qiu was not authorised, either by CSTT or at law, to enter into the agreements on behalf of CSTT;

(d) no other officer or representative of CSTT executed the agreements;

(e) CSTT has not at any time since the agreements were executed, adopted the agreements or any of them or otherwise endorsed or approved of the actions of Mr Qiu in executing those documents; and

(f) by reason of the matters pleaded above, the agreements are void and unenforceable as against CSTT.

302 In its Reply, responding to the authority issues raised concerning the 2020/2021 Agreements, EXIM says:

(a) Mr Qiu was at all material times since on or about 4 October 2012 until the present time an Officer/Authorised Representative of CSTT, holding the position of a Director of CSTT; and

(b) at all material times since 4 October 2012 until the present time CSTT has held Mr Qiu out and represented him as being a Director of CSTT, thereby authorising him to sign documents on behalf of CSTT;

such that [the 2020/2021 Agreements are] valid and enforceable as against CSTT and there is therefore no need for CSTT to adopt or otherwise endorse or approve [the 2020/2021 Agreements or any of them].

303 The Reply provided particulars of various documents signed by Mr Qiu in support of the allegation that CSTT held out and represented Mr Qiu as being a director of CSTT thereby authorising him to sign documents on its behalf.

L.2.3 Ruling as to the scope of the pleaded issues

304 It is convenient to consider first, the scope of the authority issues concerning Ms Gu, second, to consider the scope of the authority issues concerning Mr Qiu.

305 The Defence alleges at paragraph 11(b) that Ms Gu was not authorised to execute the 2016 Security Agreement on behalf of CSTT. It pleads that Mr Qiu was not empowered by a resolution of the Board of CSTT to delegate any authority to Ms Gu or to authorise her to execute the 2016 Security Agreement on behalf of CSTT. Paragraphs 5(a) and (b) of the Reply in response are set out above. Those paragraphs do not plead and it is no part of EXIM's case to plead that Mr Qiu had actual or ostensible authority to delegate authority to Ms Gu to enter into the 2016 Security Agreement, otherwise then in accordance with the CSTT Constitution and that he actually or ostensibly did so. Submissions to that effect by EXIM are outside the pleaded case. They are not part of the case CSTT came to meet at trial and must be put to one side.

306 Turning to the pleaded case relating to Mr Qiu, I do not agree with CSTT that the submission that Mr Qiu had actual or ostensible authority to sign documents concerns issues that are outside the pleaded cases of the parties.

307 The Defence pleads that Mr Qiu did not have authority to sign the CSTT Letter of Undertaking and was not delegated authority to sign that letter by the CSTT Resolution. The Defence also pleads that Mr Qiu was not authorised by CSTT or at law to enter into the 2020/2021 Agreements, or any of them. Those allegations in the Defence put Mr Qiu's authority in issue concerning those documents.

308 The Reply alleges that CSTT affirmed the 2016 Security Agreement by, amongst other things, sending a letter in or about July 2016 to BDO Corporate Services Pte Ltd in which 'it confirmed the [2016] Security Agreement which letter was signed by an authorised representative of CSTT, [Mr] Qiu, who then held himself out as and was in fact a director of CSTT'. The Reply alleges in relation to each of the 2020/2021 Agreements that Mr Qiu has been an officer/authorised representative of CSTT, holding the position of director since 2012 and that since 4 October 2012 CSTT held out Mr Qiu as a director of CSTT thereby authorising him to sign documents on its behalf.

309 While the issues I have identified concerning Mr Qiu's authority are raised on the pleadings, it is correct that there is no plea that Mr Qiu had actual or ostensible authority of CSTT to sign documents other than in accordance with the CSTT Constitution. No such plea is made in the Reply.

310 It is also the case that there is no plea by EXIM in the Reply or elsewhere that Mr Qiu was a de facto or shadow managing director of CSTT. Submissions by EXIM that he so acted are outside the pleaded case. It is not open to EXIM rely on such allegations as part of or in support of its case.

311 CSTT submitted the Court should make the following findings:

(a) article 105 of the CSTT Constitution precludes the company from executing any instrument except with the signature of two directors, or a director and a secretary;

(b) Ms Gu did not have authority (actual or ostensible) to execute the 2016 Security Agreement;

(c) Mr Qiu did not have the authority (actual or ostensible) to sign any instrument to confer authority on Ms Gu;

(d) EXIM cannot rely on the indoor management rule, as it was put on inquiry including by reason of the following matters:

(i) Ms Gu was not a director, officer or employee of CSTT;

(ii) Ms Gu was purportedly authorised by Mr Qiu, who had given a personal guarantee to EXIM in respect of the same loan that the 2016 Security Agreement purported to secure;

(iii) the 2016 Security Agreement would have diminished Mr Qiu's personal exposure to enforcement action;

(iv) as evidenced by the EXIM Pre‑Approval Report, EXIM already had concerns about the role and influence of Mr Qiu within the broader Ruyi group;

(v) the 2016 Security Agreement conferred no benefit on CSTT, there was no need for CSTT to sign an agreement to secure a loan that had already been advanced; and

(vi) Mr Chen expressly asked the lawyers acting for EXIM to ensure the 2016 Security Agreement was properly executed. EXIM's lawyers had access to the CSTT Constitution on the day the 2016 Security Agreement was signed, along with an ACRA company extract which revealed the directors of CSTT.

(e) CSTT did not ratify the 2016 Security Agreement:

(i) The 2020/2021 Agreements were signed by Mr Qiu, who did not have the authority to unilaterally bind CSTT. In addition, those Agreements do not, by their terms, ratify the 2016 Security Agreement.

