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Category: Procedural rulings

Parties: Green Estate Australia Pty Ltd (First Cross-Claimant)
Oriental Management Pty Ltd (Second Cross-Claimant)
Yuqing Hu (First Cross-Defendant)
CXF Development Pty Ltd (Second Cross-Defendant)
CXH Development Pty Ltd (Third Cross-Defendant)

Representation: Counsel:
S Golledge SC / P Flynn SC / H Zhu (Cross-Claimants / Respondents on the application)
D Williams SC / D L Cook SC / G E S Ng SC / A Rizk (Cross-Defendants / Applicants on the application)
Solicitors:
Herbert Smith Freehills Kramer (Cross-Claimants / Respondents on the application)
Bartier Perry (Cross-Defendants / Applicants on the application)

File Number(s): 2025/187897

JUDGMENT

Nature of the application and factual background

1. An oral application is made by the Cross-Defendants that I disqualify myself for apprehended bias from continuing to hear these proceedings. The hearing of that application for disqualification took place on the morning of 25 August 2026 and continued into the morning of 26 August 2026. This application is brought after several days of the hearing, in circumstances where eight or more further hearing days are likely required to conclude the proceedings. I have had the benefit of written submissions as to the applicable principles, but not as to the grounds of the application made by Mr Williams, with whom Mr Cook, Mr Ng and Mr Rizk appear for the Cross-Defendants.

2. I should first set out the factual background to the disqualification application, before turning to the applicable principles and then the several grounds for the disqualification application. I have previously addressed some of the relevant circumstances, in my ex tempore judgment delivered on 19 August 2026, and the Court of Appeal has also addressed them, in part, in its judgment in Hu v Green Estate Australia Pty Ltd [2026] NSWCA 170 (“Appeal Judgment”), although the application extended beyond the matters addressed in those judgments.

3. By way of background, by Amended Statement of Claim filed in proceedings 2025/187897 ("V2V proceedings"), the Plaintiff, V2V Investment Pte Ltd ("V2V") sought judgment in an amount exceeding $29.7 million or, alternatively, damages for breach of contract, against Green Estate Australia Pty Ltd (“Green Estate”), Billabong Estate Australia Pty Ltd (“Billabong”) and 624 Leakes Road Pty Ltd (“624 Leakes Road”). By its Amended Statement of Claim filed in the V2V proceedings, V2V claimed that, in breach of relevant provisions of a Deed of Loan, the Defendants failed, refused or neglected to repay the principal and interest to V2V by 2 February 2024. The Defendants filed a Defence on 29 August 2025, which admitted the execution of the Deed of Loan; did not admit the advance of funds by way of loan; denied the alleged failure to repay the loan; and referred to a cross-claim, which is not now pressed, as a defence to the proceedings. That claim was resolved by orders made by consent in favour of V2V on the second day of this hearing, in March 2026.

4. A substantial dispute remains as to the First Cross-Claim brought by Green Estate and OMP Management Pty Ltd (“OMP”) against Mr Yuqing Hu and two companies associated with him, CXF Development Pty Ltd (“CXF”) and CXH Development Pty Ltd (“CXH”) in respect of several disputed payments. A narrower dispute remains in the Second Cross-Claim, where Mr Hu seeks a declaration, as against OMP, that OMP holds certain shares in each of Billabong and QZH Australia Pty Ltd (“QZH”) on trust for the benefit of Mr Hu pursuant to a Share Holding Agreement executed in October 2022 and an order that those shares be transferred to Mr Hu or his nominee within 7 days of the Court’s orders, or alternatively that OMP take all reasonable steps to transfer those shares.

5. These proceedings were originally listed for hearing in March 2026. The cross-examination by Mr Ng of the first witness called by the Cross-Claimants, Ms Huang, then exceeded the time that it was expected to take by a large margin, so that the proceedings could not complete within the time initially allocated to them and had to be adjourned, part-heard, to the next available hearing dates in August 2026. At the hearing in August 2026, a difficulty arose, in the circumstances noted below, after it appeared that Counsel and the solicitors for the Cross-Defendants might withdraw, although they have now indicated that they do not need to do so. Happily, it is now possible for the proceedings to recommence promptly on 1 September 2026, either before me if this application fails or before Nixon J if this application succeeds.

The parties’ pleaded cases (as amended), a brief chronology and the evidence to date

6. It is necessary that I summarise the parties’ pleaded cases, as amended; provide a brief chronology of events; and refer briefly to the affidavit evidence that has been read to date and associated cross-examination, since the difficulties that arise in the proceedings and the issues that have given rise to this application could not be understood without close focus on the matters in dispute. I would not ordinarily address these matters, even in a summary way, in an application of this kind, but this application is out of the ordinary in many respects. I have sought not to make any evaluative comments in this summary, where I recognise that any evaluation would be a matter for the judge who hears the matter if I were now to disqualify myself. I also recognise that Mr Williams notes, constructively, the possibility that, if I disqualify myself and the matter is now to be heard by another judge, that hearing could potentially proceed on the basis that the evidence led to date in this hearing is taken as read in the new hearing.

7. The Cross-Claimants rely on, inter alia, four payments (“Disputed Payments”) to contend that (First Cross-Claim Amended Statement of Cross-Claim (“ASC”) [23]) a credit held in Green Estate’s bank account (or, more precisely, the chose in action that it reflected) was property to which it was beneficially entitled. The Cross-Defendants, Mr Hu, CXF and CXH contend those funds were held on trust or under an agency for them.

8. In a lengthy pleading, Mr Hu, CXF and CXH seek to establish that trust or agency from the circumstances in which the Disputed Payments were made as follows (Defence to Amended Statement of Cross-Claim (“DASC”) [6A]):

“a. Mr Hu caused the following amounts to be transferred to Green Estate on his own behalf and for his own benefit, whether as a contribution under the Agreement or as funds to be transferred to him for use in Australia (the Hu Overseas Transfers):

(i) 8 September 2017 – $6,201,982 [“First Disputed Payment”];

(ii) 12 October 2017 – $5,079,982 [“Second Disputed Payment”];

(iii) 18 October 2017 – $2,663,504 [“Third Disputed Payment”]; and

(iv) 7 May 2018 – $6,591,957.81 [“Fourth Disputed Payment”];

b. the OMP Parties acknowledged and confirmed the amounts that Mr Hu so transferred to Green Estate on his own behalf and for his own benefit in the Share Holding Agreement;

c. Mr Hu caused the Hu Overseas Transfers to be made for the purpose of acquiring the Lonsdale Property from [ZX Group Pty Ltd (“ZX Group”)] pursuant to a contract for sale entered into by CXF and [ZX Group] Pty Ltd on or about 18 October 2016.”

