Plaintiffs v Defendant

PRACTICE AND PROCEDURE - Application for summary judgment by defendant - Civil Procedure Act 2010 (Vic) s 62 - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 22.16 - Whether plaintiffs have a real prospect of success - Where proceeding concerns important and difficult issues of fact and/or law - Application for summary judgment denied.

PRACTICE AND PROCEDURE - Application to strike out statement of claim - Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.02 - Where amended statement of claim held to disclose a cause of action as the claim has a real prospect of success - Application for strike out denied.

1 By summons filed dated 28 May 2025, the plaintiffs seek:

(a) leave to file and serve its proposed amended statement of claim ("PASOC") under r 36.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ("Rules"); and

(b) leave to join a director of the defendant, Mr Hua Wang ("Mr Wang"), as the second defendant to the proceeding under rr 9.02(b) and/or 9.06(b) of the Rules.

2 By summons filed 24 March 2025, the defendant seeks:

(a) summary judgment under s 62 of the Civil Procedure Act 2010 (Vic) ("CPA") and r 22.16 of the Rules on the ground that the plaintiffs' claim has no real prospect of success; or

(b) alternatively, to strike out the plaintiffs' statement of claim dated 7 July 2024 ("SOC") under r 23.02 of the Rules on the ground that it does not disclose a cause of action against the defendant.

3 Both summonses were returnable at the same hearing on 30 May 2025. While the parties set out to address the plaintiffs' summons first, the parties engaged in wide ranging submissions and effectively addressed both summonses simultaneously. At the conclusion of the hearing, both counsel acknowledged that they had no more submissions to make on either summons.

4 Although the defendant's summons refers to the strike out of the plaintiffs' SOC dated 7 July 2024, at the hearing the parties addressed the issues of summary judgment and strike out on the basis of the plaintiffs' PASOC, rather than the existing SOC.

(a) the Court grants leave to the plaintiffs to file and serve an amended statement of claim in the form of the PASOC;

(b) the plaintiffs have leave to join Mr Wang as second defendant to the proceeding; and

(c) the defendant's summons filed 24 March 2025 should be dismissed.

6 The proceeding relates to the Heritage Golf and Country Club ("Golf Club"). The Golf Club is located upon land which comprises numerous titles,[1] but can be broadly divided into two parts:

• a hotel which includes 102 strata titled rooms and suites ("Hotel"); and
• land surrounding the Hotel ("Golf Club Land") on which stands certain facilities including a clubhouse, recreational facilities and golf courses ("Golf Club Facilities").

(a) was Yarra Valley Golf Pty Ltd ("Yarra Valley") between 22 September 1999 and 17 April 2012;

(b) was Golden Heritage Golf Pty Ltd ("Golden Heritage") between 17 April 2012 and 23 April 2014;[2] and

(c) has been HGC Properties Pty Ltd ("HGC Properties") since 23 April 2014.

8 In June 2000, Yarra Valley leased the Golf Club Land to The Heritage Golf & Country Club Pty Ltd ("HGCC") for 298 years. Thereafter, until HGCC's liquidation in around March 2024, HGCC was the lessee of the Golf Club Land and managed and operated the Golf Club.

9 From April 2014, HGCC was a wholly owned subsidiary of HGC Properties.[3]

10 Mr Wang, whom the plaintiffs seek to join as second defendant to the proceeding, was a director of HGC Properties from October 2018 to June 2023 and again from February 2025 to present.[4] Previously, Mr Wang's wife, Ms Xiao Yan Bao, was a director of HGCC Properties from October 2014 to September 2018.[5]

11 Mr Wang has been a director of the defendant from May 2020 to June 2023 and from February 2025 to present.

12 The plaintiffs are the registered proprietors of some of the rooms in the Hotel. They also claim that, upon their acquisition of the rooms, they obtained interests in a registered managed investment scheme ("Scheme") pursuant to a prospectus lodged with the Australian Securities and Investment Commission in September 1999 ("Prospectus"). The Prospectus contained statements to the effect that investors in the Scheme would acquire, inter alia, freehold title to rooms or suites (subject to a long-term lease and management agreement with the hotel operator) and membership of the Golf Club ("Heritage Lodge Membership"). This category of membership entitled them to use certain Golf Club Facilities free of charge and to share profits from the Hotel's accommodation business ("Membership Rights"). The responsible entity of the Scheme was originally YVG Management Pty Ltd and is currently Vasco Trustees Limited.

13 Since the liquidation of HGCC in around March 2024, the defendant has managed and operated the Golf Club.

14 In April and May 2024, the defendant sent emails to Hotel room owners to the effect that:

(a) Heritage Lodge Memberships would end on 30 April 2024;

(b) the defendant had made a decision no longer to recognise Heritage Lodge Memberships; and

(c) the defendant would no longer grant access to Golf Club Facilities to holders of Heritage Lodge Memberships free of charge.

15 By summons filed 8 July 2024, the plaintiffs unsuccessfully sought an interlocutory injunction restraining the defendant from interfering with their asserted rights to use Golf Club Facilities without payment.

16 There is no dispute between the parties as to the applicable legal principles in the two applications before me.

17 Under r 36.01 of the Rules, the Court may order that the plaintiffs have leave to amend their statement of claim for the purpose of determining the real question in controversy between the parties, correcting defects or errors or avoiding multiplicity of proceedings.[6] Rule 36.04 also allows the plaintiffs to amend their statement of claim by leave of the Court or with the consent of all other parties.[7]

18 Justice Connock set out the principles relating to applications to amend pleadings in Pentridge Village Pty Ltd (in liq) v Capital Finance Australia Ltd (No 2).[8] To summarise his Honour's comments:

(a) pleadings are a means to ensure that the real issues of controversy are raised in a way that is procedurally fair to both plaintiff and defendant, allowing each to properly prepare and articulate their case, on clear notice of allegations and defences. On this basis, absent extraordinary circumstances, leave to amend will be granted;

(b) the fact that an amendment has no real prospect of success at trial will be a highly relevant factor. While the Court will not engage in an examination of the merits of the foreshadowed case, an amendment will not be allowed if it is futile because it is obviously bad in law or would be liable to be struck out due to defects as a pleading;

(c) the Court must engage with the CPA's provisions in balancing the competing interests of the parties and those of the administration of justice more generally;[9] and

(d) other considerations include:

(i) whether the amendment will cause substantial delay;

(ii) the extent of wasted costs to be incurred;

(iii) whether the amendment will cause irreparable unfair prejudice;

(iv) case management concerns arising from the stage in the proceeding when the amendment is sought, including efficient use of the Court's time and whether inefficiencies may arise from vacation or adjournment of trials;

(v) public confidence in the judicial system; and

(vi) the explanation given for seeking the amendment at the stage when it is sought.