(ii) The 2020/2021 Agreements do not confer any benefit on CSTT, nor do they imbue CSTT with full knowledge of all the material circumstances surrounding the execution of the 2016 Security Agreement.

(iii) The other documents and actions taken by Mr Qiu on and shortly after 25 July 2016, including taking steps to facilitate the registration of a charge, do not constitute ratifying conduct of CSTT. That is the case because Mr Qiu did not have actual or ostensible authority of CSTT to take such action.

312 CSTT submitted that to the extent EXIM relies on documents which Mr Qiu unilaterally signed, each of those documents were signed by Mr Qiu purportedly on behalf of CSTT, acting alone and in contravention of the CSTT Constitution.

313 CSTT submitted the plea by EXIM that CSTT held Ms Gu out and represented to EXIM that she was authorised to execute the 2016 Security Agreement based on the 'Directors' Resolutions' of CSTT dated 25 July 2016 should be rejected. That document contained an execution clause for Mr Qiu and Mr Lim to sign, but only Mr Qiu signed. No directors resolution or effective delegation was made in accordance with the requirements of the CSTT Constitution.

314 CSTT submitted that even if the representation of Ms Gu's authority was substantiated, and CSTT says it was not, there was no evidence given by any person on behalf of EXIM and no document was identified that established that EXIM relied on the directors resolutions as the basis for Ms Gu's authority to bind CSTT.

315 CSTT submitted that to get around the problem that Ms Gu is neither a director or secretary of CSTT, EXIM relied on the 'Authorization Letter' signed by Mr Qiu on 21 July 2016. However, that letter did not authorise Ms Gu to do anything on behalf of CSTT:

(a) the letter was signed by Mr Qiu on behalf of Ruyi; and

(b) the terms of the authorisation state that Ms Gu has authority to sign on behalf of the 'Company', which is defined to be Ruyi, not CSTT.

316 Concerning EXIM's submissions that CSTT validly executed the 2016 Security Agreement and other documents, by reason of the fact that CSTT is a subsidiary of Ruyi, and that Mr Qiu occupies a position of importance within the broader Ruyi Group, CSTT submitted there is no special doctrine in the law of responsibility on the part of a parent company in relation to the activities of a subsidiary, or vice versa, in relation to persons affected by those activities. Parent and subsidiary companies are separate legal personalities, each with responsibility for their own separate activities.

317 A common feature of each of the 2020/2021 Agreements is that they were signed for CSTT by Mr Qiu only. There is no evidence that CSTT authorised Qiu to sign those agreements in a manner inconsistent with its constitution. As well as signing the 2020/2021 Agreements on behalf of CSTT, Mr Qiu also signed them on behalf of Ruyi and on his own behalf as a personal guarantor of the loan. Unless EXIM can show that the indoor management rule applies in its favour, or that CSTT ratified the agreements, neither of which is the case, they are not binding on CSTT.

318 CSTT submitted that so far as EXIM seeks to rely upon the indoor management rule, the Court should find the rule does not apply as:

(a) EXIM has not demonstrated that CSTT conferred either Ms Gu or Mr Qiu with actual, implied or ostensible authority, to sign any of the agreements on which EXIM relies; and

(b) The circumstances were such as to put a reasonable person on inquiry as to whether Ms Gu and Mr Qiu had authority to sign the documents. EXIM's failure to make any inquiry or to satisfy itself, means that it cannot rely upon the rule.

319 The circumstances that would have put a reasonable person on inquiry were as follows:

(a) the 2016 Security Agreement was signed more than three years after the Facility Agreement;

(b) there was no benefit to CSTT in entering into the Security Agreement. It was not CSTT's ordinary business to provide securities for no benefit to itself;

(c) Ms Gu was not a director, secretary or officer of CSTT. There was no obvious reason why she should sign the 2016 Security Agreement on behalf of CSTT;

(d) Ms Gu was purportedly authorised by Mr Qiu alone to sign the 2016 Security Agreement;

(e) Mr Qiu gave a personal guarantee to EXIM under the loan facility agreement. He personally stood to benefit by co‑opting CSTT into giving security;

(f) Mr Qiu unilaterally signed each of the Qiu documents in a manner contrary to the CSTT Constitution; and

(g) as evidenced by the Pre‑Approval Report, EXIM was already concerned about the role and influence of Mr Qiu within the broader Ruyi group.

320 CSTT submitted that these matters, taken together or separately, would have put a reasonable person on inquiry to satisfy themselves that Ms Gu and Mr Qiu were duly authorised to sign documents on behalf of CSTT. EXIM's failure to satisfy those inquiries mean the indoor management rule is not applicable.

321 Concerning ratification, CSTT denies that it is party to the 2020/2021 Agreements. It disputes that those agreements refer to the 2016 Security Agreement. It submitted the acts of ratification relied upon by EXIM are not clear and unequivocal acts of adoption, nor is it established that CSTT (as opposed to Mr Qiu personally), had fully knowledge of all the circumstances at the time of the alleged acts of ratification.

322 CSTT advanced the following submissions in response to the plea by EXIM that CSTT ratified the 2016 Security Agreement:

(a) First, while EXIM asserts that by sending a letter to BDO Corporate Services Pte Ltd in July 2016, CSTT confirmed the 2016 Security Agreement, that document was signed by Mr Qiu alone, who did not have authority to unilaterally bind CSTT.