9. Mr Hu, CXF and CXH also plead alleged conversations between Ms Yu (who is Mr Hu’s wife) and Mr Qiu (who is Ms Huang’s husband and was associated with the Boill Group) in mid 2017 as to the basis of those transfers.

10. Mr Hu, CXF and CXH plead (DASC [6A(e)] that two companies (which I will abbreviate as “CTL” and “HKH”) which were associated with a third party, Mr Shuying Huang (to whom the parties refer as “Shuying”) were the source of the funds paid in the First Disputed Payment. They also plead that:

“the funds advanced by [CTL] and [HKH] were transferred to [Boill HK], which were then converted into AUD and remitted by [Boill (Group) Ltd (“Boill HK”)] to Green Estate and were then subsequently remitted by Green Estate to Mr Hu (or his nominee) in accordance with the Collect and Pay Arrangement with the consequences that:

A. Boill [HK} as agent for the payer of the funds, or alternatively as trustee for the Hu Parties, received the funds from Shuying (or a company he was authorised to transact on behalf of) and remitted them to Green Estate, and did not assume or acquire any beneficial interest in those funds; and

B. Green Estate merely received the funds from Boill [HK] as agent for the Hu Parties, or alternatively, having furnished no valuable consideration for the receipt of the funds, as a bare trustee for the Hu Parties (such that the chose in action constituted by the Green Estate bank account was held on a trust for the benefit of both the Hu Parties and Green Estate in proportion to their respective contributions to the funds standing to the credit of Green Estate in that banking account) and remitted them to Mr Hu (or his nominee, including CXF and CXH), and did not assume or acquire any beneficial interest in those funds, and it would be unconscionable for Green Estate to rely upon its legal title to those funds in denying the Hu Parties’ beneficial interest in those funds.”

11. Mr Hu, CXF and CXH similarly plead (DASC [6A(f)] that CTL and HKH were the source of the funds paid in the Second Disputed Payment and that those payments were also made by Boill HK to Green Estate under a “Collect and Pay” arrangement. Mr Hu, CXF and CXH plead (DASC [6A(g)] that a third and fourth companies (which I will abbreviate as “JHHK” and “GKD”) were the source of the funds paid in the Third Disputed Payment and contend these payments were also made by Boill HK to Green Estate under a “Collect and Pay” arrangement. Mr Hu, CXF and CXH plead (DASC [6A(h)] that a fifth company (which I will abbreviate as “STPL”) made the Fourth Disputed Payment and contend that payment was also made by Boill HK to Green Estate under a “Collect and Pay” arrangement.

12. Mr Hu, CXF and CXH then plead that loan agreements between CTL, HKH, JHHK, GKD and STPL on the one hand and Green Estate on the other were prepared by the OMP Parties and were:

“prepared and executed into for the purpose of facilitating the transfer of funds from Hong Kong into Australia, and [were] not intended to give rise to a loan requiring repayment by Green Estate.”

13. This was an allegation that the loan agreements were shams, in the sense noted in Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454; [1988] FCA 289. Mr Hu, CXF and CXH also contend, in respect of each of the Disputed Payments, that:

“at no time has [the lender] made any demand of Green Estate or Boill HK for the repayment of the amounts described or recorded in the [loan agreements]; [and]

the money transferred by [the lenders] was intended for the benefit and use of Mr Hu (or his nominee as the intended final recipient of that money”.

14. Mr Hu, CXF and CXH in turn contend (DASC [6B(j)]) that the relevant funds were “intended” for Mr Hu or his nominee and not for any of the OMP Parties’ related entities or Green Estate.

15. Mr Hu, CXF and CXH also plead (DASC [6B[k)] that:

“alternatively, and in the event that it is found that Green Estate did not receive the alleged Misappropriated Funds as agent or bare trustee, then the Cross-Defendants say:

(i) The Hu Parties and Mr Hu caused the Misappropriated Funds (as defined) to be transferred through Boill [HK] and Boill International Co Limited [“Boill International”] to Green Estate on the assumption that the Collect and Pay Arrangement would have the effect that the funds could and would be remitted to the Hu Parties and Mr Hu in Australia;

(ii) Green Estate encouraged that assumption through the representations made to the Hu Parties and Mr Hu by:

A. Mr Qiu, acting on behalf of Green Estate, or with the ostensible authority of the board of Green Estate, in making the proposal to Ms Yu, pleaded above in paragraph 6B, that led to the Collect and Pay Arrangement and by acceding to Mr Hu’s requests to transfers of funds paid pursuant to that arrangement to be remitted in Australia from its account;

B. Mr Zhang, being a representation to the effect that he agreed with the implementation of the Collect and Pay Arrangement;

(iii) The Hu Parties and Mr Hu acted to their detriment in relying upon that assumption in causing the first transfer of funds to be transferred under the Collect and Pay Arrangement and thereafter in making further transfers after the first transfer occurred and the funds were remitted in accordance with the assumption;

(iv) Green Estate was aware that the Hu Parties and Mr Hu were acting in reliance upon the induced assumption in causing, and continuing to cause, transfers of funds into Green Estate’s bank account;

(v) It would be unconscionable in the circumstances where Green Estate received the Misappropriated Funds on the basis of the induced assumption to depart from the assumption such that Green Estate is estopped from doing so by disputing that such funds were held as agent for the Hu Parties or Mr Hu or as a bare trustee for the Hu Parties or Mr Hu.”

16. Mr Hu, CXF and CXH then rely on these matters to plead (DASC [8]) that:

“a. …between 8 September 2017 and 7 May 2018, Green Estate received into its bank account, through four separate transactions, the sum of $20,537,426.08;

b. … these funds represent the sum of the [Disputed Payments];

c. … for the reasons set out in paragraph 6B above, these were not funds to which Green Estate was beneficially entitled, save for the sum of $1 million, which was retained by Green Estate (and subsequently paid out to Ascott Solicitors Trust Account) as a contribution made by the Hu Parties …”

17. The Cross-Claimants in turn plead (ASC [24], denied with additional contentions in DASC [9]) that:

“At all material times Mr Hu, with the consent of the OMP Parties and Green Estate, exercised control of the funds which were paid by the Joint Venture parties into the bank account of Green Estate.”