19 Rule 9.02(b) allows the joinder of a party where the Court, before or after the joinder, gives leave to do so.[10]

20 Rule 9.06(b) gives the Court the power to order the joinder of a party in certain circumstances.[11] Elliott J summarised the relevant test in S Pirrie Equities Pty Ltd v Venetian Media Group Pty Ltd:

1. Rule 9.06(b) sets out two alternative tests for when a party may be joined to a proceeding ...
2. Under either limb of r 9.06(b), ordinarily the merits or prospects of the claim sought to be brought against a party are not relevant to the question of whether they ought to be joined. However, where the claims made against a party that is proposed to be joined under r 9.06(b) are "obviously bad in law or futile" or have 'no real prospects of success', the application will usually be refused.
3. The first test, which is contained in r 9.06(b)(i), is narrow and contains within itself two alternative limbs:

(1) "A person who ought to have been joined as a party". Under this limb, the party seeking to join a party must prove that their presence is required to enable the proceeding to continue...

(2) "A person ... whose presence before the Court is necessary". This limb authorises the court to add as a party a person who could have been joined originally (in accordance with r 9.02 of the Rules). The person need not be necessary in the sense that the court will not allow the proceeding to continue unless the person is made a party, rather, they need only be necessary in that their presence will aid in achieving finality and avoiding a multiplicity of proceedings ...

1. Rule 9.06(b)(ii) was introduced to overcome the limitations of r 9.06(b)(i), and the test it sets out is therefore much broader in scope ...
2. An applicant who seeks to invoke the court's jurisdiction under r 9.06(b)(ii) must prove that:

(i) there are two entities namely the person to be added as a party and a party to the proceedings;

(ii) between the two entities there may exist a question arising out of or relating to or connected with any claim in the proceeding;

(iii) it is just and convenient to determine that question between the proposed party and the other party as well as between the parties to the proceeding.

1. However, even if the above elements are established, the court retains a discretion as to whether or not to make an order under r 9.06(b)(ii).[12]

21 The Court may give summary judgment in favour of the defendant if it is satisfied that the plaintiffs' claim or part of the claim has no real prospect of success.[13]

22 The relevant test was summarised by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd ("Lysaght"):

(a) the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a "real" as opposed to a "fanciful" chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the "hopeless" or "bound to fail test" essayed in General Steel;

(c) it should be understood, however, that the test is to some degree a more liberal test than the "hopeless" or "bound to fail" test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[14]

23 The Court may order the whole or part of the plaintiffs' pleading to be struck out if the pleading, or any part of it, does not disclose a cause of action.[15]

24 In contrast to the summary judgment application, which requires the Court to consider the merits of the proceeding, the strike out application requires the Court to look only at the sufficiency of the pleading. No affidavit material can be used in support of the application.[16]

25 The PASOC provides considerable detail in support of the plaintiffs' case and also introduces some new claims.

26 The PASOC introduces details of obligations of the defendant said to arise under the Yarra Ranges Planning Scheme ("Planning Scheme"), Amendment L145 to the Planning Scheme ("Amendment L145") and Accommodation Management Provisions ("AMPs") and amended AMPs ("Amended AMPs") prepared under the Planning Scheme:

(a) Planning Scheme - the use and development of the land on which the Clubhouse, Carpark, Retreat and Spa and St John Golf Course are situated is regulated by the Planning Scheme.[17]

(b) Amendment L145 - this amendment to the Planning Scheme was approved by the Minister for Planning in March 1995 and introduced site specific provisions to enable the development of the Golf Club. Amendment L145 required management provisions to be prepared for the accommodation at the site.

(c) AMPs - in 2013, the then-owner of the Golf Club Land, Golden Heritage, prepared AMPs pursuant to Amendment L145. The AMPs were endorsed by the Yarra Valley Shire Council as responsible authority in May 2013. The AMPs referred to Golden Heritage as "GHG", which was defined as "Golden Heritage Golf Pty Ltd and its successors in title", and provided that, inter alia:

(i) upon approval by the relevant responsible authority, the AMPs would operate as requirements enforceable under the Planning Scheme against all owners and occupiers of land forming part of the Heritage Golf and Country Club from time to time;

(ii) each of the 102 lots in the Hotel shall have attached to it the right to at least one Heritage Golf & Country Club Membership; and

(iii) Golden Heritage shall not levy upon the owner of a lot in the Hotel or their relevant designees any annual dues for the right to play golf, green fees in respect of playing rights or access to the Heritage Golf & Country Club Facilities.

(d) Amended AMPs - Golden Heritage prepared Amended AMPs in around August 2015 which contained terms to similar effect as those in the AMPs. Additional terms included:

(i) Golden Heritage must issue a Heritage Golf & Country Club Membership subject to the Conditions of Membership to any owner of a lot in the Hotel who is not already a member within 14 days of receiving notice of the same;

(ii) the Conditions of Membership were those contained in Schedule 1 to the Amended AMPs or as amended from time to time; and

(iii) the Conditions of Membership provided, inter alia, that each title to a Heritage Lodge Unit may have attached to it one Heritage Lodge Membership at the Manager's discretion, which ran with the title to the Heritage Lodge Unit and cannot be severed from the title, and no Heritage Lodge Member nor their relevant designee would be required to pay annual dues.

27 The PASOC elaborates on what it calls "individual Heritage Lodge Membership Contracts" which Heritage Lodge Members are said to enter into with the manager of the Heritage Golf Club upon their acquisition of an interest in the Scheme. The terms of the contracts are said to be partly implied and partly contained in a number of documents, including the Scheme Constitution, the Contract of Sale under which the Heritage Lodge Member acquires their interest in a Hotel room, documents providing for the transfer to the member of a Heritage Lodge Membership and Heritage Lodge Membership Rights and various iterations of documents titled "Membership Plan" and "Conditions of Membership".[18] The contracts include terms to the effect that:

(a) four categories of membership are available: Private Membership, Life Membership, Corporate Membership and Heritage Lodge Membership;

(b) members holding Life Membership ("Life Members") and members holding Heritage Lodge Membership ("Heritage Lodge Members") are entitled to nominate designees to assume rights to use, and introduce guests to use, Heritage Lodge Facilities without the need to pay dues;

(c) a Heritage Lodge Membership may be attached to each title to a Heritage Lodge Unit at the manager's discretion, such Heritage Lodge Membership running with the title and unable to be severed; and

(d) any change in the Membership Plan from prior plans for the offering of memberships in the Heritage Golf Club will not affect the pre-existing rights of members who acquired their membership before the change takes effect with respect to transfer of Membership Rights.

