Plaintiff v Defendants

(a) August 2016 Loan Agreement which is three pages in length;

(b) December 2016 Loan Agreement which is three pages in length;

(c) Written JV Agreement which is three pages in length; and

(d) June 2017 Loan Agreement which is three pages in length (collectively 'Relevant Agreements').

1. Three other transactions documents are pleaded in the Claim, which do not contain exclusive jurisdiction clauses, being:

(a) a March 2017 Loan Agreement (between the first defendant, Bing Qian Gu ('Ms Gu') and the plaintiff);

(b) a July 2017 Loan Agreement (between Ms Gu and the plaintiff); and

(c) a Repayment Agreement (between Ms Gu and the plaintiff).

1. In support of their Summons, the defendants relied on the:

(a) affidavit of Stefan Saponja filed 22 September 2025 ('First Saponja Affidavit');

(b) affidavit of Stefan Saponja filed 12 November 2025 ('Second Saponja Affidavit'); and

(c) outline of submissions filed 12 November 2025.

1. The plaintiff opposed the relief sought by the defendants and relied on the:

(a) affidavit of Alicia Hall filed 31 October 2025;

(b) outline of submissions filed 17 November 2025; and

(c) the First and Second Saponja Affidavits.

1. At paragraph 47 of the plaintiff's submissions filed 17 November 2025, the plaintiff made an open concession in the following terms:

For the avoidance of doubt, provided that any stay application is filed before the end of 2025, the plaintiff will not contend that such application cannot be pursued by reason of the unconditional appearance of any defendant.

1. Despite this open concession, the defendants pressed for the relief in their Summons and maintained, before me, that it was necessary to determine the issue of whether the defendants have leave to withdraw their appearance pursuant to r 25.01 of the Rules prior to making an application for a stay.[1]

1. Under r 25.01 of the Rules, the Court can grant leave to permit a party to withdraw an appearance. In granting such leave, the Court exercises a discretion. Having voluntarily filed an appearance, the burden rests on the defendants to persuade the Court that it ought to exercise its discretion in their favour.
2. Rule 25.01 is in the following terms:

25.01 Withdrawal of appearance

A party who has filed an appearance in a proceeding may withdraw the appearance at any time with the leave of the Court.

1. The parties were largely in agreement as to the principles which applied to an application such as this, although with different emphasis.
2. In Pico Holdings Inc v Dominion Capital Pty Ltd ('Pico'),[2] Bongiorno J considered an application to withdraw an appearance under r 25.01 of the Rules, together with an application for a stay of the proceeding. Bongiorno J noted the following key principles:

(a) upon service of a writ being regularly served on a defendant against whom claims are made in personam, the Court has jurisdiction over such defendant;[3]

(b) the filing of the appearance by a defendant amounts to a submission to the jurisdiction of the Court;[4]

(c) a party who has filed an appearance in a proceeding may withdraw the appearance at any time, with leave of the Court. Where the defendant seeks both leave to file a conditional appearance and a stay of proceedings, the Court should consider the stay by applying the principles in Oceanic Sunline Special Shipping Company Inc v Fay[5];[6]

(d) in normal circumstances, by filing an appearance, the defendant submits to the jurisdiction of the Court and has waived any objection to the Court hearing the case;[7]

(e) the discretion to allow a withdrawal of an appearance must be exercised judicially and in light of all of the facts of the case, including whether the plaintiff alleges a waiver has occurred by the defendants of their rights to insist upon the exclusive jurisdiction clause;[8] and

(f) waiver involves a voluntary act by a defendant unequivocally evincing an intention to abandon an objection to jurisdiction,[9] and such intention may be express or its existence imputed from conduct.[10]

1. Further, the following additional principles also emerge from the authorities:

(a) mere submission to jurisdiction does not of itself amount to an irrevocable abandonment of the right to seek a stay of a proceeding on jurisdictional grounds;[11]

(b) the waiver must relevantly be of the 'private right' in question, i.e. the right to rely on an exclusive jurisdiction clauses, which waiver may occur in the 'stronger sense' or in the 'weaker sense';[12]

(c) the stronger sense is where a party makes an 'unequivocal final choice between alternative procedures so that it could be said that the party had abandoned the right';[13] and

(d) the weaker sense is where a party engages in 'conduct which might preclude a successful application based upon the exercise of the Court's discretion.'[14]

1. The parties agreed that, for the purpose of this application, only waiver in the weaker sense is relevant on the facts before the Court.
2. In ACD Tridon v Tridon Australia ('ACD Tridon'),[15] Austin J considered the doctrine of waiver observing that a right can be waived even though there is no alternative right inconsistent with it. Austin J distinguished between 'waiver in the weaker sense', where a party has not insisted upon a right either by choice or default, which would be a matter going to the Court's discretion rather than being binding upon that party, and 'waiver in the stronger sense', being where a party, having deliberately chosen not to take a point, or fails to take a point when it comes to notice, may be taken to have irrevocably abandoned that point.