18. The Cross-Claimants also plead (FCC [26]–[29]) several properties acquired by Green Estate, Billabong and 624 Leakes Road during 2016 and 2017, allegedly pursuant to and for the purposes of the alleged joint venture. The Cross-Defendants admit that the properties were purchased, but not that they were purchased for the purposes of the joint venture.

19. The Cross-Claimants plead (ASC [30]) that:

“Between 29 August 2017 and 17 May 2018 Mr Hu transferred or caused the transfer of moneys totalling $A$19,537,426.08 (“Misappropriated Funds”) out of the bank account of Green Estate to CXF and CXH and/or other entities related to Mr Hu (“Misappropriated Funds Transfer”).”

This allegation is particularised by reference to a transfer on 12 September 2017 of $6,201,982 to CXF; a transfer on 20 October 2017 of $6,743,486.27 to CXH and a transfer on 17 May 2018 of $6,591,957.81 to CXF.

20. Mr Hu, CXF and CXH respond (DASC [13]) that they:

“a. admit that the pleaded transfers occurred and that Mr Hu requested those transfers; [and]

b. say that each of the transfers occurred with the approval and fully informed consent of QZH, being the sole shareholder of Green Estate.”

21. Mr Hu, CXF and CXH in turn contend that Mr Zhang was then the sole director of QZH and that Mr Zhang approved and consented to each of the transfers.

22. The Cross-Claimants plead (ASC [25], partly admitted DASC [10]) that Mr Hu owed general law duties in his role as a director of Green Estate, and at least Green Estate has standing to bring that claim. They do not bring claims for breach of statutory duties. By way of defence, Mr Hu, CXF and CXH respond (DASC [14]) that they:

“a. admit that Mr Hu, on behalf of the Hu Parties, requested that Misappropriated Funds be transferred out of the bank account of Green Estate;

b. say the Hu Parties, as the beneficial owner of those funds, was entitled to request Green Estate to transfer those funds at their direction;

c. say, in making such a request, Mr Hu did not act as a director of Green Estate or exercise any power as a director of Green Estate;

d. say in making such a request, Mr Hu did not breach any duty owed to Green Estate by reason of his position as director of Green Estate in the circumstances pleaded in paragraphs 6B, 9 and 13 above; and

e. otherwise deny the paragraphs.”

23. The Cross-Claimants then plead (ASC [33], admitted DASC [15]) the purchase of a property at Lonsdale Street Melbourne (“Lonsdale Street Property”) for $20 million by CXF. The Cross-Claimants then plead (ASC [34]ff, partly admitted and partly denied DASC [34]ff) subsequent borrowings by Green Estate from third parties and then from V2V. The Cross-Claimants then plead (ASC [45]ff) a breach of duty against Mr Hu in respect of the Misappropriated Funds (as defined) and for associated costs and expenses.

24. Mr Hu, CXF and CXH in turn raise (DASC [26(a)]), first, a defence that Green Estate has suffered no loss or damage in that it had no beneficial entitlement to the alleged funds and the Hu Parties have not sought the return of those funds, and also rely on a limitations defence (DASC [26](b)].

25. The Cross-Claimants then bring knowing receipt claims (ASC [47]ff, denied DASC [27])) against CXF in the amount of approximately $12,793.939.81 and against CXH in the amount of $6,743,486.27, relating to the payments made to them in September and October 2017 and May 2018.

26. OMP also brings (ASC [54]–[57], denied DASC [29]ff) a misleading or deceptive conduct claim against Mr Hu in respect of an agreement (“Share Holding Agreement”) executed in October 2022 which provides that shares held by OMP in QZH and Billabong (“Disputed Shares”) are held on trust for Mr Hu. As I noted above, by his Second Cross-Claim, Mr Hu conversely seeks a declaration, as against OMP, that OMP holds the Disputed Shares in each of Billabong and QZH on trust for the benefit of Mr Hu pursuant to the Share Holding Agreement and an order that the Disputed Shares be transferred to Mr Hu or his nominee within 7 days of the Court’s orders, or alternatively that OMP take all reasonable steps to transfer those shares.

27. I now turn to a brief and selective chronology, which deals only with critical events. I again reach no evaluative findings which would be a matter for the judge to whom the matter is referred, if I disqualify myself, and I address only documentary evidence and affidavit evidence which has been led to date.

28. It appears that, from mid-2016, Mr Zhang and Ms Wang and Mr Hu and Ms Yu had discussions about investing in real property in Victoria and establishing a property development business. In mid October 2016, a meeting took place at the Crown Hotel and Casino in Melbourne between Mr Qiu, Ms Huang, Mr Hu, Ms Yu, Mr Zhang and Ms Wang and others at which the proposed venture was discussed (Huang 4.11.25 [49]–[50]; Huang 19.11.25 [8]). Ms Huang was cross-examined as to that meeting (T95). Mr Qiu also referred to that meeting and (in evidence admitted with a limiting order under s 136 of the Evidence Act as to his understanding) to the matters that were agreed at that meeting. The Cross-Claimants allege (ASC [17]–[18]) and the Cross-Defendants deny (DASC [17]–[18]) that the arrangement formed at that meeting was a “joint venture”. Mr Cook cross-examined Mr Qiu on the basis that the arrangement had that character.

29. On 17 or 18 October 2016, a company associated with Mr Hu or Ms Yu entered into a contract to purchase the Lonsdale Property from ZX Group, Mr Zhang’s company. It appears that CXH, which had not then been incorporated, was later substituted as a party to that contract and a replacement contract to purchase that property was entered in August 2017.

30. It is common ground (ASC [21]; DASC [6]) that, between 9 November 2016 and 7 May 2018, Ms Huang and OMP transferred A$11,860,000 to Green Estate’s bank account although there may be a dispute as to whether those payments had the character of loans. The Cross-Claimants accept (ASC 22]) that, between 9 November 2016 and 7 May 2018, Mr Hu and entities associated with him or on his behalf also transferred or caused the transfer of moneys totalling $9,949,371.10 to Green Estate's bank account for the purposes of the alleged joint venture. Green Estate entered into several contracts to purchase properties in Bonnie Brook in Victoria.

31. Between 2017 and 2019, Ms Huang resided in China. She visited Australia two to three times a year during that period, but she was unable to leave China between 2000 and mid-2022, as a result of the outbreak of COVID-19. She was not in Australia when many of the events in issue in these proceedings took place.

32. On 7 August 2017, CXF entered into a second contract to purchase the Lonsdale Property. Mr Qiu was cross-examined as to discussions in August 2017 of the purchase of the Lonsdale Property by Ms Yu and Mr Hu (T312).