28 In oral submissions, counsel for the plaintiffs explained their position that the individual Heritage Lodge Membership Contracts exist between members of the club and any entity which is from time to time a proprietor or manager of the club, and this contractual relationship is essential to the very existence of the club. If an entity acts in the capacity of proprietor or manager, it is obliged to do so under and in accordance with the pleaded contracts.[19]

29 The SOC states that the rights and liabilities of HGCC under the lease were assigned and novated to the defendant, but does not clearly explain how this would give rise to an obligation on the part of the defendant to honour Membership Rights.

30 The PASOC expands on the SOC by alleging that the lease requires the tenant, inter alia, to comply with relevant laws and requirements of authorities (including the Planning Scheme and Amendment L145), the tenant's business (being the operation and management of the Heritage Golf Club) and the use or occupation of the demised land and premises solely for the purposes of a golf course and the operation of a golf club. The lease is also said to prohibit the tenant from transferring the lease, subletting, licensing or otherwise parting with possession of the land.

31 The PASOC elaborates on the Deed Poll executed by Golden Heritage around May 2011 as part of its purchase of Yarra Valley's assets between February 2010 and May 2011. The Deed Poll is said to contain terms to affirm the plaintiffs' Membership Rights, including:

• assurances given by Golden Heritage that, as the prospective holding company of HGCC, it would facilitate and support, and not undermine, HGCC's fulfilment of its contractual obligations to members; and
• Golden Heritage undertook to, and would cause HGCC, to honour commitments previously made to members for the continued recognition of all categories of membership of the Golf Club, including Heritage Lodge Memberships, the continuation of the rights of members, including access rights without the need to pay annual dues.

HGCC's liability to honour Heritage Lodge Memberships and Membership Rights

32 The PASOC states that, as operator and manager of the Golf Club, HGCC was liable to honour, and between about June 2000 and March 2024, did honour the Heritage Lodge Memberships in accordance with:

• the lease;
• the Planning Scheme, including Amendment L145;
• the AMPs and Amended AMPs; and
• the individual Heritage Lodge Membership Contracts.

33 The PASOC provides details of various individuals said to be affiliated with the defendant, including the proposed second defendant, Mr Wang, his wife Xiao Yan Bao, his two sons Zhendong Wang and Zhennan Wang and his business associate Haojie Chen. Xiao Yan Bao is said to have been the sole director of HGCC between October 2014 and September 2018, sole director of HGC Properties between October 2014 and October 2018 and a director of HGC Properties alongside Mr Wang between October 2018 and October 2020.

(a) Mr Wang has maintained ultimate control over the affairs of Jeshing, HGCC, HGC Properties and The Wang Holdings Group Pty Ltd ("Wang Entities");

(b) Mr Wang's family members and Haojie Chen have acted in accordance with his directions and instructions in relation to the affairs of the Wang Entities; and

(c) the Wang Entities each function as Mr Wang's alter ego, agent or proxy.

(a) by around early 2024, Mr Wang formed an intention to defeat and deprive Heritage Lodge Members of their Membership Rights by:

(i) procuring the transfer of the Golf Club Facilities and management of the Golf Club from HGCC to another entity that was not bound by Heritage Lodge Membership Contracts; and

(ii) placing HGCC into liquidation, converting the Membership Rights into claims provable in the liquidation; and

(b) on March 2024, Mr Haojie Chen, acting at the direction of Mr Wang, purported on behalf of HGCC to enter an oral agreement ("Oral Agreement") with HGC Properties and the defendant to assign, transfer and convey the Golf Club Facilities to the defendant ("Purported Jeshing Transfer").

36 The PASOC says that, if HGCC was under administration at the time of the Purported Jeshing Transfer, the power to deal with its property was exclusively a power of the administrator under ss 437A or 477 of the Corporations Act 2001 (Cth) ("Corporations Act"). If the company was in liquidation at the time, its sole director, Haojie Chen, could not deal with the company's assets without the liquidator's written consent under s 198G of the Corporations Act, which consent had not been obtained.

Assignment and novation to Jeshing of obligations

37 Alternatively, the PASOC says that if the Purported Jeshing Transfer was valid and effective, then the rights and liabilities of HGCC were assigned and novated to the defendant by agreement or by operation of the doctrine of privity of estate. This is said to include HGCC's liability to observe and honour the Heritage Lodge Memberships and the Heritage Lodge Membership Rights under the:

(a) lease;

(b) Planning Scheme, including Amendment L145;

(c) Amended AMPs;

(d) individual Heritage Lodge Membership Contracts; and

(e) Undertaking.

Section 172 of the Property Law Act 1958 (Vic)

38 Further or alternatively, the PASOC says that, if the Purported Jeshing Transfer was valid and effective, it is voidable and liable to be set aside under s 172 of the Property Law Act 1958 (Vic) ("s 172") as an alienation of HGCC's property with intent to defraud the Heritage Lodge Members of the benefit of their Membership Rights, which alienation was not for valuable consideration, in good faith and without notice of the intent to defraud creditors.

39 The PASOC provides further detail on the written undertaking ("Undertaking") provided in around September 1999 by Yarra Valley (the then-owner of the Golf Club Land), to the effect that Yarra Valley would provide purchasers of interests in the Scheme with Heritage Golf Club memberships on the basis set out in the Prospectus. The PASOC says that the Undertaking is a promise held by the responsible entity of the Scheme from time to time on trust for the benefit of current and future members of the Scheme and is enforceable in equity against the promisor and its successors.

Summary of the plaintiffs' proposed amended case

40 To summarise, the plaintiffs' case as set out in the PASOC appears to comprise the following elements:

(a) HGCC's rights and liabilities - HGCC was bound to observe the plaintiffs' Membership Rights under the lease, the Planning Scheme, the Amended AMPs, the individual Heritage Lodge Membership Contracts and the Undertaking;

(b) the purported termination of plaintiffs' rights was ineffective - the defendant's purported termination of the Membership Rights was invalid and ineffective because:

(i) the purported transfer of HGCC's rights and liabilities to the defendant either did not take place, or was ineffective and invalid by operation of ss 437A, 477 and/or 198G of the Corporations Act;

(ii) alternatively, if the Purported Jeshing Transfer was effective and valid, part of the consideration for the transfer was the assumption by the defendant of HGCC's liability to observe and honour Membership Rights;

(iii) further or alternatively, the Purported Jeshing Transfer is voidable and liable to be set aside under s 172; and

(iv) the Undertaking is held on trust by the responsible entity of the Scheme from time to time for the plaintiffs, and is enforceable against the successors to Yarra Valley as the owner of the land.