(b) Second, the plea that CSTT ratified the 2016 Security Agreement by failing at any point in time since its execution to disavow it misconceives the relevant law. An act of ratification requires some positive act by the company, or requires it to take the benefit of the document ratified. A mere failure to disavow a document cannot constitute an act of ratification.

(c) Third, EXIM alleges CSTT ratified the 2016 Security Agreement on 27 July 2016 registering a charge over CSTT's present and future interests in its shares in CSA. However, Mr Chen confirmed in his witness statement that EXIM registered the charge is not clear. There is no evidence that CSTT authorised or permitted this registration.

323 So far as EXIM relies on the 2020/2021 Agreements as constituting acts of ratification of the 2016 Security Agreement, CSTT contended that submission should be rejected:

(a) Mr Qiu was not authorised to unilaterally ratify the 2016 Security Agreement on behalf of CSTT. He cannot therefore unilaterally ratify that agreement by signing subsequent agreements in a manner contrary to the requirements of the constitution.

(b) Each of the 2020/2021 Agreements provide that they will only come into effect on the date when they are 'signed and sealed by all parties'. There is no evidence this ever occurred.

(c) CSTT is identified in each of the 2020/2021 Agreements as a 'pledgor', rather than a 'mortgagor'. This is not a mere trifle. A pledge and a mortgage are different things.[59]

(d) The 2020/2021 Agreements are not by way of deed and, pursuant to clause 9.1 of the 2016 Security Agreement, cannot amend that agreement.

324 EXIM submitted that the 2016 Security Agreement and each of the 2020/2021 Agreements were actually or ostensibly authorised by CSTT and bind it. Alternatively, that each such agreement was subsequently affirmed or adopted by the later acts and omissions of CSTT.

325 EXIM contended that Ms Gu, who signed the 2016 Security Agreement, and Mr Qiu, who signed the 2020/2021 Agreements, did so with CSTT's actual or ostensible authority. EXIM called upon the indoor management rule and the principles of ratification in further aid of its case.

326 EXIM submitted that it entered into the 2020/2021 Agreements with Ruyi and others to implement the outcomes from the Creditors Committee meetings. CSTT was a party to these agreements, which refer to, affirm and re‑adopt the 2016 Security Agreement.

327 EXIM urged the Court to find that Mr Qiu had the actual implied authority of CSTT to:

(a) delegate to Ms Gu the authority to sign the 2016 Security Agreement, and

(b) execute each of the 2020/2021 Agreements himself.

328 Mr Chen's evidence was that: 'In my memory, when this document [the 2016 Security Agreement] was signed, their director gave Ms Gu some letter of authorisation'.[60] When asked whether he was referring to the Authorisation Letter, Mr Chen's response was that there was 'there was another letter which was similar to a resolution letter'.[61] Later, he said: 'I seem to recall that there was a resolution or some sort of documents, I can't recall exactly, of CSTT which clearly gave the authority to Ms Gu'.[62] He indicated that he had mentioned this document in his affidavit, but could not recall its exact name.

329 EXIM submitted that Mr Chen's second statement does refer to a document he describes as the 'Directors' Resolution in Writing Pursuant to the Company's Constitution and dated 25 July 2016. This is the document referred to as the Gu Delegation. The effect of this evidence is to place a document specifically referring to a CSTT Board resolution authorising Ms Gu to sign the 2016 Security Agreement as having been exchanged when the 2016 Security Agreement was signed.

330 EXIM relied on Mr Qiu's authority to bind CSTT on what it described as overwhelming evidence of Mr Qiu's control and power within the Ruyi Group and the circumstances in which the 2016 Security Agreement and CSTT as an entity came to exist including:

(a) Mr Qiu was and remains a director of CSTT;

(b) CSTT is wholly‑owned by Ruyi, an entity in which Mr Qiu is a significant beneficial owner. Mr Qiu held and continues to hold the position of director, Chairman and legal representative of Ruyi;

(c) Mr Qiu was himself, until 8 June 2022, a director of CSA. His daughter remains so;

(d) CSTT has always owned 80% of the issued share capital in CSA;

(e) CSTT was specifically incorporated alongside CSA as a special purpose vehicle to facilitate the Cubbie Station acquisition, which was the purpose for the US $74.8 million loan being secured by the 2016 Security Agreement;

(f) CSA purchased Cubbie Station with the loan provided by EXIM to Ruyi, via an intra‑company loan between CSTT and CSA;

(g) CSTT had no other employees who could execute documents for it;

(h) there is no evidence that CSTT had any other significant business; and

(i) the CSTT Letter of Undertaking and CSTT Board Resolution already contemplated the pledging of CSTT's shares in CSA which the 2016 Security Agreement would bring about. EXIM submitted that Mr Qiu signed almost every significant document in the proceeding - all except a witness statement explaining his actions. No other CSTT director gave evidence to offer a different account. EXIM submitted in the alternative that CSTT held out Mr Qiu as having the authority to execute the 2020/2021 Agreements, which confirmed the validity of the 2016 Security Agreement.

331 EXIM submitted that CSTT is seeking to convert the legal fiction of separate corporate personality into an objective fact. CSTT was nothing more than a vehicle for manifesting the Ruyi Group's plans to acquire an Australian cotton fields property that would support its business. Mr Qiu was the Ruyi Group, and the Ruyi Group was Mr Qiu.

332 Concerning the indoor management rule, EXIM submitted the Court should find it was entitled to rely on the assumption that CSTT's house was in order and Mr Qiu and Ms Gu were authorised to act as they did.