33. The First Disputed Payment is a transfer of $6,201,928 by Boill HK to Green Estate and the subsequent transfer of those funds to CXF. Mr Qiu addresses that payment in his affidavit evidence (Qiu 15.3.26 [107]ff) and was cross-examined about it at some length.

34. CTL and Green Estate entered a loan agreement dated 1 September 2017 in respect of this transaction, documenting a loan of USD$2,070,000 by CTL to Green Estate (CB 531). HKH and Green Estate also entered a loan agreement of the same date documenting a loan of USD$2,930,000 by HKH to Green Estate. The Cross-Defendants contend that these loan agreements were shams, at least in the sense that they were not intended to give rise to debts that were repayable by Green Estate. On 1 September 2017, CTL transferred USD$800,000 to Boill HK and HKH transferred USD$1,200,000 to Boill HK; on 4 September 2017, CTL transferred USD$600,000 to Boill HK and also transferred USD$100,000 to Boill HK; on 5 September 2017, CTL transferred USD$570,000 to Boill HK and HKH transferred USD$800,000, USD$500,000 and USD$430,000 to Boill HK. The parties draw attention to internal “payment approval notices” within the Boill Group in respect of aspects of this transaction and top WeChat exchanges concerning the transaction (CB 566) and Ms Huang was cross-examined (T102-103) as to a WeChat exchange concerning the transaction. On 8 September 2017, Ms Tang had a WeChat exchange with Mr Qiu (CB632) concerning the transaction and he was also cross-examined as to that matter.

35. On 8 September 2017, Boill HK then transferred $6,201,928 to Green Estate (ASC [21B], [21C]ff; Qiu 5.11.25 [58]; Huang 4.11.25 [54]). There is a dispute whether that payment was made on behalf of OMP for the purposes of the alleged joint venture or, as Mr Hu, CXH and CXF contend (DASC [6B[a]) was an amount that Mr Hu caused to be transferred to Green Estate “on his own behalf and for his own benefit, whether as a contribution under the Agreement or as funds to be transferred to him for use in Australia.” On 12 September 2017, Green Estate transferred $6,201,982 to CXF.

36. The Second Disputed Payment concerns a transfer of $5,079,982 by Boill HK to Green Estate and the subsequent transfer of those funds to CXF. Mr Qiu addresses that payment and a further payment of $2,663,504 by Boill HK to Green Estate (“Third Disputed Payment”) in his affidavit evidence (Qiu 15.3.26 [128]-[129]) and was cross-examined as to those matters (T364ff). The parties also draw attention to payment approval notices within the Boill Group in respect of these transactions (CB 465–466, 472, 479–480), which were addressed in Mr Qiu’s evidence (Qiu [134]–[136], [139]ff, [145]–[146]) and cross-examination (T370, 379).

37. On 11 October 2017, a loan agreement was executed between CTL and HKH and Green Estate pursuant to which USD$3,990,340 was loaned by those companies to Green Estate. The Cross-Defendants claim that this loan agreement was a sham in the sense noted above. On 12 October 2017, Boill HK then transferred $5,079,982 to Green Estate (ASC [21B], [21H]ff; Qiu 5.11.25 [58]; Huang 4.11.25 [54]). There is again a dispute whether that payment was made on behalf of OMP for the purposes of the alleged joint venture or, as Mr Hu, CXH and CXF contend (DASC [6B[a]]) was an amount that Mr Hu caused to be transferred to Green Estate “on his own behalf and for his own benefit, whether as a contribution under the Agreement or as funds to be transferred to him for use in Australia.” Ms Huang was cross-examined (T111) as to this transfer.

38. Turning to the Third Disputed Payment, on 17 October 2017, JHHK and GKD on the one hand and Green Estate on the other entered a loan agreement for USD$2,100,000 (CB 606). The Cross-Defendants claim that this loan agreement was a sham in the sense noted above. On 18 October 2017, Boill International transferred $2,663,504 to Green Estate (ASC [21B], [21M]ff; Qiu 5.11.25 [58]; Huang 4.11.25 [54]). There is again a dispute (ASC [21B) whether that payment was made on behalf of OMP for the purposes of the alleged joint venture or, as Mr Hu, CXH and CXF contend (DASC [6B[a]]) was an amount that Mr Hu caused to be transferred to Green Estate “on his own behalf and for his own benefit, whether as a contribution under the Agreement or as funds to be transferred to him for use in Australia.” Ms Huang was cross-examined as to this transaction (T111). There was a further exchange of WeChat messages (CB616, 637) as to this payment and Ms Huang and Mr Qiu were cross-examined about them (T112–113, 376).

39. On 23 October 2017, Green Estate transferred $6,743,386.27 to CXH and $1,000,000 to Ascot Solicitor’s trust account, totalling $7,743,486.27 (Huang 4.11.25 [64(c)]; Huang 19.11.25 [54]).

40. The Fourth Disputed Payment relates to a transfer of $6,591,9576.81 by Boill HK to Green Estate and the subsequent transfer of those funds to CXH. Mr Qiu addresses this transaction in his affidavit evidence (Qiu 15.3.26 [204]–[205]). On 27 April 2018, a loan agreement was executed (CB 674) between STPL, Green Estate and Boill HK. Clause 1 provided that:

“[Green Estate] authorises [Boill HK] to collect the full loan amount [USD 5,000,000] from [STPL] on its behalf.

[Boill HK] shall remit the full amount to [Green Estate] within the agreed timeframe.

Apart from the remittance obligation, [Boill HK] shall not be involved in or bear any responsibility for the loan relationship between [STPL] and {Green Estate].”

The Cross-Defendants claim that this loan agreement was also a sham in the sense noted above.

41. On 30 April 2018, STPL transferred USD$4,999,990 to Boill HK. The parties again draw attention to a payment notification approval form within the Boill Group showing a date of receipt 3 May 2018 (CB 527) and relating to the transfer from STPL. Mr Qiu gives evidence (Qiu [210]) as to a handwritten note on this document.

42. On 7 May 2018, Boill HK transferred $6,591,9576.81 to Green Estate (ASC [21B], [21R]ff; Qiu 5.11.25 [58]; Huang 4.11.25 [54]). There is again a dispute (ASC [21B) whether that payment was made on behalf of OMP for the purposes of the alleged joint venture or, as Mr Hu, CXH and CXF contend (DASC [6B[a]) was an amount that Mr Hu caused to be transferred to Green Estate “on his own behalf and for his own benefit, whether as a contribution under the Agreement or as funds to be transferred to him for use in Australia.” There were further WeChat messages concerning this transaction. On 17 May 2018, Green Estate transferred $6,591,957,81 to CXH (Huang 4.11.25 [64(d)]; Huang 19.11.25 [54]).