41 The plaintiffs say that their proposed amendments are for the purpose of identifying the real questions in controversy between the parties. They say that granting leave to amend would be in the interests of justice because, inter alia:

• the amendments are sought at this stage of the proceeding because they substantially arise out of matters raised in particulars provided by the defendant on 2 April 2025, the affidavit of Terrence Cooley sworn 23 April 2025 and filed in support of the defendant's summons and documents obtained by the plaintiffs on subpoena in March 2025 (which were voluminous and required time to review);
• the PASOC contains substantially the same alleged facts and factual foundations as raised in the SOC, such that the factual framework remains essentially unchanged;
• the amendments provide further particulars and clarifications to various allegations in the SOC; and
• the grant of leave would not result in the vacation of any trial date already fixed, and would not result in any apparent prejudice to be suffered by the defendant.

42 The defendant opposes the plaintiffs' application to amend on the basis that the claim set out in the PASOC, as is the case for the claim set out in the SOC, has no real prospect of success. The crux of the defendant's argument is that there was no privity of contract between the parties which would enable the plaintiffs' claim in contract to be argued. In this regard, the defendant submits:

• the defendant was not party to any of the documents by which the plaintiffs say that it is bound, namely the Scheme Constitution, the Prospectus, the Undertaking, the Heritage Golf Club Membership Rules and the Members' Heritage Golf Club Contracts;
• the defendant did not grant the Heritage Lodge Memberships, own or operate the hotel or the Scheme, issue the Prospectus, give the Undertaking or enter into the Members' Heritage Golf Club Contracts;
• there is no evidence for the plaintiffs' assertion that the rights and liabilities of HGCC under the Undertaking and Contracts were assigned and novated to the defendant. No instrument of assignment or novation has been pleaded;
• the terms of the Undertaking have not been pleaded, nor has the Undertaking has been disclosed as a critical document;
• no contracts have been pleaded, or disclosed as critical documents, which bind the defendant;
• the lease to HGCC ceased upon the liquidation of that company, and since March 2024, the land has been licensed by HGC Properties to the defendant under an oral revocable licence;
• the plaintiffs have not explained how the Undertaking would bind the defendant in the absence of consideration; and
• the contract of sale of the land by Golden Heritage to HGC Properties discloses no encumbrances of the kind alleged by the plaintiff.

43 Counsel for the defendant also made certain submissions relating to the case of Australian Securities and Investments Commission v Letten ("Letten"),[20] including that:

• as the Scheme was wound up due to its status as an unregistered managed investment scheme in the case of Letten, the original contractual rights that the plaintiffs had vis-à-vis the then-manager of the Scheme, YVG Management, and the written undertaking by Yarra Valley were extinguished;[21]
• the documents which the plaintiffs allege comprise the written portion of the individual Heritage Lodge Membership Contracts, including the membership rules, all pre-date the Letten decision;[22] and
• in February 2011, upon buying the Golf Club Land and the shares in HGCC, Golden Heritage executed a Deed Poll in favour of Scheme members. However, this was merely a unilateral promise on the part of Golden Heritage to continue recognising the Membership Rights conferred to members under the Scheme. It did not resurrect those rights, which had been extinguished under Letten.[23]

44 In relation to the s 172 claim, counsel for the defendant asserted that:

(a) there were legitimate commercial reasons for the winding up of HGCC, and the Court should not infer an intent to defraud from the liquidation of HGCC as alleged by the plaintiffs. HGCC's income statement for the year ended 30 June 2023 shows a net loss of $122,186 for the 2023 financial year and a net loss of $715,938 for the preceding financial year.[24] HGCC's balance sheet for the year ended 30 June 2023 also shows that, at 30 June 2023, the company's net asset position was negative $3,728,901;[25]

(b) the PASOC, insofar as it concerned the joinder of Mr Wang, did not sufficiently particularise specific dishonest conduct of Mr Wang. What was required was particularisation of specific dishonest conduct; and

(c) the plaintiffs had not explained how they had standing under s 172 as creditors of HCGG.[26]

Real issues in dispute and just resolution of the proceeding

45 In my view, the amendments allow for the identification of real issues in dispute and the just resolution of the proceeding. I say this because:

(a) the factual matrix of the proceeding is complex, with:

(i) a timeline of events extending back to the 1990s and a significant number of entities entering and exiting the picture, playing different roles across that time period;

(ii) numerous documents (and iterations of those documents) apparently relevant to the rights allegedly infringed by the defendant; and

(iii) important factual disputes, including those relating to the termination of the lease and the transfer of HGCC's assets and liabilities from HGCC to the defendant;

(b) given that the facts are not straightforward, it is imperative that the plaintiffs elaborate, as clearly as possible, their version of events and the legal bases for their claim. The PASOC purports to do so by sequencing the plaintiffs' case in a more logical manner and elaborating upon various aspects of the SOC. This will enable the Court to more easily understand the facts of the matter, facilitating the efficient use of judicial and administrative resources and reducing the need for parties to spend time explaining the facts to the Court. It will also help to ensure that the defendant has proper notice of, and can more directly address, the allegations brought against it;

(c) the foundational issue in dispute is whether the defendant is liable to honour the alleged Membership Rights of the plaintiffs. The amendments essentially are directed towards this point;

(d) the defendant has not argued that it will suffer some irreparable prejudice if the amendments are allowed. There has been no complaint that, for example, the plaintiffs seek to change their case in some dramatic fashion which would be difficult or unfair for the defendant to now respond to. Indeed, in putting forward his view that the claim set out in the PASOC has no real prospect of success, counsel for the defendant noted that the amendments do not actually change the plaintiffs' position;[27]

(e) from a case management perspective, there is no suggestion that the amendments will result in inefficiencies arising from, for example, vacation or adjournment of a trial. Rather, by more precisely identifying and particularising the plaintiffs' claim, the amendments will facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in accordance with the overarching purpose of the CPA;[28]

(f) the amendments will not cause any substantial delay to the proceeding, given that no trial date has yet been fixed and the parties were still exchanging seemingly important documents as of April 2025; and

(g) many of the amendments are required to address information only recently made available to the plaintiffs, namely documents provided by the defendant in April 2025 and other documents obtained by the plaintiffs in March 2025 by subpoena. This includes particulars of the defence provided to the plaintiffs on 2 April 2025 and the affidavit of Terrence Cooley, an employee of the defendant, sworn 23 April 2025. To the extent that the amendments have caused or will cause any delay, this is largely explicable by the defendant's delay in providing the documents requested. In relation to this, I note:

(i) in October 2024, the plaintiffs' solicitor requested certain key documents from the defendant's solicitor, including documents relating to the assignment and novation of rights and liabilities of HGCC to the defendant;

(ii) on 31 October 2024, I made orders requiring the parties to exchange, to the extent they had not already complied, documents required under r 29.01.1(3) of the Rules by affidavit of documents under r 29.04 by 2 December 2024;

(iii) notwithstanding those orders, the defendant's solicitor emailed the plaintiffs' solicitor a list of documents on 17 December 2024, and only served a sworn affidavit of documents on 31 January 2025. Due to discrepancies between the list of documents and the affidavit of documents, the defendant served a further affidavit of documents on 5 March 2025 addressing the discrepancies;

(iv) having reviewed the additional documents, on 12 March 2025 the plaintiffs' solicitor requested orders for the service of further particulars and better documents;

(v) on 31 March 2025, I made orders requiring the defendant to provide further particulars and documents to the plaintiffs. This included particulars of the terms of the agreement alleged by the defendant under which HGCC transferred and assigned its business and assets to the defendant. These orders were not complied with until 21 March 2025; and

(vi) on 23 April 2025, the defendant served the plaintiffs with the affidavit of Terrence Cooley sworn 23 April 2025.[29]

46 The defendant asserts that the PASOC should not be accepted as it has no real prospect of success. For reasons set out below, I consider that the plaintiffs' claim as set out in the PASOC has a real and not merely fanciful chance of success.