1. Before me, there was no challenge as to the relevant chronological matters or the factual matters appearing below.
2. On 17 April 2025, the plaintiff, who is a Chinese citizen residing in China and who has held permanent residency since around 2015, commenced this proceeding by writ.
3. After commencing the proceeding, the plaintiff lodged caveats over several properties in Tarneit registered to the third defendant, New Sky Management Pty Ltd (ACN 610 142 268) ('New Sky'). The caveats were registered on the basis that the plaintiff claims an equitable interest in the Tarneit properties arising out of the joint venture and breach of trust which are the subject of this proceeding. No application has been made to remove the caveats.
4. On 30 June 2025, the defendants were effectively served, save for the second defendant (who resides in China). Ms Gu is a Chinese citizen who has resided in Australia since around 2015. New Sky is an Australian registered corporation.
5. On 16 July 2025, the defendants' solicitors notified the plaintiff's solicitors that it acted for Ms Gu and New Sky in this proceeding.
6. The next day, on 17 July 2025, the defendants' solicitors, on behalf of Ms Gu and New Sky, served a notice to produce to the plaintiff's solicitors requesting production of various documents referenced in the Claim, including the Relevant Agreements. The notice to produce was also accompanied by a letter from the defendants' solicitors which also called for the production of documents referred to in the Claim, including the Relevant Agreements.
7. On 21 July 2025, the plaintiff's solicitors provided the defendants' solicitors a copy of the Written JV Agreement and the Repayment Agreement (Chinese original and official English translations) referred to in the Claim, an explanation regarding the basis of the caveats as requested by the defendants' solicitors and noted that the balance of the documents would be provided shortly. Of the documents provided, both in Chinese and English, the Written JV Agreement contained an alleged exclusive jurisdiction clause.
8. On 22 July 2025, the plaintiff's solicitors requested that the defendants file an appearance by no later than 25 July 2025.
9. On 23 July 2025, the plaintiff's solicitors provided the defendants' solicitors with the original Chinese and official English translations of the balance of the documents sought in the notice to produce issued by the defendants.
10. Two days later, and after having received the Relevant Agreements, on 25 July 2025, the defendants' solicitors filed and served an appearance for Ms Gu and New Sky.
11. Between 18 July 2025 and August 2025, the defendants' solicitors communicated on behalf of Ms Gu and New Sky via email and telephone with the plaintiff's solicitors regarding the caveats lodged over New Sky's properties.
12. On 1 August 2025, the plaintiff's solicitors sent a letter to the defendants' solicitors seeking urgent production of critical documents relevant to the Claim, pursuant to s 26 of the Civil Procedure Act 2010 ('CPA'). The request sought specific documentation from these defendants regarding the sale of two properties that were owned by New Sky and the subject of the Written JV Agreement pleaded in the Claim. No response was provided to this request, despite a follow up request from the plaintiff's solicitors on 11 August 2025.
13. On 20 August 2025, the defendants' solicitors wrote to the plaintiff's solicitors and provided proposed consent orders relating to the future conduct of the proceeding. This communication and the enclosed orders made no mention of any challenge to jurisdiction and proposed that the defendants provide a defence to the Claim by 5 September 2025, critical documents by 24 October 2025 and that the matter be mediated by 28 November 2025.
14. Also on 20 August 2025, New Sky executed an escrow deed with the plaintiff and the purchaser of a property over which the plaintiff had lodged a caveat (said to be supported by the allegations in this proceeding), to hold monies from the sale of that property in escrow pending the outcome of this proceeding.
15. On 26 August 2025 at 10:00am, the defendants' solicitors requested that the plaintiff's solicitors respond to the proposed consent orders circulated on 20 August 2025. At 3:43pm on 26 August 2025, the plaintiff's solicitors provided a response to the draft consent orders.
16. At 5:01pm on 26 August 2025, more than one month after the appearance was filed, the defendants' solicitors sent an email to the plaintiff's solicitors providing amended proposed consent orders and foreshadowing, for the first time, that they expected that their clients would make a jurisdictional objection to the proceeding, and amended the proposed consent orders to reflect this issue. Mr Saponja noted in this email that on behalf of the defendants '[w]e consider that it is appropriate that the jurisdictional objection be determined prior to the filing of a defence'.
17. The parties negotiated consent orders on 27 August 2025 and submitted those orders to Waller J that day.
18. The subsequent orders made by Waller J on 28 August 2025 provided that Ms Gu and New Sky were required to file their Summons seeking to remove their appearance by 19 September 2025.
19. On 1 September 2025, the plaintiff served subpoenas ('Subpoenas') on:

(a) Commonwealth Bank of Australia - Ms Gu's bank;

(b) Westpac Banking Corporation - New Sky's bank;

(c) AW Bidco No 8 Pty Ltd - the purchaser of part of the Sayers Road Property; and

(d) Satterley Tarneit Derrimut Pty Ltd - the purchaser of the Derrimut Road Property.[16]

1. On 8 September 2025, the defendants' solicitors wrote to the plaintiff's solicitors noting that their clients intended to file a summons seeking orders for the removal of Ms Gu and New Sky's appearance on the basis of certain clauses in the Relevant Agreements, and sought the plaintiff's consent to Ms Gu and New Sky's appearance being made conditional.
2. On 15 September 2025, the plaintiff's solicitors responded setting out the basis upon which the plaintiff considered it was not appropriate for Ms Gu and New Sky's appearance to be made conditional.
3. On 22 September 2025, the defendants filed their Summons.
4. On 19 September 2025, the defendants' solicitors wrote to the Prothonotary and objected to the Subpoenas.
5. On 10 October 2025, the plaintiff wrote to the defendants' solicitors and set out the basis for the Subpoenas and requested that Ms Gu and New Sky withdraw their objections.
6. On 14 October 2024, the defendants' solicitors confirmed that they refused to withdraw their objections to the Subpoenas. The Subpoena objection hearing is listed before me on 22 January 2026.

1. The defendants raised seven key arguments as to why the Court ought to exercise its discretion and permit the withdrawal of the appearance and its replacement with a conditional appearance.
2. First, the defendants submitted that they have not waived their right to rely upon the exclusive jurisdiction clauses contained in the Relevant Agreements. They contended that waiver required clear and deliberate conduct that is inconsistent with maintaining that right. They submitted that nothing done by them, or their solicitors, rose to that level.
3. Second, they submitted that the filing of an appearance was a procedural step and was taken at a time when the defendants' solicitors had not yet reviewed the Relevant Agreements or taken instructions about the effect of the jurisdiction clauses. The appearance was filed to comply with a demand of the plaintiff, which demand was made before the plaintiff had provided copies of all of the pleaded agreements.
4. Third, the defendants' solicitors, by the First Saponja Affidavit, submitted that there was evidence before the Court to the effect that they only realised after reviewing the pleaded agreements that they contained exclusive jurisdiction clauses. The defendants' solicitor's evidence was that at no point were they instructed to waive any objection to jurisdiction; rather, once instructions were sought, they were given express instructions to object to jurisdiction.
5. Fourth, the defendants contended that they acted promptly to raise the issue of the appearance with the plaintiff's solicitors. The defendants' submitted that the plaintiff has unreasonably refused to consent to procedural orders giving effect to the orders now sought in the Summons. In this context, they contended that the situation was on all fours with Gorton J's decision in Yang v Yue[17] ('Yang') in that the plaintiff contends, contrary to authority, that the defendants have 'submitted' to the Court's jurisdiction simply by filing an appearance. Particular reliance was placed on a letter from the plaintiff's solicitors to the defendants' solicitors dated 15 September 2025 which was in the following terms:

...

2.2 It would appear to us that your client has submitted to the jurisdiction of the Supreme Court to hear the matter following on the authority of Pico Holdings Inc v Dominion Capital Pty Ltd [2001] VSC 333 (Pico) and the principles set out by the High Court in Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 as cited in that case.

2.3 In considering in the Pico case whether there had been a waiver, as contemplated by rule 25.01 of the Supreme Court Rules, His Honour applied the principles set out in Schweitzer v Kroner Verwaltungs, GMBH & Anor, in which a waiver involves a voluntary act by the defendant unequivocally evincing an intention to abandon an objection to jurisdiction.

2.4 By failing to raise the jurisdictional issue until this late stage and actively participating in the proceedings without objection (until this point) we are of the view that a waiver has occurred and as such leave to withdraw and submit a conditional appearance would not be granted.