43. The financial statements for Green Estate for the year ended 30 June 2018 (CB 704) record total current liabilities of $8.79 million for the year ended 2017 and of $16,664,518 for the year ended 30 June 2018 and a note records that they are director and shareholders’ loan of those amounts but does not identify the lender. Ms Huang was cross-examined as to these financial statements (T136-139).

44. On 31 July 2018, CFX completed the purchase of the Lonsdale Property from ZX Group, a company associated with Mr Zhang (Huang 4.11.25 [67], [70]).

45. On 16 July 2019, Green Estate and 624 Leakes Road borrowed $9,240,000 from a third party lender, which was personally guaranteed by Ms Huang and Mr Hu, and Green Estate borrowed $5,550,000 from that lender which was also personally guaranteed by Ms Huang, Mr Hu and Mr Zhang (Huang 4.11.25 [74]). Ms Huang was also cross-examined as to this matter (T145). Around 7 November 2019, Billabong borrowed $4,250,000 from that lender which was also personally guaranteed by Ms Huang, Mr Hu and Mr Zhang (Huang 4.11.25 [74], [77]). Green Estate later makes further borrowings (Huang 4.11.25 [82], [91]).

46. On 24 January 2022, OMP, Ms Wang and Mr Hu entered into a Share Transfer Agreement (CB1070), which was signed by Mr Qiu for Ms Huang. The agreement states that it relates to 30% of the equity of QZH and 30% of the equity of Billabong and recites contributions to the equity of the companies. Clause 1.1 provides for Ms Wang to transfer of 30% of the equity in each of QZH and Billabong to OMP. Clause 1.2.1 refers to the payment for land acquired by QZH and Billabong and contains a statement as to payments for the land. Clause 1.2.2 in turn records an agreement between Ms Huang and OMP that the equity transfer price for the two companies is to be AUD13.0755 million, being 30% of the figure of AUD43.585 million. By cl 1.2.3, Ms Wang in turn agreed that OMP could deduct the amount owed by Ms Wang to Mr Hu (i.e., $9.0325 million) from the transfer price (i.e., $13.0755 million) and pay it directly to Mr Hu, with the remaining balance (i.e., $4.043 million) to be paid to Ms Wang. Ms Huang and Mr Qiu were cross-examined (T151ff, T266–267) about this agreement.

47. Mr Qiu’s and Ms Huang’s evidence (Huang 4.11.25 [95]); Qiu 5.11.25 [78]ff) is that, in or around April 2022, Mr Qiu, Ms Huang, Ms Yu and Mr Hu met (“April Meeting”) in Shanghai to discuss what to do with the Zhang Parties’ shares; Mr Hu then showed Mr Qiu and Ms Yu a record of investments made by Ms Huang and OPM, with Mr Hu indicating investments of $11,890,000 and $18,573,371.10 respectively; and Mr Hu requested and Ms Huang agreed that Ms Huang would hold the 30% of the shares in QZH and Billabong transferred by Ms Wang to OMP on trust for him. There is an issue as to the date of this meeting and, possibly, whether it occurred and Ms Huang was cross-examined as to that matter (T161ff). Mr Qiu also addressed that meeting (Qiu 5.11.25 [80], [82]) and was cross-examined about it. It is common ground (DASC [5(i)]) that, on 29 April 2022, Ms Wang transferred her 30% of the shares in QZH and Billabong to OMP.

48. Mr Hu and OMP executed a Share Holding Agreement dated 1 October 2022 (CB 1220; Huang 4.11.25 [57]–[58], [103]) in Mandarin and English, which was signed for OMP by Ms Huang. Recital E records that Mr Hu has contributed AUD18,575,371 and OMP has contributed AUD11,890,000 for a total of AUD30,465,371, reflecting information contained in schedules to the Agreement. Clause 1 records that:

“Mr Hu is entitled to the 30% shares of the Companies that OMP now holds as the result of Change from [Ms Huang] to OMP. OMP agrees to hold these 30% shares on trust for [Mr Hu]. With this shareholding on trust, the actual shareholding percentage are as follows: …”

49. A table then records that OMP holds 40% shares in each of QZH and Billabong, Mr Hu holds 49% of shares in QZH and Billabong, a third party holds 11% of the shares in QZH and Billabong and QZH holds all the shares in Green Estate and 624 Leakes. Mr Hu, CXF and CXH rely (DASC [5(g)]) on the Share Holding Agreement and contend (DASC [5(j)]) that OMP holds those shares on trust for Mr Hu. Mr Qiu was cross-examined as to these matters (T257ff).

50. Ms Huang’s evidence (Huang 19.11.25 [47]) is that, in August 2024, she discovered a transfer of $2.5 million from Boill Holding (Aust) Pty Ltd (“Boill Holding”) to CXH which she considered to be “anomalous”, which led to her inquiries concerning other transactions and to her subsequent discovery of other transactions, after she was provided with bank statements of Green Estate by Ms Tang and the accountant for Boill Holding in March 2025; and that in March 2025, she demanded an explanation for the challenged transactions (Huang 4.11.25 [146]). Mr Qiu also gives evidence of the subsequent discovery (Qiu 5.11.25 [65], [90]) of funds transfers from Green Estate to companies associated with Mr Hu. Mr Qiu also refers to his unsuccessful attempts to obtain an explanation of those payments from Ms Yu and to V2V’s commencement of its proceedings after that issue had arisen.

51. On 18 July 2025, solicitors acting for the Hu Parties sent a letter of demand to OMP requiring that 30 shares in QZH and Billabong be transferred to Mr Hu by 5:00pm on 25 July 2025 pursuant to the Share Holding Agreement (Hu 20.2.26 [91]).

52. I now turn to the affidavit evidence that has to date been read in the proceedings and the associated cross-examination. The Cross-Claimants have to date read three affidavits dated 4 November 2025, 19 November 2025 and 13 March 2026 of Ms Huang, who is a director of each of Green Estate, Billabong and 624 Leakes Road and QZH (together, “Melbourne Companies”). Ms Huang is also the sole director of Boill Holding and Boill (Aust) Pty Ltd (“Boill Australia”) and was a director of OMP.