333 Ruyi, CSTT and CSA had already furnished letters and accompanying board resolutions to EXIM on 18 January 2013 signed by all directors indicating a pledge of the CSA shares to EXIM would occur if it could. There was nothing which would put EXIM on inquiry that something was amiss.

334 Contrary to the position adopted by CSTT, the fact Mr Qiu was a personal guarantor of the Loan serves to reinforce rather than contradict the impression left with EXIM that he was a man so intricately involved with the Ruyi Group that the two could not be separated. EXIM submitted that to say it was put 'on inquiry' as to irregular internal management processes within CSTT because Mr Qiu provided a personal guarantee for the loan, would be to draw a conclusion which ignores the objective facts. Nothing was irregular in how EXIM would have seen Mr Qiu to be behaving given his position as corporate patriarch for the Ruyi Group.

335 EXIM submitted that unlike the transaction in Northside, the transaction here went to the core of CSTT's business. The transaction was the very reason for CSTT's incorporation. CSTT clearly obtained a benefit from the Loan extended to Ruyi. It submitted nothing was irregular in how EXIM would have seen Mr Qiu to be behaving, as Mr Qiu was and had acted as the corporate patriarch for the Ruyi Group throughout the relationship with EXIM dating back to 2009.

336 EXIM submitted that if Mr Qiu did not have the implied authority to authorise Ms Gu to execute the 2016 Security Agreement, then he must have had it by the passage of time and further acts which occurred between 2016 and 2020/2021. In this time, Mr Qiu presented to the Creditors' Committee meetings as Chairperson for the Ruyi Group and a clause now reflects that group status in the same Creditors' Agreement that CSTT seeks to rely on in this litigation.

337 EXIM submitted the Court should find the 2016 Security Agreement to have been actually or ostensibly authorised by CSTT, as is the case concerning each of the 2020/2021 Agreements. If those agreements were ostensibly authorised, as EXIM submitted is the case, it follows that CSTT agreed to be bound by the Security Agreement from 20 March 2020.

338 EXIM submitted the Court should find that Mr Qiu was held out by CSTT as having the authority to sign the subsequent agreements, which he did. Those agreements refer to and confirm the validity of the 2016 Security Agreement, making CSTT bound to its terms.

339 Alternatively, if the 2016 Security Agreement was not authorised at the time of its execution, the Court should find that the agreement was otherwise affirmed and adopted by CSTT's acts or failures to act since 2016, including:

(a) the failure to revoke or correct, at any time before this litigation commenced, the PPSR registration on 26 July 2016 of EXIM's security interest in the CSA shares, and apparently, also on 25 July 2016, the ACRA reference from 25 July 2016 to the 2016 Security Agreement;

(b) the failure until 30 September 2022 to disabuse EXIM from proceeding on the basis that CSTT was a party to the 2016 Security Agreement,

(c) its very existence as an entity was bound up in the Cubbie Property transaction partly financed by the Loan from EXIM;

(d) on 26 July 2016, a PPSR Registration document was created showing EXIM as a secured party;

(e) in 2019, Mr Qiu and Ms Qiu signed a deed extending the repayment date on an A$176.5 million loan granted to CSA by CSTT, which was initially financed by the US $74.8 million Loan to Ruyi;

(f) CSTT's director, Mr Qiu, signed each of the 2020/2021 Agreements which each refer to, affirm and re‑adopt the Security Agreement;

(g) CSTT produced each of the above documents on discovery, along with numerous documents showing Mr Qiu signing documents relating to the 2016 Security Agreement unilaterally on behalf of CSTT; and

(h) CSTT led no evidence from any of its current directors as to when CSTT first knew of the existence of these documents or the registrations with PPSR and ACRA, such that the Court is invited to infer that any evidence it could have led would not have been assisted its case.

340 If Ms Gu did not have the requisite authority to sign the 2016 Security Agreement, but Mr Qiu did have the actual implied authority to sign the subsequent agreements, then his execution of the subsequent agreements which refer to, affirm and re‑adopt the 2016 Security Agreement would also ratify the earlier unauthorised acts of Ms Gu.

341 At all times since the execution of the 2016 Security Agreement until CSTT's response to the letter of demand on 30 September 2022, EXIM had proceeded on the basis that CSTT was bound by the 2016 Security Agreement. Over those 6 years, 2 months and 5 days, CSTT took no steps to disown the 2016 Security Agreement nor to notify EXIM that Ms Gu did not have authority to sign it, nor the subsequent agreements signed by Mr Qiu which refer to it. CSTT's failure to act occurred in circumstances where it must be inferred that its directors (of which Mr Qiu was one) had full knowledge of all the material circumstances in which the so‑called unauthorised transactions were made.

342 EXIM submits the Court should find that CSTT knew of all the material facts relating to the 2016 Security Agreement and adopted it as its own. The contrary proposition would be for the Court to accept that over a period between 25 July 2016 and 19 May 2021, no less than four different agreements were entered to in CSTT's name, three of which were signed by its current director (who it has not called to give evidence), and all of which were unknown to it in circumstances where the company was itself established to facilitate the purchase of a property financed by the Loan that the 2016 Security Agreement and subsequent agreements relate to.

L.4 The CSTT Constitution

343 Attention was directed to the following articles of the CSTT Constitution relevant to questions of authority:

(a) Article 81 enables the directors to exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital, or any part thereof, and to issue debentures and other securities whether outright or as security for any debt, liability, or obligation of the Company to or of any third party.