...

1. The defendants denied any delay or that they had 'actively participat[ed] in the proceedings without objection' emphasising that pleadings had not closed and they had not taken any substantive steps in the proceeding save for objecting to jurisdiction.
2. Fifth, the defendants submitted that the plaintiff caused the Subpoenas to be issued, without leave, prior to the close of pleadings and in circumstances where the jurisdictional question was yet to be determined. Although the defendants have written to the Prothonotary objecting to the Subpoenas, they contended that they have done so reactively and on grounds that there is a jurisdictional objection yet to be resolved which may result in the proceeding being stayed. This was not, they contended, a step that could amount to a waiver despite what was alleged by the plaintiff in correspondence dated 10 October 2025 which was in the following terms:

We consider your clients proposed objection to inspection of these subpoenas, and to seek to intervene in the subpoena process, to be inconsistent with its parallel position that they have apparently not submitted to the jurisdiction of the Court. Your clients cannot on the one hand say that they are not appearing in this proceeding, and then simultaneously seek to be heard to object to inspection of subpoenas in the same proceeding. We will draw this inconsistency to the Court's attention at the hearing scheduled for 19 November 2025.

1. Sixth, the defendants contended, relying on Global Partners Fund Limited v Babcock & Brown Limited (in Liq),[18]('Global Partners Fund') that even though New Sky was not a party to the Relevant Agreements containing the alleged exclusive jurisdiction clauses, New Sky would still be entitled to prosecute an application for a stay on the basis that the claims against it arose out of or in connection with the subject matter of the Relevant Agreements.[19] They further submitted, relying on Venter v Illona MY Ltd,[20] ('Venter') that it would be undesirable to have the hearing of the plaintiff's Claim fractured and heard in parts in two different jurisdictions - a matter the defendants intend to press in any future stay application. On this basis, the defendants submitted that it was appropriate that they continued to press the Summons on behalf of New Sky as New Sky would also be entitled to pursue a stay of the proceeding.
2. Finally, in conclusion, the defendants contended that the plaintiff ought to have consented to orders granting leave to file a conditional notice of appearance and that if this had occurred, the defendants would have filed a summons seeking a stay thereby progressing determination of the real issue in dispute.[21]

1. The plaintiff contended that Court ought not exercise its discretion to grant leave to the defendants to withdraw the appearance on the following eight grounds.
2. First, claims are made against Ms Gu pursuant to transaction documents that do not contain alleged exclusive jurisdiction clauses, namely the March 2017 Loan Agreement, the July 2017 Loan Agreement and the Repayment Agreement. Relying on Venter (as did the defendants), the plaintiff submitted that it would be undesirable to have the hearing of the plaintiff's Claim fractured and heard in parts in two different jurisdictions. However distinguishing the defendants' reliance on Venter, the plaintiff contended that significant contractual claims advanced by the plaintiff were not subject to any exclusive jurisdiction clause and could be prosecuted irrespective of the clauses in the Relevant Agreements.
3. Second, New Sky is a company registered under the Corporations Act 2001 (Cth). New Sky is not party to any of the Relevant Agreements, being those that contain the purported exclusive jurisdiction clauses. The claims against New Sky are based on breaches of duties as trustee. Accordingly, there is no basis upon which New Sky could responsibly contend that it be entitled to file (and maintain) a conditional appearance.
4. Further, the plaintiff's Senior Counsel submitted that the analysis offered to the Court by the defendants' Counsel in respect of Global Partners Fund was incomplete. Senior Counsel for the plaintiff drew the Court's attention to the remarks of Hammerschlag J, at first instance,[22] (which were undisturbed on appeal) to demonstrate that his Honour would have reached a different conclusion had he been looking at a clause such as those contained in the plaintiff's Relevant Agreements.[23]
5. Third, Senior Counsel for the plaintiff submitted that it was wholly unnecessary that Ms Gu's appearance be withdrawn. In Yang, Gorton J permitted the defendants to bring an application for a stay based on an alleged exclusive jurisdiction clause notwithstanding the fact that the defendants had filed an appearance.[24] The plaintiff noted that an open offer had been set out in its written submissions to the effect that it would not contend that any stay application, if filed before the end of 2025, could not be pursued by reason of the appearance filed by the defendants. The plaintiff otherwise noted that in the First Saponja Affidavit, the defendants' solicitor had conceded that not all of the agreements that were pleaded in the Claim were executed or signed by Ms Gu.[25] On that basis it was contended that the defendants could not approbate and reprobate.
6. Fourth, Senior Counsel for the plaintiff submitted that there had been unnecessary and unexplained delay on the part of the defendants in bringing their application to withdraw the appearance and any application for a stay. This delay, it was contended, had, and was continuing to cause delay having regard to the nature of the plaintiff's Claim. The essence of the plaintiff's Claim is that he alleges:

(a) between August 2016 and March 2017, he entered into three loan agreements with Ms Gu to advance to her a total of approximately $12.1 million;

(b) in March 2017, Ms Gu invited him to participate as to 30% in a property joint venture involving two parcels of development land that had been purchased by Ms Gu through New Sky in Tarneit for a combined purchase price of over $96 million;

(c) in June 2017, he agreed to participate in the joint venture and, as part of that agreement, also agreed to contribute, and in fact contributed, approximately $4.75 million, being an amount equal to 30% of what he had been told the deposit to acquire the two properties was;

(d) Ms Gu, who resided in Melbourne, agreed to conduct the property joint venture on behalf of the plaintiff and herself;

(e) in June 2017, he advanced a further sum of approximately $10.8 million to Ms Gu and the second defendant, her husband or domestic partner, Mr Ding;

(f) in July 2017, he made a further loan of Ms Gu in the sum of $901,163.00;

(g) in July 2017, New Sky settled the purchase of the first of the two joint venture properties, being the Derrimut Road Property;

(h) in September 2017, in the lead up to settlement of the purchase by New Sky of the second of the joint venture properties, being the Sayers Road Property, he contributed a further $20 million to New Sky at the request of Ms Gu;

(i) in December 2017, New Sky settled the purchase of the Sayers Road Property;

(j) New Sky held the two properties as trustee for the joint venturers including to him as to 30%;

(k) subsequently, Mr Gu arranged for some development works to be carried out on the properties, but the details of these are not known to him. As a result of the COVID-19 pandemic, he was unable to travel to Australia for some years to observe the status of the joint venture properties;

(l) in early 2021, in disregard for his interests, Ms Gu, the sole director of New Sky, caused New Sky to sell the Derrimut Road Property which sale settled in August 2021 (during the Covid-19 travel restrictions);

(m) on a date not known to him, Ms Gu also caused New Sky to sell a large part of the Sayers Road Property, which settled in April 2021;

(n) after August 2021, he received some funds from Ms Gu and in November 2022, after Ms Gu agreed to repay him, he and Ms Gu entered into the Repayment Agreement. Only some repayments were made by Ms Gu, following the entry into the Repayment Agreement;

(o) despite request, neither Ms Gu nor New Sky has explained what has occurred to, or otherwise accounted for, the proceeds of sale of the joint venture properties.

1. Whilst he cannot presently quantify his claim, the plaintiff contends that tens of millions of dollars are unaccounted which has necessitated the issuing of the Subpoenas. He contends that the Subpoenas are intended to enable him to seek to trace the proceeds of the sale of the joint venture properties. The defendants have opposed the Subpoenas on what was submitted by the plaintiff was an unmeritorious premise that they were objecting to jurisdiction.
2. Fifth, the plaintiff submitted that any application for the withdrawal of an appearance under r 25.01 of the Rules ought to have been pursued concurrently with a stay application because r 8.08(3) of the Rules expressly provides that a conditional appearance shall have effect for all purposes as an 'unconditional' appearance, unless, on application by the defendant, the Court otherwise orders and, under r 8.08(4) of the Rules, such application must be made within 14 days. Accordingly, a conditional appearance merely provides a temporary holding pattern, which lapses automatically, unless the Court orders otherwise. It was submitted that, having filed an appearance, the defendants were seeking to change that status quo, but without seeking to address the merits (i.e. the stay) which goes to the heart of any right to maintain a conditional appearance. Relatedly, the plaintiff submitted that by bifurcating the jurisdictional challenge and listing the challenge to the notice of appearance separately to any stay application, despite the authority in Yang, the defendants have further delayed the plaintiff's ability to advance his claim promptly.
3. Sixth, and while not pressed by the defendants, the plaintiff submitted that there was no need to withdraw an appearance in order to argue a stay based on forum non conveniens if that was what the defendants intended to do on any future stay application.[26]
4. Seventh, the plaintiff noted that the Relevant Agreements which contained alleged exclusive jurisdiction clauses were not lengthy nor complex. The English language translations totalled approximately 12 pages. The defendants' solicitors had been provided with these documents days prior to the filing of the appearance and had sufficient time to identify the alleged exclusive jurisdiction clauses.
5. Finally, Senior Counsel for the plaintiff submitted that the facts supported a finding that the defendants' rights to object to jurisdiction have been waived 'in the weaker sense'. As to waiver, the plaintiff relied on the following matters:

(a) prior to filing an appearance, on 17 July 2025, the defendants filed a notice to produce accompanied by a letter of demand seeking a copy of various documents pleaded in the Claim. The obligations which a notice to produce imposes are similar to those imposed by a subpoena;[27]

(b) between 18 July 2025 and 22 July 2025, the defendants corresponded via their solicitors, with the plaintiff's solicitor in relation to the lodgement by the plaintiff of caveats over the defendants' properties which are said to be the subject of the Written JV Agreement;

(c) between 30 July 2025 and 5 August 2025, the defendants' solicitors were provided with and/or copied into correspondence concerning the caveated properties;

(d) on 1 August 2025 and 11 August 2025 the defendants were provided with letters from the plaintiff's solicitors requesting the provision of critical documents under s 26 of the CPA;

(e) on 20 August 2025, the defendants prepared a proposed a minute of consent order which included a proposal by the defendants that they file their defences by 5 September 2025;

(f) on 26 August 2025, the defendants followed up the plaintiff for a response as to the defendants' proposed consent orders;

(g) between 26 and 27 August 2025, the parties negotiated via their respective solicitors, the finalisation of consent orders that were submitted to Waller J on 28 August 2025; and

(h) on 19 September 2025, the defendants notified the Prothonotary that they objected to the Subpoenas.

1. The discretion to allow a withdrawal of an appearance must be exercised judicially and in light of all of the facts of the case.
2. The defendants were regularly served in Victoria with the Claim, which pursued claims in personam. It follows that the Court has jurisdiction over the defendants. The defendants bear to the onus of establishing that the Court ought to exercise its discretion to permit the appearance to be withdrawn.
3. In Pico, Bongiorno J refused leave to allow an appearance to be removed, finding the defendants conduct amounted to a waiver of their right to rely on the exclusive jurisdiction clause. His Honour held that the waiver had occurred by the defendants, (whom he noted had taken just under a month after filing their appearance to issue a summons seeking to withdraw the appearance and a stay) who had taken several steps in the proceeding, including responding to and appearing at a Mareva application and agreeing to take steps set out in a proposed letter in response to the Mareva application.
4. Having regard to the steps taken by the defendants, via their solicitors, set out in paragraph 60 above, and the defendants' active participation in the proceeding, I am satisfied that this conduct amounts to 'waiver in the weaker sense', in relation to the filing of the appearance, as described by Austin J in ACD Tridon.
5. The alleged exclusive jurisdiction clauses were not raised at all between 16 July 2025 (when the defendants' solicitors were engaged and then served a notice to produce) and 23 July 2025 (by which time all Relevant Agreements pleaded in the Claim had been provided to the defendants' solicitors).
6. Further, the alleged exclusive jurisdiction clauses were not raised at all between 25 July 2025 when the appearance was filed and 26 August 2025 when the defendants, via their solicitors, proposed consent orders for the filing of defences and attendance at mediation.
7. In my view, this leads to a necessary inference that by either 25 July 2025 or 26 August 2025, the defendants had abandoned their objection to jurisdiction. I reject the submission by the defendants' Counsel that the defendants' conduct in the proceeding has been merely defensive. The defendants have actively participated in the proceeding. They have filed a notice to produce, they have engaged, via their solicitor, in correspondence concerning the subject matter of the proceeding and they have proposed consent orders for the management of the proceeding.
8. My conclusion is fortified by the absence of any evidence before the Court that the defendants' solicitors (or the defendants themselves) did not know of, or had forgotten about, the existence of the exclusive jurisdiction clauses. Rather, the defendants' solicitor's evidence was in the following terms:

At that time, I had not yet properly considered the terms of the various agreements pleaded in the SOC and provided to Destra Law on 21 and 23 July 2025, including the effect of any exclusive jurisdiction clauses. Nor had I taken instructions from the First and Third Defendants about the contents of those agreements

1. The Relevant Agreements are not lengthy. They comprise 12 pages. It is, in my view, significant that the defendants' solicitor's evidence is not to the effect that he did not read the Relevant Agreements prior to filing the appearance, or indeed, prior to preparing proposed consent orders almost one month later and offering to file defences and mediate the proceeding. Rather, his evidence is merely that at the time of filing the appearance, he had not properly considered the Relevant Agreements or taken instructions as to the content of the Relevant Agreements.
2. Further, the defendant's solicitor's evidence was that:

After filing the [appearance] [he] reviewed the various agreements and formed the view that each contained an exclusive jurisdiction clause and that, as such, the First and Third Defendants may have a valid objection to jurisdiction

1. The defendants' solicitor's evidence is at best, opaque, as to whether the alleged exclusive jurisdiction clauses had been considered prior to circulating the proposed consent orders.
2. The defendants otherwise sought to explain away the filing of the appearance on the basis that it was done in response to a request by the plaintiffs. I find that explanation unpersuasive and I reject it. True it is that on 22 July 2025, the plaintiff's solicitors sent correspondence to the defendants' solicitors asking for an appearance to be filed. However, that request did no more than set out the dates of service of the proceeding on the defendants and state '[w]e ask that you serve your clients' [appearance] upon us no later than 25 July 2025 in accordance with Order 8.04.' There was no urgency as to the plaintiff's request. It did not refer to, let alone threaten, seeking judgment in default of appearance. The next day, on 23 July 2025, the plaintiff's provided a copy of the remaining Relevant Agreements. Having been provided with all of the Relevant Agreements, there was no request by the defendants for time to consider these documents prior to filing an appearance on 25 July 2025.
3. It is relevant also that at around the time of requesting an appearance be filed, the plaintiff was cooperating with the defendants by voluntarily furnishing information as to the basis of the plaintiff's caveats, providing copies of all documents pleaded in the Claim, and inviting the defendants' solicitors to reach agreement on behalf of New Sky as to the payment of the proceeds of sale of one relevant properties into a controlled monies account. In the context of those cooperative communications, I do not accept that it was not open to the defendants to request further time in which to file an appearance, if time was in fact required for the defendants to read the Relevant Agreements.
4. Finally, before me, there was much emphasis placed by the defendants on the fact that the application to withdraw the appearance was premised on the desire to seek a stay. Because of this, both parties alluded to some of the arguments that might be put on the stay application itself, in particular in relation to the various interpretations available to the alleged exclusive jurisdiction clauses.
5. To this end, the plaintiff's Senior Counsel submitted that the entire premise of the defendants' application rest on the - merely foreshadowed - stay application.
6. In Yang, Gorton J, considered whether the defendants had waived the right to seek a stay of the proceeding in order to litigate in China. In the context of a summary judgment application, and where the defendants had filed appearances and had not applied to withdraw those appearances or sought to stay the proceeding in the nearly two years the proceeding had been on foot, Gorton J concluded:

Despite the plaintiffs' criticisms, it was not contended, and nor could it be, that the defendants' failure to have filed a summons seeking to have the matter stayed meant that the defendants could not rely on the references to the Chinese law and jurisdiction in the agreements ... The plaintiffs contended that the defendants could not do so because they had 'submitted' to this Court's jurisdiction.

1. The plaintiff's Senior Counsel submitted that if, contrary to the position taken by Gorton J in Yang, it was necessary for the defendants application to withdraw their appearance to succeed in order to proceed with a stay application, then the defendants have not done enough in this application to persuade the Court of the merits of the stay application.
2. The hearing before me was not an application for a stay. Accordingly, it is not appropriate for me to express any view as to the merits of such application. However, the fact that the defendants are yet to file any stay application is a factor which I have taken into account in the exercise of my discretion in light of all of the facts and circumstances of the case.
3. Given my conclusions, it is not necessary to consider the separate position of New Sky as distinct from Ms Gu.