The individual Heritage Lodge Membership Contracts

47 In relation to the claim based on the individual Heritage Lodge Membership Contracts, the defendant says that the lack of privity between the parties is an insurmountable obstacle for the plaintiff. While there will be obvious evidentiary difficulties for the plaintiffs to overcome, I do not consider that the claim has no real prospect of success. This is because:

• the individual Heritage Lodge Membership Contracts are said to be partly implied and partly in writing. Insofar as other terms of the contracts are implied, the plaintiffs say that these are implied to give business efficacy to the contracts. For the most part, it seems that there are documents setting out the material terms of the alleged contracts;
• the plaintiffs will need to satisfy the Court of the existence of some transactional chain through which the alleged contracts came to bind the defendant. Insofar as this requires scrutiny of the sale and purchase of the Golf Club Land over the years, there are documents available to assist in the enquiry. Significantly more uncertainty arises from the last link in the transaction chain, namely the transfer of HGCC's assets and liabilities to the defendant, due to the oral nature of the purported transaction. Counsel for the plaintiffs pointed to draft management accounts for the defendant for the year ended 30 June 2023[30] and a general ledger report of the defendant for the period from July 2015 to June 2023[31] to suggest that either the purported transfer from HGCC to the defendant did not occur, or if it did occur, the defendant assumed HGCC's liabilities to the plaintiffs. To the extent that the details of the alleged Oral Agreement are missing, the defendant should presumably be able to fill these out;
• the plaintiffs directed the Court to a report of HGCC's liquidator dated 19 April 2024,[32] which is said to show that the liquidator was told by HGCC[33] that the business, assets and liabilities of HGCC, including the business of managing the golf course and the continued observance of the plaintiffs' Membership Rights, were assumed by the defendant;
• the defendant also noted the Court's decision in respect of the plaintiffs' failed injunction application in August 2024, to the effect that, in that application, the plaintiffs had not established a prima facie case that they had enforceable contractual rights against the defendant. However, since that decision, some changes have taken place which appear to support the plaintiffs' case. For instance:
  • in August 2024, there was no indication that the liabilities of HGCC had been assigned or novated to the defendant. Now, the defendant itself is arguing that an Oral Agreement took place between HGCC and the defendant, although what was transferred is now in dispute; and
  • the plaintiffs now have available to them documentary evidence said to contain the terms of the alleged contracts between them and the manager of the Golf Club, including the various iterations of the Conditions of Membership and Membership Plans.

48 Moreover, I note that, in addition to the claim based on the individual Heritage Lodge Membership Contracts, the PASOC also pleads other ways to establish the defendant's liability, including the lease, the Planning Scheme, AMPs and Amended AMPs and s 172. Though there will likely be overlaps in the evidence relevant to each of these issues, the plaintiffs need not prove each of them in order to ultimately succeed at trial. Moreover, I do not consider that the defendant has shown that each of them has no real chance of success.

49 In respect of the purchase of the land by HGC Properties, counsel for the defendant intimated that HGC Properties was not bound to observe the plaintiffs' alleged Membership Rights because, inter alia, the contract of sale did not state that HGC Properties assumed any liability or became bound by any covenant requiring it to honour those rights.[34] However, the plaintiffs' claim does not require HGC Properties to be liable or bound in this way. The plaintiffs' claim is predominantly based on the obligations of HGCC and the defendant rather than HGC Properties. I note, for example, that the plaintiffs have not sought to join HGC Properties as a defendant in this proceeding. I also note that the defendant has not asserted that, for example, the contract of sale of the land extinguished or otherwise affected HGCC and/or the defendant's alleged obligations vis-à-vis the plaintiffs. In other words, based on the defendant's submissions to date, what the contract of sale says should not impact the plaintiffs' case.

50 In oral submissions, counsel for the defendant asserted that the plaintiffs' Membership Rights were extinguished by reason of the Letten decision in 2010. But the plaintiffs argued that the Letten decision related to different unregistered investment schemes, not the registered Scheme of which the plaintiffs were members. An ASIC document dated 16 May 2023 indicates that the Heritage Lodge Scheme had been registered since September 1999 until the date of the extract.[35] The plaintiffs have a reasonable argument that the Scheme was not extinguished by the Letten decision.

51 Counsel for the defendant contended that the Deed Poll was also critical to the plaintiffs' case as it showed that the Membership Rights would not have continued but for someone unilaterally undertaking to recognise them. Otherwise, there would have been no need for the Deed Poll. Moreover, the defendant says that the Deed Poll binds only the party that entered it, Golden Heritage, and not HGCC, HCG Properties, Jeshing or anyone else. In relation to these points, I do not consider that the Deed Poll is as central to the plaintiffs' claim as the defendant argues. The PASOC does not plead the Deed Poll as a source of the defendant's obligations vis-à-vis the plaintiffs, nor claim that the Deed Poll binds the successors in title of Golden Heritage. The plaintiffs' claim does not require this. Instead, they argue that the Membership Rights have remained on foot through contracts alleged to exist between the plaintiffs and the manager of the Golf Club, the Planning Scheme and other documents.

The Planning Scheme, Amendment L145, AMPs and Amended AMPs

52 The Planning Scheme (including Amendment L145), AMPs and Amended AMPs are another limb of the plaintiffs' case. These are said to be additional sources of HGCC's obligation to observe and honour the Heritage Lodge Memberships and the Heritage Lodge Membership Rights, independent of the individual Heritage Lodge Membership Contracts, and are said to constitute liabilities of HGCC. The plaintiffs argue that, if the Purported Jeshing Transfer was valid and effective, these liabilities would have been assigned and novated to the defendant.