53. Ms Huang there refers to the origin of the Boill Group and the business relationship between her husband, Mr Qiu, and Ms Yu. Ms Huang also observes that, between 2012 and 2016, Ms Yu assisted the cashflows of the Boill Group by providing bridging loans facilitated by Ms Yu’s company (“Huaijin”). Ms Huang also refers to meeting Mr Hu in 2016 on a visit to a winery associated with Mr Zhang. She also refers to a meeting at the Crown Hotel and Casino in October 2016 to discuss setting up a company for the investment of real property in Victoria. She refers to her understanding of the terms of the agreement then formed and to her and Mr Hu being appointed as directors of Green Estate, in addition to Mr Zhang. Ms Huang also addresses the funding of Green Estate by OMP and other entities associated with her and by Boill HK and Boill International. She there contends (Huang 4.11.25 [59]) that certain amounts recorded in the Share Holding Agreement were paid by Boill HK rather than by CXF as the Share Holding Agreement states. Ms Huang also refers to the acquisition of relevant properties by the Melbourne Companies.

54. Ms Huang’s evidence (Huang 4.11.25 [64]) is that, in later reviewing Green Estate’s bank statements, she discovered that funds (totalling a larger amount than is now claimed), were removed by Mr Hu from Green Estate between August 2017 and May 2018 without her authorisation or knowledge. She also refers to CXF’s subsequent purchase of the Lonsdale Property from a company associated with Mr Zhang, which she contends was funded by amounts that had wrongly been removed by Mr Hu from Green Estate. Ms Huang also refers to subsequent loans taken out by the Melbourne Companies from third parties, and her evidence is that this occurred after Mr Zhang and his wife did not make investment contributions into the Melbourne Companies, and she also refers to the exit of Mr Zhang and his wife from the arrangement in 2022.

55. Ms Huang gives evidence (Huang 4.11.25 [95]) of a meeting in April 2022 where Mr Hu provided her with a record as to the investments that she and the Hu Parties had made into the Melbourne Companies, to the effect that the Hu Parties had invested in excess of $18.5 million and Ms Huang had invested $11.89 million; Mr Hu told her that his investments were “much greater” than hers in the Melbourne Companies; and she (or more precisely OMP) agreed to hold the 30% of the shares in the Melbourne Companies previously held by Ms Wang on trust for Mr Hu on that basis. Ms Huang’s evidence (Huang 4.11.25 [103]–[104], admitted with a limiting order under s 136 of the Evidence Act as to her state of mind) is that she relied on a document prepared by Mr Hu, being the record of the parties’ respective investments, in signing the Share Holding Agreement in October 2022 and that it was not until March 2025, when she reviewed her investment contributions, that she realised that the investment figures that Mr Hu had provided her at the meeting in April 2022 meeting were incorrect. Ms Huang in turn addresses (Huang 4.11.25 [115]ff) a meeting in Shanghai in late July or August 2022 where the refinancing of third party loans to Green Estate and the other companies by a great uncle of Mr Hu was discussed, which was the genesis of the loans made by V2V to the Melbourne Companies.

56. By her second affidavit dated 19 November 2025, Ms Huang gives evidence of meetings in 2016. Ms Huang also refers to the incorporation of the Melbourne Companies and their acquisition of several properties, and to the circumstances in which she was asked to, and agreed to, authorise Ms Tang to operate Green Estate’s bank account, and she refers to her and Mr Qiu’s trust in Ms Tang. Ms Huang also then addresses events from 2017.

57. Ms Huang was cross-examined at some length by Mr Ng, then appearing with Mr Rizk for the Cross-Defendants, in the first stage of the hearing in March 2026. Ms Huang’s cross-examination had to be adjourned at one point when she developed significant breathing difficulties (T104), which later recurred (T107), although she then indicated she was able to continue her cross-examination. She gave her evidence through an interpreter. I do not seek to summarise her evidence in cross-examination here and I express no view as to her credit here where that would be a matter for the judge to whom the proceedings were referred if I disqualify myself, if her evidence is then led in the proceedings.

58. The Cross-Claimants have to date read five affidavits of Mr Qiu dated 5 November 2025, 15 March 2026, 21 July 2026, 8 August 2026 (which was read to address any formal issues as to the 15 March 2026 affidavit) and 10 August 2026. By his first affidavit dated 5 November 2025, Mr Qiu denies that he had been a director of the Melbourne Companies (Qiu 5.11.25 [4]), responding to an allegation made by the Cross-Defendants. Mr Qiu’s evidence (Qiu 5.11.25 [11]) is that he was not a director of Boill Holding and Ms Huang was the director of that company. He acknowledges that he was a director of OMP until 22 June 2022 and notes that Ms Huang was a director of OMP between 6 November 2015 and 21 November 2024. He also acknowledges that he is a director of Boill HK and the sole director of Boill International.

59. Mr Qiu outlines his background and his business activities in China and to the incorporation of Boill Australia on 1 December 2024, and notes that other Australian companies were also established to undertake other business activities. Mr Qiu’s evidence (Qiu 5.11.25 [43]ff) is that he had a long term and friendly relationship with Ms Yu who had been the Vice President of one his Chinese companies; he transferred the ownership of shares in Huaijin to her in about 2002 and that she had provided bridging loans (typically of two to three day terms) to his People’s Republic of China (“PRC”) companies, facilitated by Huaijin; and that he “trusted her very much”. Mr Qiu also refers (Qiu 5.11.25 [48]ff) to having been introduced to Mr Zhang in Shanghai in about 2010 and to meetings in 2016.

60. Mr Qiu’s evidence (Qiu 5.11.25 [56]) is that he told Ms Yu, during 2019, that he was not a director of the Melbourne Companies; that he and Ms Huang thought and operated differently; and that Ms Yu and Mr Hu should speak to Ms Huang about “these important matters”. Mr Qiu addresses the funding that he contended that he and entities associated with Ms Huang and him had provided to Green Estate, which he contended totalled $9.94 million between November 2016 and July 2017 and $23,427,425 between 2017 and 2018, including the Disputed Payments. Mr Qiu’s evidence is that (Qiu 5.11.25 [59]), in total to May 2018, entities associated with him and Ms Huang had contributed $33,367,425 to be transferred to Green Estate “pursuant to the Joint Venture Agreement”. Mr Qiu’s evidence (Qiu 5.11.25 [74]ff) is that, until 2022, he was not aware of the monies that had been taken out by the Melbourne Companies for the benefit of Mr Hu’s companies and he trusted the management team of the Melbourne Companies to manage those companies in the best interests of those companies. Mr Qiu also addresses subsequent events.