(b) Article 83 provides that the directors may exercise all the powers of the Company in relation to any official seal for use outside Singapore.

(c) Article 85 provides that the directors shall cause minutes to be made of all appointments of officers, of names of directors present at all meetings, and of all proceedings at all meetings of the Company and of the directors.

(d) Article 91 provides that the quorum necessary for the transaction of the business of the directors shall be two unless, unless the directors agree on some other number.

(e) Article 88 provides that, for the purposes of despatching business, any question arising at any meeting of directors shall be decided by a majority of votes.

(f) Article 99 provides that a resolution in writing signed by a majority of the directors and constituting a quorum shall be as effective as a resolution duly passed at a meeting of the directors.

(g) Article 103 provides that the directors may entrust to and confer upon a managing director any of the powers exercisable by them.

(h) Article 105 reproduced at paragraph 142 above concerns the execution of documents by application for the company seal.

L.4.1 EXIM's submissions regarding the CSTT Constitution

344 EXIM submitted that CSTTs' reliance on its constitution was a 'red herring'. EXIM was entitled to rely on the indoor management rule in assuming that CSTT had its house in order and that Ms Gu and Mr Qiu were properly authorised to execute the agreements that they executed.

345 When EXIM had a contemporaneous document signed by Mr Qiu which certified (or purported to certify) that the CSTT Board had passed resolutions authorising Ms Gu to sign the 2016 Security Agreement, EXIM had no reason to look for the CSTT Constitution.

346 In any case, article 81 of the CSTT Constitution clearly gave the CSTT directors the power to execute security agreements.

347 EXIM drew attention to the purported amendment to the CSTT Constitution by Mr Qiu in 2016.

L.4.2 CSTT's submissions regarding the CSTT Constitution

348 CSTT rejected EXIM's submission that the CSTT Constitution is a 'red herring' and that CSTT should somehow not be entitled to rely on its constitution. CSTT submitted that as a matter of fact and law, CSTT is restrained by its constitution in terms of its powers.[63]

349 CSTT submitted its constitution makes clear what is required for actual express authority. The constitution does not make provision for CSTT to enter into binding agreements without the application of the company seal and the signature of two directors or a director and secretary.

350 The directors must resolve, at a meeting constituting a quorum, to confer authority on a person for any particular thing (articles 83, 99). Where such a resolution is made, it must be reflected in minutes (article 85). CSTT submitted that it did not at any time confer actual authority, by way of a minuted resolution of directors (or by way of a general meeting of the company) on any person to enter into the 2016 Security Agreement.

351 Responding to EXIM's contention that Mr Qiu amended the CSTT Constitution in 2016 and that this amendment was significant in relation to the authority of Mr Qiu to bind CSTT, CSTT submitted that contention is misconceived:

(a) the purported amendment was made by Mr Qiu acting alone. Mr Qiu did not have the authority to make unilateral amendments to the CSTT Constitution;

(b) the amendments did not concern any of the articles relevant to this dispute; and

(c) the amendments did not ratify the 2016 Security Agreement, which was not mentioned. The amendments related to security over shares owned by Ruyi in CSTT that were charged in favour of EXIM under a different security agreement than the 2016 Security Agreement the subject of this proceeding.

352 I accept the proposition that the starting point is the CSTT Constitution.

353 As is CSTT's pleaded case, neither the 2016 Security Agreement nor any of the 2020/2021 Agreements, or for that matter, any document relied on in the proceeding by EXIM, was executed by CSTT by the application of the company seal, as provided for in accordance with article 105 of the CSTT Constitution.

354 Each of the 2020/2021 Agreements provided for the seal of the parties to be affixed. That took place in the case of some of the parties who entered into the agreements. It did not occur in relation to CSTT.

355 I accept the submission by CSTT and find that on 25 July 2016 the CSTT Constitution was available to any person who sought to obtain a copy of it from ACRA. The amendments to the CSTT Constitution concerning which Mr Qiu signed documents on 25 July 2016 are amendments that relate to security provided by Ruyi over the shares it held in CSTT. Those amendments do not concern security given or to be given by CSTT over its shares in CSA. If there is a 'red herring' concerning the CSTT Constitution, it is the reliance by EXIM on that amendment to the constitution.

356 Although EXIM and CSTT made submissions about evidence given by Mr Chen and by Mr Materne concerning the CSTT Constitution, such evidence provides no assistance when determining the contested issues relating to authority and the CSTT Constitution.

357 Not all documents to be executed by CSTT are required by its constitution to be executed under seal in accordance with article 105. Articles 81 and 91 permit the directors, plural, to exercise all powers of the company including borrowing money and granting security for any debt liability or obligation of the company. Article 85 requires the directors of CSTT to cause minutes to be made of all meetings of the company and of the directors.

358 I find that Ms Gu was not authorised to bind CSTT. She had no authority to do so. The two documents relied on by EXIM, the Authorisation Letter and the Gu delegation do not support a finding that Ms Gu had actual implied authority to bind CSTT.

360 There is no evidence the directors of CSTT resolved to sign the 2016 Security Agreement or that they resolved to sign all or any one of the 2020/2021 Agreements. There is no evidence that in accordance with articles 83, 91 and 99 of the CSTT Constitution the directors authorised Ms Gu to sign, or that they authorised CSTT to enter into the 2016 Security Agreement signed by Ms Gu. There is similarly no evidence the directors of CSTT passed a resolution providing for entry into, or for Mr Qiu to sign all or any one of the 2020/2021 Agreements.