53 The Planning Scheme and Amendment L145 purport to govern the use, development, protection and conservation of the Golf Club Land. I also note that the AMPs and Amended AMPs are said to be enforceable under the Planning Scheme against the successors in title of Golden Heritage. Although the plaintiffs do not appear to be seeking relief against HGC Properties, which is not a party to this proceeding, the fact that the AMPs and Amended AMPs have been expressed in this way may indicate that the rights they specify were not intended to be extinguished upon a new owner taking over the land. Moreover, the Planning Scheme, AMPs and Amended AMPs provide a basis for the plaintiffs' claim that is distinct from the individual Heritage Lodge Membership Contracts and ostensibly does not face the same privity-related issues. This appears to support the plaintiffs' case.

54 As for their claim regarding the Planning Scheme, the plaintiffs argue that HGCC had an obligation to observe the plaintiffs' Membership Rights under the lease which, if the Purported Jeshing Transfer was valid and effective, would have been assigned and novated to the defendant.

55 The defendant's position appears to be that the lease was extinguished upon the liquidation of HGCC on 27 March 2024.[36] The defendant did not explain the legal basis for this position. The plaintiffs argue that, by virtue of the doctrine of privity of estate, the lease remains on foot between the defendant as lessee and HGC Properties as lessor. The plaintiffs also argue that the lease would not be extinguished as asserted by the defendant unless HGCC's liquidator disclaimed it in accordance with the principles explained in Willmott Growers Group Inc v Willmott Forests Ltd (in liq).[37] I note that at this stage, beyond the assertions of Mr Cooley in his affidavit sworn 23 April 2025, there does not appear to be much evidence supporting the defendant's purported termination of the lease. I therefore consider that the plaintiffs' argument has a real prospect of success.

56 In relation to the s 172 claim, counsel for the defendant submitted that there was a bona fide reason for the liquidation of HGCC arising from its inability to pay its debts. He pointed to the negative total liabilities and income position of HGCC as at 30 June 2023. However, I nonetheless consider that the plaintiffs' s 172 argument has a real prospect of success for a few reasons:

(a) in oral submissions, counsel for the defendant appeared to raise some complaints about the way in which the s 172 claim was pleaded. However, when asked what the pleading should have said, counsel responded that the issue was that the directors of HGCC had a bona fide reason for winding up the company.[38] Counsel did not argue, for example, that the s 172 claim was pleaded in a vague or confusing manner that was impossible to respond to, or that the defendant would suffer some prejudice if required to respond to the claim as currently pleaded;

(b) the plaintiffs pointed to authority to the effect that the requisite intention to defraud under s 172 may be inferred in certain circumstances, such as where a company's insolvent transactions have the effect of removing assets which could be used to meet creditors' claims.[39] This will assist the plaintiffs in proving their case;

(c) the report of HGCC's liquidator dated 19 April 2024 indicates that, at the time of the report, HGCC's major creditor was a related party, the defendant, to whom it owed some four million dollars.[40] A similar story emerges from the company's balance sheet as at 30 June 2023, which shows that the company's liabilities as at 30 June 2023 and 30 June 2022 were largely comprised of loans from related entities, including loans owed to "Jeshing Property Management" amounting to $7,181,310 and $5,524,816 at those dates respectively.[41] Upon liquidation, the assets of HGCC would have gone to benefit companies controlled by Mr Wang and, indirectly, Mr Wang himself;

(d) HGCC's balance sheet as at 30 June 2023 shows that at that date, the company was owed $5,548,321 by a related entity known as "SKW Family Trust".[42] The connection between this entity, the defendant and Mr Wang is not entirely clear at present. However, although the loan appears on the balance sheet as the company's most substantial single asset as at 30 June 2023, it does not appear in the liquidator's report of February 2024[43] and the defendant has provided no explanation for its absence;

(e) at the time of HGCC's liquidation, its only material creditor was the defendant. Assuming both HGCC and the defendant were controlled by Mr Wang, as the plaintiffs claim, it is not immediately clear what practical purpose was served by winding up the company at this time;

(f) the period of time between the purported Oral Agreement and the alleged interference with the plaintiffs' rights was short, regardless of whether the Oral Agreement took effect in February or March 2024; and

(g) the defendant says that the plaintiffs have not shown that they are creditors within the meaning of s 172. Counsel for the plaintiffs asserted that they are creditors for the purposes of s 172 because, on HGCC's liquidation, their contractual rights as against HGCC gave rise to claims to damages which arose out of pre-liquidation circumstances, such that they had debts provable in the liquidation of HGCC.[44] Counsel for the defendant did not make any submissions in response to this allegation. I am inclined to consider that, at present, the plaintiffs' standing under s 172 does not appear to be an insurmountable obstacle for their claim, noting that in considering statutory provisions equivalent to s 172 in other jurisdictions, other courts have said that the provision should be given a liberal construction in effecting the purpose of suppressing fraud.[45]

57 The plaintiffs plead the Undertaking as a source of HGCC's rights and liabilities which, if the Purported Jeshing Transfer was valid and effective, were assigned and novated to Jeshing. In this respect, the defendant asserted that the terms of the Undertaking have not been pleaded and the document has not been disclosed, and it is unclear how it would have come to bind the defendant. The defendant is correct to question how the Undertaking would bind the defendant, in circumstances where the PASOC pleads that the Undertaking is enforceable against Yarra Valley as owner of the land and its successors. It is not immediately clear how the defendant would be a successor to Yarra Valley, as the defendant does not own the land. However, I do not consider that these issues are fatal to the plaintiffs' claim, as the plaintiffs also rely on other documents as sources of the defendant's obligations, such as the individual Heritage Lodge Membership Contracts, the Planning Scheme and the AMPs and Amended AMPs.

58 Separately, the plaintiffs also seek relief in equity in relation to the Undertaking by what counsel referred to as "the doctrine of promise of a trust". I note that there are some difficulties with this claim:

(a) counsel for the plaintiffs admitted that the claim rests on a "troubled, difficult doctrine", and that the claim has only been included to account for the contingency that the claim in contract fails. Impliedly, it appears to be a means by which the plaintiffs seek to bypass the lack of privity that may otherwise affect the claim in contract;

(b) privity of contract is a doctrine which is both settled and fundamental.[46] Great care is to be taken in creating exceptions to the doctrine, as the growth of exceptions without an underlying rationale can overwhelm a coherent rule;[47]

(c) in their written submissions, the plaintiffs referred to the case of Trident General Insurance Co Ltd v McNiece Bros Pty Ltd ("Trident").[48] Trident is one of the rare cases where a court has assented to an exception to the doctrine of privity. It occurred in the specific context of an insurance contract, which is quite different from the present case;

(d) Hobart International Airport Pty Ltd v Clarence City Council ("Hobart International Airport")[49] can also be distinguished because in that case, a third party to a lease sought to obtain declaratory relief as to the meaning and effect of the lease. In this case, the plaintiffs seek declaratory relief in respect of a unilateral Undertaking. The plaintiffs have, at present, made no submissions as to why the principles set out in Trident and Hobart International Airport would be applicable here;

(e) there is no suggestion that there was some declaration of trust separate from the terms of the Undertaking on which the plaintiffs can now rely;[50]

(f) in these circumstances, the plaintiffs will need to identify from the terms of the contract an intention to create a trust.[51] I note that the plaintiffs do not presently have a copy of the written Undertaking to refer to; and

(g) if the Undertaking was, as the plaintiffs assert, enforceable against the successors to Yarra Valley, the plaintiffs should be seeking relief from HGC Properties, not the defendant. HGC Properties is not a party to this proceeding.