61. By his second affidavit dated 15 March 2026, Mr Qiu outlines methods used to transfer funds from Boill PRC to Boill HK, including an arrangement which he describes as “Foreign Exchange Offset Transfer”. Mr Qiu’s evidence (Qiu 15.3.26 [18]) is that that arrangement involved, broadly, Boill PRC remitting an agreed sum of RMB to a third party in the PRC with that third party then arranging for its affiliated Hong Kong entities to transfer the equivalent sum in foreign currency (often in HKD or USD) to nominated Boill Group companies in Hong Kong, with Boill PRC paying a fee to the third party in the PRC for its assistance. Mr Qiu’s evidence is that that arrangement was only ever used to transfer funds of the Boill Group companies and not to transfer third party funds.

62. Mr Qiu also outlines the internal approval process adopted within the Boill Group for the transfer of funds from Boill PRC to the Boill Group companies in Hong Kong (Qiu 15.3.26 [31]) and the funds approval process in Hong Kong for the transfer of funds from the Boill Group companies in Hong Kong to the Boill Group companies in Australia (Qiu 15.3.26 [34]ff). He notes that several executives would first review and approve a payment approval notice before his final review, including Ms Xia, Mr Lu, Mr Luo and Mr Yuan, and that Mr Qiu then had to approve a payment approval notice before a transfer was effected. His evidence is also that, given the diversity and scale of business ventures, he would sign payment approval notices amounting to RMB100 million of transfers in and out of various Boill Group entities in the PRC and Hong Kong daily and that he trusted and relied on his executives and management team to ensure that requested payments were correct and properly accounted for.

63. Mr Qiu then outlines the process adopted to fund companies in Australia that are related to Boill PRC and are controlled by Ms Huang and Mr Qiu, and addresses the process adopted for the transfer of funds to OMP in March 2017. Mr Qiu also addresses requests for funding by the Melbourne Companies in connection with each of the Disputed Payments, although significant parts of his evidence as to a first payment in August 2017 were not read; he addresses the process for a second payment in September 2017 (Qiu 15.3.26 [107]ff), the third and fourth payments in September 2017 (Qiu 15.3.26 [128]ff) and the fifth payment in April 2018 (Qiu 15.3.26 [204]ff). Mr Qiu also responds, at length, to several affidavits read by the Cross-Defendants in the proceedings.

64. By his third affidavit dated 21 July 2026, Mr Qiu responds to affidavits led in the Cross-Defendants’ case. By a fourth affidavit dated 10 August 2026, Mr Qiu makes minor corrections to his earlier affidavits. Mr Qiu was also cross-examined at length by Mr Cook, with whom Mr Ng and Mr Rizk then appeared for the Cross-Defendants, on the resumption of the hearing in August 2026. I do not seek to summarise his evidence in cross-examination here, and I express no view as to his credit here where that would be a matter for the judge to whom the proceedings were referred if I disqualify myself, if his evidence is then led in the proceedings.

65. The Cross-Claimants read the affidavit dated 7 March 2026 of Mr Guanghua Yuan, who was not available for cross-examination. The parties agreed that affidavit could be read without cross-examination on condition that no inference adverse to the Hu Parties would be drawn from their inability to cross-examine Mr Yuan on his affidavit, and in particular, from any failure to contradict any evidence of Mr Yuan. Parts of Mr Yuan’s evidence were not admissible and were not admitted.

66. Mr Yuan was the former Deputy Managing Director of Boill PRC in 2021 and he outlines its business activities and observes (Yuan 7.3.26 [8]) that Boill PRC would typically source funds and transfer them to the Boill HK companies for overseas investments and other projects. His evidence (Yuan 7.3.26 [9]) is that the Boill HK companies would receive funds from Boill PRC through currency conversion transfers using banks in the PRC and Hong Kong, currency conversion transfers with third parties, and loans; and that (Yuan 7.3.26 [10]):

“I recall Mr Qiu had personal projects overseas and that from time to time, he would use the Boill HK Companies to distribute his investments into.” [sic]

67. Mr Yuan also refers (Yuan 7.3.26 [12]ff) to the payment approval process within Boill PRC and to his signature of payment approval notices in respect of the disputed transactions. Mr Yuan’s evidence (Yuan 7.3.26 [40]–[42]) is also that:

“In or around mid-2025 I received a call from Ms [Yu]. Ms Yu asserted that she caused various funds to be transferred into Boill HK Companies in or about 2017 to 2018 as part of a collect and pay arrangement for her benefit.

I am not aware of any collect and pay arrangements involving Boill HK Companies and Ms Yu’s entities for the benefit of Ms Yu.

I searched the books and records of Boill PRC and I did not find any evidence of collect and pay arrangements involving Boill PRC and Ms Yu’s entities.”

68. The Cross-Claimants have also read the affidavit dated 16 March 2026 of Mr Liu, who was the Deputy Chief Financial Officer of Boill PRC from about October 2017 to September 2018 and was not required for cross-examination. Mr Liu outlines the methods used to transfer funds between a bank holding them for Boill PRC and a bank for a related party, and he also refers to the process adopted for funds transfers with third party companies with pre-existing relationships to facilitate foreign exchange. Mr Liu also refers to a common practice where funds were provided from Boill PRC to Boill HK companies and then to the Boill Group’s associated entities in Australia. Mr Liu also outlines the payment approval process adopted by the Boill Group companies, including the use of payment request approval notices, and refers to the payment approval notices in respect of several transactions in issue in these proceedings.

69. The Cross-Claimants have also read the affidavit dated 6 March 2026 of Mr Kam Ming Ng, who was not required for cross-examination. Mr Ng was the former financial controller and company secretary of Boill Health Care Holdings Ltd from August 2019 until March 2024; and he gives evidence as to matters relating to Ms Yixing Yu, who plays a role in the events, and as to payment practices and the use of company seals and “chops” within the Boill Group.

Several difficulties in the proceedings

70. At this point, I should set out several difficulties which arise in the proceedings. First, although there are a relatively small number of significant documents in issue in the proceedings, significant dealings between the parties took place orally, and at least the Cross-Defendants contend that several loan agreements that were relied on to make the substantial transfers of funds from companies in Singapore and Hong Kong to companies in China and then to Green Estate were shams, in the sense that they were not intended to have effect in accordance with their terms. A second issue arises, at least in respect of warnings that will need to be given to witnesses, including third party witnesses, as to whether the transfer of the funds to Australia from Singapore and Hong Kong on the basis of sham loan agreements may raise issues under Australian anti-money laundering legislation. Both of these issues also arise in this disqualification application.