361 The Authorisation Letter upon which EXIM relied concerning Ms Gu's signing of the 2016 Security Agreement on behalf of CSTT provides no evidence that is capable of supporting a finding that CSTT authorised Ms Gu to sign on its behalf and to bind CSTT to the 2016 Security Agreement. The Authorisation Letter was an authorisation of Ms Gu by another company, Ruyi, a company of which Ms Gu was a Vice President. The Authorisation Letter is nothing to do with CSTT.

362 The Gu delegation is in a different category. It purports to be a delegation by CSTT. The problem so far as EXIM is concerned is that Mr Lim, at that time one of the two directors of CSTT, whose name appears on the document, did not sign the document. It must have been clear to any person who read the document that while two directors of CSTT were expected to sign, only one had done so. There is no evidence from EXIM of any conversation or communication with CSTT enquiring when Mr Lim was to sign or why he had not done so.

363 I do not accept the submission by EXIM that Mr Qiu had CSTT's actual implied authority to act as its agent in authorising Ms Gu to execute the 2016 Security Agreement. The matters relied on to found that submission are matters that relate to Ruyi and Ruyi Group rather than to CSTT.

364 To the extent EXIM contends Ms Gu had ostensible authority to bind CSTT:

(a) Ms Gu had no 'actual authority' to make such a representation.

(b) EXIM adduced no evidence to support a finding that it relied on a representation by Ms Gu, or by Mr Qiu, as a result of which it was induced to enter into the 2016 Security Agreement.

(c) It is also significant that while on 25 July 2016 Mr Qiu signed a 'Certified Extract of Directors Resolutions in writing dated 25 July 2016', the resolutions that he certified did not include the two resolutions relating to Ms Gu included in the Gu delegation signed by Mr Qiu and not by Mr Lim.

365 In light of the matters to which I have referred, I am not persuaded that Ms Gu had ostensible authority to bind CSTT to the 2016 Security Agreement.

366 I consider the reliance by EXIM on the indoor management rule concerning the signing by Ms Gu of the 2016 Security Agreement is problematic.

367 Mr Chen gave evidence that he asked the lawyers acting for EXIM to ensure the 2016 Security Agreement was properly executed. Those lawyers, in Singapore, as he was at the time the documents were signed, could have accessed the ACRA database. If they had done so they would have known that the 2016 Security Agreement was not executed in accordance with the CSTT Constitution and that it was not 'properly executed'.

368 There have been submissions about Jones v Dunkel and the inferences that should be drawn. Those submissions were not directed to evidence from the Singapore lawyers. However, it is the fact that EXIM did not lead evidence from its Singapore lawyers about the inquiries that they made and the searches they undertook in 2016.

369 Accepting the accuracy of Mr Chen's evidence which I do, the Singapore lawyers should have done what Mr Chen instructed them to do on behalf of EXIM. They should have insisted upon execution of the 2016 Security Agreement under seal or the provision of a resolution signed by the directors of CSTT authorising a delegation in favour of Ms Gu. While Mr Chen gave evidence that there was 'another letter which was similar to the resolution letter' apart from the Authorisation Letter, EXIM did not adduce evidence of a letter from CSTT which gave authority to Ms Gu. Faced with the Gu delegation document with provision for Mr Lim to sign but not signed by him, EXIM was put on enquiry.

370 It is not to the point that based on the documents tendered at trial, the last document Mr Lim signed was in 2013. He remained a director of CSTT in 2016 and his name and a space for him to sign appeared on the incomplete Gu delegation.

371 The fact that Mr Qiu was a significant beneficial owner of the Ruyi Group and known by EXIM to be the main driving force behind the loan and the acquisition of a controlling interest in Cubbie Station by CSTT did not mean that EXIM was entitled to act without regard to the CSTT Constitution. EXIM was put on enquiry by the reference to Mr Lim in the Gu delegation document and the fact the loan transaction to which the 2016 Security Agreement related had taken place and been completed and documented three years earlier between parties that did not include CSTT.

372 EXIM was not entitled to proceed on the basis that because CSTT was part of the Ruyi Group that as long as Mr Qiu signed, there was no need to look further and it could rely on the indoor management rule. EXIM was not entitled to ignore the fact that each entity in a corporate group is a separate corporation, the conduct of whose affairs is governed by its own constitution. I agree with the submission that the fact that the agreement was one for which there was no consideration and which was in respect of a loan that had been advanced to Ruyi three years earlier of which Mr Qiu was a pre‑existing personal guarantor are matters that would have put a reasonable person on inquiry.

373 As Brennan J said in Northside, a creditor will ordinarily be put on inquiry when his debtor offers as security a guarantee given by a third party company whose business is not ordinarily the giving of supporting securities for the liabilities of a third party. In 2016, and also in 2020/2021, CSTT was such a company.

374 I do not accept that the asserted acts of ratification relied on by EXIM have been established by EXIM to be acts of ratification or of adoption by CSTT undertaken by it with full knowledge. The acts of ratification relied on were acts undertaken by Mr Qiu.

375 Documents relied on by EXIM to establish ratification were discovered by CSTT several years later as part of this proceeding. However the fact that copies of the documents were discovered by CSTT falls short of establishing that CSTT had full knowledge of all of the material circumstances or that CSTT engaged in clear and unequivocal acts of adoption in circumstances where there was no benefit that flowed to CSTT from entry into the 2016 Security Agreement.