Civil Procedure Act

1. Finally, it is necessary to make some brief observations as to the defendants' compliance with the CPA.
2. On 8 September 2025, having determined that they intended to issue the Summons, the defendants' solicitors wrote to the plaintiff's solicitors referencing part 8.1 of the Commercial Court Practice Note ('Practice Note')[28] seeking the details of Counsel retained in the matter for a conferral to take place.
3. On 15 September 2025, the plaintiff's solicitor provided the details of who had been briefed for the plaintiff and requested that the defendants' solicitor provided the details of Counsel retained for the defendants so that a conferral could take place. No response was received to this correspondence.
4. On 17 September 2025, the contact details of the defendants' Counsel were again sought by the plaintiffs' solicitor so that a conferral could take place.
5. On 18 September 2025, in a telephone conversation deposed to by Ms Hill, the defendants' solicitors provided the plaintiff's solicitors with the details of Counsel retained for the defendants but otherwise stated that it was not necessary for the parties to confer in relation to the Summons. The draft Summons was provided to the Court later that day.
6. Despite the defendants' solicitors identifying the obligation in the Practice Note, and the plaintiff's solicitors requesting the names of Counsel retained for the defendants on two separate occasions in order to organise a conferral, those requests were either ignored, or in the last instance refused on the basis that there was no need to confer. That approach is neither consistent with the statutory obligations imposed on the defendants, and their solicitors as set out in the CPA,[29] or the requirements prescribed in the Practice Note. A conferral ought to have been agreed to by the defendants' solicitors and it ought to have taken place prior to the issue of the Summons, or at least prior to the hearing before me.
7. Not only was there no conferral, but on 17 November 2025, the plaintiff's Counsel made an open offer, in effect, in their written outline that:

For the avoidance of doubt, provided that any stay application is filed before the end of 2025, the plaintiff will not contend that such application cannot be pursued by reason of the unconditional appearance of any defendant.

1. Despite that offer, the defendants pressed ahead with the hearing before me, insisting that withdrawal of the appearance was a precondition to the making of an application for the grant of a stay. Having regard to the decision of Gorton J in Yang, I do not accept that submission. In light of the proper concession made in the plaintiff's submissions, there was no reason why the defendants' solicitors or Counsel could not have conferred and agreed to proposed consent orders for the listing of the stay application without delay and otherwise dealing with the Summons.

1. In all of the circumstances, the Court will not exercise its discretion to permit the defendants to withdraw their appearance.
2. Further, the defendants were served more than four months ago. The delay, in circumstances where the defendants have refused to provide information about the dealings in trust property, is, I accept, to the prejudice of the plaintiff. The defendants ought to be given a short period of time within which to bring any stay application. Accordingly, I intend to make orders requiring that the defendants file and serve any application for a stay, together with the affidavit material on which they rely by no later than 4.00pm on 8 December 2025, such application to be made returnable before me on 23 December 2025.
3. I will otherwise dismiss the defendants' application to withdraw their appearance.
4. The parties are directed to confer as to an appropriate form of order to give effect to these reasons. In the event the parties are unable to reach agreement about those orders, the matter will be listed for a brief further hearing and the parties will be required to set out their respective positions in short written submissions.

[1] Transcript of Proceedings (19 November 2025) 33.26-39.22.

[2] [2001] VSC 333 ('Pico').

[5] [1988] HCA 32; (1998) 165 CLR 197.

[9] Ibid, [20] citing Schweitzer v Kroner Verwaltungs GMBH & Igedo Internationale Modemesse Kronen GMBH & Co (Supreme Court of Victoria, Chernov J, 24 June 1997).

[10] Ibid, [20] quoting National Commercial Bank v Wimborne [1979] 11 NSWLR 156, [176].

[11] La Donna Pty Ltd v Wolford AG [2005] VSC 359 [23]-[26] (Whelan J) ('La Donna'); ACD Tridon Inc v Tridon Australia Pty Ltd [2002] NSWSC 896 ('ACD Tridon').

[15] [2002] NSWSC 896, [44]-[45].

[16] The Sayers Road Property and the Derrimut Road Property are the properties subject of the Written JV Agreement.

[17] [2021] VSC 740.

[18] [2010] NSWCA 196 (Spigelman CJ).

[19] Transcript of Proceedings (19 November 2025) 6.24-7.2.

[20] [2012] NSWSC 1029, [37(3)].

[21] Outline of submissions filed 12 November 2025, [39]; Transcript of Proceedings (19 November 2025) 40.24-40.29.

[22] Global Partners Fund Limited v Babcock & Brown Limited (in liq) [2010] NSWSC 270, [131].

[23] Transcript of Proceedings (19 November 2025) 23.20-24.21.

[24] [2021] VSC 740, [40]-[41].

[25] Affidavit of Stefan Saponja filed 22 September 2025, [20(e)].

[26] Garsec v His Majesty The Sultan of Brunei (2008) NSWCA 211.

[27] Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2007] VSC 450, [33] (Hollingworth J) citing Crown Joinery v Lyleho [2007] VSC 214 and Verduci v Macquarie Bank Limited [2003] VSC 77.

[28] Supreme Court of Victoria, SC CC 1 Commercial Court, 19 September 2025, part 8.1.

[29] Civil Procedure Act 2010 (Vic), ss 10-14, 16, 19-20, 22, 23 and 25.