59 Notwithstanding the obvious difficulties of the claim, however, it is not possible to say that the argument has no real prospect of success without reference to the terms of the document alleged to give rise to the trust. The particulars to paragraph 67 of the PASOC state that a copy of the Undertaking will be provided after discovery. As such, while at present there are some obstacles affecting this cause of action, I am not inclined to rule that it has no real prospect of success.

60 For the preceding reasons, I would grant the plaintiffs' application for leave to amend their statement of claim in the form of the PASOC.

61 Both parties noted that the PASOC does not seek any relief against Mr Wang.

62 In such circumstances, the defendant submits that it is inappropriate to join Mr Wang only to answer an allegation of fraud put against him.[52] However, counsel for the defendant also noted that, as he did not represent Mr Wang, he could not speak on Mr Wang's behalf.[53]

63 On the other hand, the plaintiffs contend that the joinder of Mr Wang is appropriate in light of their new claim based on s 172.

64 I accept the plaintiffs' argument that it would assist the Court's determination of the s 172 claim if Mr Wang is joined as second defendant to the proceeding. In this regard, I refer to Sweeney J's comments in Re Mannella; Ex parte Official Trustee in Bankruptcy v Giorgio regarding an equivalent statutory provision in the Bankruptcy Act 1966 (Cth):

In the present case the bankrupt had not been made a respondent to the application.

The situation which arose here shows the wisdom of making a bankrupt a respondent in a case such as the present. It is very likely that a trustee who is considering whether he should make an application of this character will consider it wise to apply for the examination of the bankrupt pursuant to s 69. When such an examination is held, and the trustee decides to make an application to the court, he commonly seeks to rely upon the transcript of the examination. Subsection (20) provides a statutory warrant for his doing so, where the bankrupt is made a party to the application. It is also quite common to find that the bankrupt and the disponee of the property make common cause and may be represented by the one counsel. In such cases, where the trustee bears the burden of proof that there was actual fraud, that is an actual intention by the bankrupt to defraud creditors, it will be of assistance to the court if the trustee makes him a party so that, if he has an answer to the allegation, he may have an opportunity of presenting it.[54]

65 I consider that, between the plaintiffs and Mr Wang, there may exist a question arising out of, or related to, the plaintiffs' s 172 claim, including whether Mr Wang effected the transfer of assets and liabilities between HGCC and the defendant with the intention to evade those companies' alleged obligations to honour the plaintiffs' Membership Rights. It would be just and convenient to determine that question between Mr Wang, the plaintiffs and the defendant as it forms an important aspect of the s 172 claim.[55]

66 Moreover, I would exercise my discretion to grant leave to the plaintiffs for their proposed joinder as I consider that:

(a) it will assist the Court if Mr Wang is given the opportunity to answer the allegations made against him, thereby facilitating the Court's determination of the issue and minimising costs and delay; and

(b) there has been no suggestion by any party that the joinder will result in some unfairness or prejudice for them. Mr Wang is a director of the defendant, so he should already be aware of the litigation.

67 I refer to my reasons set out above as to why I consider that the plaintiffs' claim has a real chance of success.

68 A few other points are also worth noting in relation to summary judgment. Firstly, the Court of Appeal made it clear in Lysaght that the power to terminate proceedings summarily should be exercised with caution, and should not be exercised unless it is clear that there is no real question to be tried.[56]

69 Secondly, as noted earlier, there are important and difficult issues of fact and/or law in this proceeding, given the lengthy and complicated history of the Golf Club, the Scheme and members' rights, the number of entities and individuals involved and the intricate connections between them. In Bayne v Baillieu, Griffith CJ said that

[a]n action which, being brought upon sufficient materials, seeks to raise and put in train for decision an important and difficult question of law cannot be regarded either as frivolous and vexatious, or as an abuse of the process of the Court. So far as the case turns on questions of fact, the true rule is laid down in the very recent case of Goodson v. Grierson, where the Lords Justices reversed an order to dismiss an action as frivolous and vexatious on the ground (per Fletcher Moulton L.J.) that, as the action had not reached the stage at which the Court would assume that it knew all the facts, it was impossible to say that the plaintiff must necessarily fail to prove an important element of his case. Buckley L.J. said: - "It appears to me that the plaintiff might prove facts which might lead to his succeeding in the action, and until the Court knows all the facts it is impossible to say that the action can be stopped."[57]

70 Where construction of a contract is in issue, in Israfoods (2006) Ltd v J & D Consortium Pty Ltd, Sloss J noted the following principles:

In cases which involve the disputed construction of an agreement, it has been often found that summary judgment may not be appropriate, particularly where evidence of surrounding circumstances is sought to be relied upon to resolve an asserted ambiguity.

In Matthews v SPI Electricity Pty Ltd, J Forrest J identified several principles applicable to the determination of applications for summary judgment:

1. If a court determines that a particular cause of action is hopeless or bound to fail, then it should be dismissed;

2. A court may also dismiss a claim where it determines that it has no real prospect of success in the sense that such prospects are fanciful rather than realistic;

3. The less complex the issue in a case then the easier it is for a court to take the view that such a proceeding is capable of being determined on summary judgment; and

4. Whatever the test to be applied, the power to order summary dismissal of a claim must be exercised with care. This is particularly so where a case may involve issues of contested fact, or where its consequences may affect a large number of persons.

In JBS Southern Aust Pty Ltd v Westcity Group Holdings Pty Ltd , Croft J applied those principles in an appeal from a summary judgment application granted by Daly AsJ. Croft J observed that "one might add to the fourth point: 'or the construction of complex documents'".[58]

71 The complexity of the facts and the legal relationships in this case is evident. The plaintiffs assert that the defendant is bound to honour their Membership Rights by a series of interrelated documents and implied obligations, which it has inherited through the transactional history between the various entities involved in the Golf Club from the 1990s to present. The defendant not only denies these allegations, but say that the plaintiffs do not have a case at all in contract, as there are no documents that legally bind the defendant.