376 The 2020/2021 Agreements were signed by Mr Qiu alone. Those agreements also were not executed in accordance with the CSTT Constitution. No resolution of directors or delegation from the directors of CSTT authorising or entitling Mr Qiu to sign the documents on behalf of CSTT formed part of the evidence.

377 The 2020/2021 Agreements were signed in the context of financial difficulties encountered by Ruyi and meetings of its banking creditors in Shandong. That provides the factual context in which each of the agreements provided for the parties proposed to be bound by them to affix their seal. Not only did the agreements provide for each company to affix their seal, the seal for a number of companies in the Ruyi Group was in fact affixed to these documents. That did not occur on any of the documents in the case of CSTT. Mr Qiu signed, but no seal was affixed.

378 When it comes to EXIM relying on the indoor management rule concerning the 2020/2021 Agreements, it is telling that in contrast to the method of execution of the agreements by other companies, not just companies in the Ruyi Group, but also EXIM, in the case of CSTT no seal was affixed. What occurred in the case of CSTT was that Mr Qiu simply signed as 'authorised representative'. Once again, if EXIM had checked the CSTT Constitution, it would have known that the 2020/2021 Agreements had not been validly executed by Mr Qiu so as to bind CSTT.

379 As was the case in 2016, CSTT received no benefit from entering into the 2020/2021 Agreements, or any of them. It was not bound by the 2016 Security Agreement. To repeat what Mason CJ said in Northside:[64]

... to hold that a person dealing with a company is put upon inquiry when that company enters into a transaction which appears to be unrelated to the purposes of its business and from which it appears to gain no benefit is, in my opinion, to strike a fair balance between the competing interests.

Indeed, there is much to be said for the view that the adoption of such a principle will compel lending institutions to act prudently and by so doing enhance the integrity of commercial transactions and commercial morality.

380 Both in respect of the 2016 Security Agreement and in respect of the 2020/2021 Agreements, EXIM failed to act in accordance with that observation.

381 I do not accept the submission by EXIM that CSTT held out Mr Qiu as having the authority to execute the 2020/2021 Agreements. As held by the High Court in Crabtree‑Vickers, a representation of authority cannot be made by a person who only has apparent authority themselves. It was Mr Qiu who held himself out as having authority, not CSTT. Contrary to EXIM's submissions, nothing about the passage of time between 2016 and 2020/2021 altered the position.

382 For the same reasons discussed concerning the 2016 Security Agreement, there was no ratification by CSTT of the 2020/2021 Agreements.

383 I find that the lack of authority defences pleaded by CSTT both in respect of the 2016 Security Agreement and in respect of each of the 2020/2021 Agreements are made out.

384 CSTT pleaded that in the event the Court finds that the 2016 Security Agreement or the 2020/2021 Agreements or any of them are binding as against CSTT, which CSTT denies, that EXIM is estopped from enforcing those agreements other than in accordance with the resolutions agreed to by the creditors committee of Ruyi (of which EXIM is a member).

385 Because I have found the 2016 Security Agreement and each of the 2020/2021 Agreements are not binding on CSTT it is unnecessary to deal with the CSTT Estoppel Case.

386 For completeness, the answers to the questions identified by CSTT in paragraph 67 above are as follows:

(a) No.

(b) No.

(c) No.

(d) No.

(e) Not necessary to answer.

(f) Not necessary to answer.

387 For the reasons set out above I order the proceeding is dismissed.

388 The plaintiff is to pay the defendant's costs including reserved costs. If the defendant contends those costs should be paid other than on a standard basis:

(a) the defendant is to file and serve submissions of no more than 4 pages by 4:00pm on 15 August 2025; and

(b) the plaintiff is to file and serve submissions in reply of no more than 4 pages by 4:00pm on 22 August 2025.

389 If it is necessary to determine contested costs issues I will do so on the papers.

[1] Transcript of hearing on 1 April 2025 in The Export‑Import Bank of China v CSTT Co Holdings Pte Ltd, 314-315.

[2] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 ('Jones v Dunkel').

[3] Woolworths Ltd v Ryder [2014] NSWCA 223; (2014) 87 NSWLR 59 [35].

[4] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 321.

[5] Payne v Parker [1976] 1 NSWLR 191, 202 (Glass JA in dissent).

[6] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[7] Woolworths Ltd v Ryder [2014] NSWCA 223; (2014) 87 NSWLR 593 [35] (Sackville AJA).

[8] ASIC v Hellicar [2012] HCA 17; (2012) 247 CLR 345, 348 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[9] Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135 [72] (Ipp JA).

[10] Coles Supermarkets Australia Pty Ltd v Tormey [2009] NSWCA 135 [72] Ipp JA citing Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 308, 312, 320-321.

[11] HML v R [2008] HCA 16; (2008) 235 CLR 334 [303] (Heydon J).

[12] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361, 384-385 (Heydon, Crennan and Bell JJ).

[13] Transcript of hearing on 25 March 2025 in The Export‑Import Bank of China v CSTT Co Holdings Pte Ltd, 160.

[14] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283.

[15] Personal Property Securities Act 2009 (Cth) ('PPSA') s 12(2)(f).

[16] Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95, 105 [25].

[17] Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126, [36]-[40] (Gageler CJ, Gordon, Edelman and Beech‑Jones JJ).

[18] Kramer v Stone [2024] HCA 48; (2024) 99 ALJR 126. [39].

[19] Eastwood v Kenyon [1840] EngR 80; (1840) 113 ER 482; Roscorla v Thomas [1842] EngR 70; (1842) 114 ER 496; SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 [69].

[20] See, for example, Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 823; Hill v Forteng Pty Ltd [2019] FCAFC 105; (2019) 138 ACSR 344.

[21] [2000] FCA 187; (2000) 278 ALR 429 [30] ('McVeigh').

[22] Woolworths Ltd v Kelly (1991) 22 NSWLR 189, 193-194 (Kirby P).

[23] McVeigh v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429 distinguished by the Court of Appeal in Yume Group Holdings Pty Ltd v Ashthorn CA Pty Ltd [2024] VSCA 134.

[24] McVeigh v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429 [4] and [7].

[25] McVeigh v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429 [29].

[26] McVeigh v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429 [30].

[27] McVeigh v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429 [30].

[28] McVeigh v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429 [30]-[34] (citations omitted).

[29] McVeigh v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429 [68] (Kenny J).

[30] McVeigh v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429 [69].

[31] [1996] VicRp 44; (1996) 1 VR 594, 600.

[32] McVeigh v National Australia Bank Ltd [2000] FCA 187; (2000) 278 ALR 429 [77]-[78].

[33] [2014] HCA 7; (2014) 251 CLR 640, 656-7 [35] (French CJ, Hayne, Crennan and Kiefel JJ) ('Woodside Energy').

[34] [2022] VSCA 147 ('TW Timber Treatment').

[35] For a summary of the general common law principles, see Junker v Hepburn [2010] NSWSC 88 [39]-‍[48] (Hammerschlag J).

[36] Hely‑Hutchinson v Brayhead Ltd [1968] 1 QB 549, 583 (Lord Denning MR).

[37] Hely‑Hutchinson v Brayhead Ltd [1968] 1 QB 549, 583; re‑affirmed in Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262; (2012) 38 VR 509 [62] (Nettle, Redlich JJA and Beach AJA).

[38] Junker v Hepburn [2010] NSWSC 88 [43].

[39] Equiticorp Financial Services Ltd v Equiticorp Financial Services Ltd (1992) 29 NSWLR 360, 293-294 (Giles J) (affirmed on appeal in Equiticorp Finance Ltd (In Liq) v Bank of New Zealand (1993) 32 NSWLR 50, 132-‍138 (Clarke and Cripps JJA).

[40] Equiticorp Finance Ltd (In Liq) v Bank of New Zealand (1993) 32 NSWLR 50, 134 (Clarke and Cripps JJA); Cahill v Kiversun Pty Ltd [2017] VSC 641 [130] (Kennedy J).

[41] Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 [36].

[42] Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480, 506.

[43] See, for example, Brick Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] VicRp 68; [1992] 2 VR 279, 361; Chiodo Investments Pty Ltd v Rilac Pty Ltd [2023] VSC 590, [8].

[44] [1975] HCA 49; (1975) 133 CLR 72, [12]-[13] ('Crabtree‑Vickers') (Gibbs, Mason and Jacobs JJ)).

[45] [2013] FCAFC 5; (2013) 209 FCR 368 [79] (Foster, Barker and Griffiths JJ).

[46] Royal British Bank v Turquand [1856] EngR 470; (1856) 119 ER 886.

[47] Northside Developments Pty Ltd v Registrar‑General (1990) 170 CLR 146; [1990] HCA 32 [18]-[19], [22] (Mason CJ), [24] (Brennan J), [18] (Dawson J), [2]-[3], [6] (Toohey J), [11]-[13] (Gaudron J) ('Northside').

[48] Northside Developments Pty Ltd v Registrar‑General [1990] HCA 32; (1990) 170 CLR 146, [34] (Mason CJ).

[49] Northside Developments Pty Ltd v Registrar‑General [1990] HCA 32; (1990) 170 CLR 146, [34] (Mason CJ).

[50] Northside Developments Pty Ltd v Registrar‑General [1990] HCA 32; (1990) 170 CLR 146, [19]-‍[20] (Brennan J).

[51] Lederberger v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262; (2012) 38 VR 509 [74] (Nettle, Redlich JJA and Beach AJA).

[52] Keighley Maxted & Co v Durant [1904] AC 240; Ian Ramsay, Company Directors: Principles of Law and Corporate Governance (LexisNexis, 2nd ed, 2023) [3.49].

[53] Hughes v NM Superannuation Pty Ltd (1993) 29 NSWLR 653, 665; Ian Ramsay, Company Directors: Principles of Law and Corporate Governance (LexisNexis, 2nd ed, 2023) [3.49].

[54] Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 [132].

[55] Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 [134].

[56] Leybourne v Permanent Custodians Ltd [2010] NSWCA 78 [133].

[57] [2012] VSCA 262; (2012) 38 VR 509.

[58] Lederberger v Mediterranean Olives Financial [2012] VSCA 262; (2012) 38 VR 509 [74].

[59] Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249 [16]-[17] (McHugh, Gummow, Hayne and Heydon JJ).

[60] Transcript of hearing on 25 March 2025 in The Export‑Import Bank of China v CSTT Co Holdings Pte Ltd, 163.

[61] Transcript of hearing on 25 March 2025 in The Export‑Import Bank of China v CSTT Co Holdings Pte Ltd, 163.

[62] Transcript of hearing on 25 March 2025 in The Export‑Import Bank of China v CSTT Co Holdings Pte Ltd, 164.

[63] Virtgel Ltd v Zabusky [2006] QSC 066 [65].

[64] Northside Developments Pty Ltd v Registrar‑General [1990] HCA 32; (1990) 170 CLR 146, 396.