72 There is no disagreement between the parties that, as a matter of fact, until early 2024, members exercised their Membership Rights. There is documentation, such as the conditions of membership and the membership plan, which is said to describe those Membership Rights. How the defendant came to be bound, or was not bound, to honour those Membership Rights is an important and difficult question to be determined. In particular, I note that details of the purported Oral Agreement between HGCC and the defendant are, at this point, still scant, and there is some confusion as to when the agreement was entered. These matters suggest that this is not a case appropriate for summary dismissal.

73 Even if I am wrong to conclude that the plaintiffs' case has a real prospect of success, I would exercise my discretion under s 64 of the CPA to deny the defendant's application for summary judgment. Given the factual and legal complexities of the case, I consider that:

(a) it is not in the interests of justice to give summary judgment; and

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

74 Having regard to my reasons above, I consider that, on the whole, the plaintiffs' PASOC has a real chance of success. As such, it is sufficiently arguable that the PASOC discloses a cause of action and the PASOC should not be struck out.

75 For the reasons set out, subject to hearing from the parties, I propose to order that:

(a) the plaintiffs have leave to file and serve the proposed amended statement of claim in the form exhibited to the affidavit of Aleksandar Kuraica affirmed 26 May 2025;

(b) the plaintiffs have leave to join Mr Hua Wang as a defendant to the proceeding;

(c) the defendant's summons filed 24 March 2025 be dismissed; and

(d) the defendant pay the plaintiffs' costs of and incidental to its application and the costs of and incidental to the defendant's summons, such costs to be taxed on a standard basis in default of agreement.

AUSTRALIAN AND PACIFIC INVESTMENT CORPORATION PTY LTD (ACN 005 445 107)

YARRA VALLEY HERITAGE ESTATE PTY LTD (ACN 645 561 851)

JESHING PROPERTY MANAGEMENT PTY LTD (ACN 617 076 338)

[1] Separate titles pertain to different Golf Club Facilities, such as the two golf courses on the land, the clubhouse and the spa, and separate strata titles apply to each of the Hotel rooms.

[2] Paragraph 19 of the defendant's submissions filed 14 May 2025 and paragraph 11 of the affidavit of Terrence Cooley sworn 23 April 2025 ("Cooley Affidavit") refer to "Golden Heritage Golf Club Pty Ltd (ACN 147 372 101)" as the registered proprietor of the Golf Club Land between 17 April 2012 and 23 April 2014. However, the ASIC extract dated 17 May 2023 for the company with ACN 147 372 101, at page 888 of the affidavit of Wilhelmus Antonius Joannes Boerkamp affirmed 7 July 2024 ("Boerkamp Affidavit"), shows that the name of the company with ACN 147 372 101 was, and always had been, "Golden Heritage Golf Pty Ltd".

[3] Cooley Affidavit (n 2) at [30].

[5] Ibid at [34]. Counsel for the defendant told the Court that Ms Bao and Mr Wang are now estranged, although it is not clear when the estrangement occurred: T56-7.

[6] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 36.01 ("Rules").

[8] [2020] VSC 284 at [13]-[19].

[9] Northern Health v Kuipers [2015] VSCA 172 at [22].

[10] Rules (n 6) r 9.02(b).

[12] (2023) 73 VR 521 at [77]-[88] ("S Pirrie").

[13] Civil Procedure Act 2010 (Vic) ss 62-3 ("CPA").

[14] [2013] VSCA 158; (2013) 42 VR 27 at [35] ("Lysaght"). See also Angad Trans Pty Ltd v Chiarelli [2024] VSC 622 at [43], where Ierodiaconou AsJ referred to the quoted test as "now well-established law".

[15] Rules (n 6) r 23.02(a).

[16] Ibid r 23.04(2); OFLI v RACV Insurance Services Pty Ltd [2024] VSC 161 at [48]-[49], quoting Manderson M & F Consulting v Incitec Pivot Ltd [2011] VSCA 444; (2011) 35 VR 98 at [32].

[17] It is unclear from the PASOC whether the Planning Scheme also regulates the Henley Golf Course and the Hotel.

[20] [2010] FCA 140.

[24] Defendant's Bundle of Authorities and Other Materials (for hearing on 30 May 2025) at 501 ("Defendant's Bundle").

[28] CPA (n 13) s 7.

[29] Affidavit of Aleksandar Kuraica affirmed 19 May 2025 at [9]-[28].

[32] Exhibit WAJB-1 to the Boerkamp Affidavit (n 2) at 955.

[35] Exhibit WAJB-1 to the Boerkamp Affidavit (n 2) at 351-71.

[36] Cooley Affidavit (n 2) at [53].

[37] [2013] HCA 51; (2013) 251 CLR 592.

[39] Noakes v J Harvy Holmes & Son (1979) 26 ALR 297 at 303; Cannane v J Cannane Pty Ltd (in liq) (1998) 192 CLR 557 at [12].

[40] Exhibit WAJB-1 to the Boerkamp Affidavit (n 2) at 957, 959. The financial position summary at page 7 of the liquidator's report dated 19 April 2024 indicates that, at the time of the report, HGCC owed nothing to priority creditors, statutory creditors and secured creditors, $24 to unsecured creditors and $4,351,732 to related party creditors. Page 9 of the same report shows that the $24 was owed to National Australia Bank Limited and the $4,351,732 was owed to Jeshing Property Management Pty Ltd.

[41] Defendant's Bundle (n 24) at 502-3. HGCC's annual accounts for the financial year ended 30 June 2023 show that, as at 30 June 2023, HGCC had total liabilities of $10,998,358, of which $10,874,047 was comprised of loans from related entities (including "Jeshing Property Management") and the remainder consisted of liabilities to trade creditors. As at 30 June 2022, total liabilities were $10,340,552 and consisted solely of loans from related entities.

[43] Exhibit WAJB-1 to the Boerkamp Affidavit (n 2) at 957.

[45] Ridge Estate Pty Ltd v Fairfield Pastoral Holdings Pty Ltd [2024] FCAFC 17; (2024) 302 FCR 375 at [110], citing Marcolongo v Chen (2011) 242 CLR 546 at [20].

[46] Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 276 CLR 519 at [119] ("Hobart International Airport").

[48] [1988] HCA 44; (1988) 165 CLR 107.

[49] Hobart International Airport (n 46).

[54] (1989) 21 FCR 50 at 53. Justice Sweeney's comments were cited in Re-Engine Pty Ltd v Fergusson [2007] VSC 57; (2007) 209 FLR 1 at [57]-[59].

[55] Rules (n 6) r 9.02(b)(ii); S Pirrie (n 12) at [84].

[56] Lysaght (n 14) at [35].

[57] [1908] HCA 39; (1908) 6 CLR 382 at 396-7.

[58] [2019] VSC 323 at [52]-[54].