71. Third, the Cross-Claimants allege that evidence led by the Cross-Defendants sourced from third party companies within the Boill Group has been obtained through multiple improprieties that took place while the proceedings were adjourned between March and August 2026. At least four objections are made by the Cross-Claimants to an affidavit dated 25 June 2026 of Mr Lu on the basis, inter alia, that evidence was allegedly improperly obtained, in that case by Mr Lu as a former employee or consultant associated with the Boill Group who, it is contended, used his access to the Boill Group’s computer systems to obtain access to the documents between the first and second hearings in this matter. At least fifteen objections are made to an affidavit dated 16 February 2026 of a second witness whose evidence is relied on by the Cross-Defendants, Mr Luo, on the basis that he improperly obtained documents in breach of duties of confidence to his former employer, also a company in the Boill Group, also between the hearings of this matter in March and August 2026. Two further objections are made to the affidavit dated 30 June 2026 of Mr Li Zhou on the basis that he also obtained documents in breach of duties of confidence to his former employer, also a company in the Boill Group, also in the period between the hearings in March and August 2026.

72. Access to the documents noted above was obtained by the Cross-Defendants without their seeking or obtaining disclosure orders, third party discovery orders against the Boill Group or leave to issue subpoenas outside the jurisdiction from the Court. If I had not disqualified myself from continuing to hear the proceedings, I would likely have addressed these issues together and given my reasons for any ruling in a final judgment at the conclusion of the proceedings.. I address the matters that arose on 18 and 19 August 2026 and the Appeal Judgment below.

The applicable principles

73. I now turn to the applicable principles. Decisions including Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 300; [1983] HCA 17 (“Livesey”) and British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139] (“Laurie”) have recognised the significance of the apprehended bias rule in respect of the public's perception of neutrality in litigation and, by extension, public confidence in the administration of justice. I give full weight to those considerations.

74. In Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39, Mason J referred to the significance of the judge's duty to hear a matter, unless properly disqualified from doing so, where that matter is allocated to him or her. His Honour there referred (at 352) to the situation where a judge had previously decided questions of fact and law, and emphasised that the question was not whether a judge had previously reached such a decision, at large, but whether the judge's previous decisions "provide an acceptable basis for inferring that there is a reasonable apprehension that he [or she] will approach the issues" in the same way or could not be persuaded to a different view.

75. In Webb v The Queen (1994) 181 CLR 41 at 74; [1994] HCA 30, to which Mr Williams refers, Deane J identified four primary categories of cases for disqualification as follows:

“The area covered by the doctrine of disqualification by reason of the appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniary or otherwise, gives rise to a reasonable apprehension of prejudice, partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consists of cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first […] and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification by extraneous information.” [emphasis added]

Mr Williams here submits that this application is concerned with the second category identified by Deane J.

76. The relevant test for disqualification for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (“Ebner”); Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]. The plurality in Ebner observed at [6]–[7] that:

“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge … the governing principle is that, subject to qualifications relating to waiver … or necessity … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. …

The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.”

77. The plurality also observed (at [8]) that:

"The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."

78. The plurality also there recognised (at [19]) that judges have a duty to exercise their judicial functions; judges do not select the cases they will hear; and they are not at liberty to decline to hear cases without good cause. The plurality also observed (at [20]) that, in a case of real doubt, it will often be prudent for a judge not to sit in order to avoid the inconvenience which might arise if an appellate court took a different view.

79. In Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, the Court expressed the applicable test at [11] as “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”. The Court also there observed at [13]–[14] that:

“Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly [(1989) 167 CLR 568 at 571] Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

There was argument in this court, prompted by Anderson J's explanation of what he intended to communicate, about whether the effect of a statement that might indicate prejudgment can be removed by a later statement which withdraws or qualifies it. Clearly, in some cases it can. So much has been expressly acknowledged in the cases. No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.”

80. I also bear in mind the observations of Brereton J in British American Tobacco Australia Ltd v Gordon [2007] NSWSC 109 at [62]–[63] that, in matters of this kind:

“The decision whether a judicial officer might not bring an impartial mind to the resolution of an issue does not involve prediction: the question is one of possibility (albeit real and not remote), not probability… For a judge to be disqualified, there must be a ‘substantial basis’ for the conclusion of apprehended bias; the apprehension must be ‘firmly established' …

The hypothetical fair-minded observer is a lay person informed as to the relevant facts of the case, sufficiently knowledgeable to bring a rational and reasonable assessment to bear on the question of whether the judge might be biased, and having a basic knowledge… that a judge is a professional who by training, tradition and oath is required to discard irrelevant, immaterial and prejudicial material and can be ordinarily assumed to comply with the judicial oath.”

81. In Chamoun v District Court of New South Wales [2018] NSWCA 187 at [36]–[37], Gleeson JA (with whom Hulme J and Button J agreed) observed, by reference to the High Court authority that:

“The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias…

The application of the apprehension of bias principle requires two steps. The first is the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy [2000] 205 CLR 337; [2000] HCA 63 at [8]; Michael Wilson & Partners v Nicolls at [63].”

82. In CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [57], to which Mr Williams refers, Nettle and Gordon JJ observed that:

“First, one must identify what it is that might lead a decision-maker to decide a case other than on its legal and factual merits. What is said to affect a decision-maker's impartiality? Partiality can take many forms, including disqualification by direct or indirect interest in the proceedings, pecuniary or otherwise; disqualification by conduct; disqualification by association; and disqualification by extraneous information. … ”

83. In Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11], the joint judgment of the High Court set out that:

“Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that “a judge is disqualified if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.” [footnotes omitted]

84. In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 at [27] (“QYFM”), Kiefel CJ and Gageler J made reference to the "jurisdictional significance" of bias and noted that it is the responsibility of the court as an institution and not merely a member of the court to deal with such questions. Their Honours also observed (at [37]) that a judge is disqualified if “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. Mr Williams rightly points out that this test is often referred to as the “double might” test, to emphasise that the criterion is concerned with “possibility (real and not remote), not probability”: QYFM at [37] (Kiefel CJ and Gageler J) and [69] (Gordon J).

85. In QYFM at [38]), Kiefel CJ and Gageler J observed that the application of the “double might” test requires a three-stage analysis, entailing (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer. Their Honours also addressed the concept of the fair-minded lay observer and observed (at [47]–[49]) that:

“Being “fair-minded”, the observer “is neither complacent nor unduly sensitive or suspicious”. Yet the observer is cognisant of “human frailty” and is all too aware of the reality that the judge is human. The observer understands that “information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making”.

Being “lay”, the observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge”. Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard “the irrelevant, the immaterial and the prejudicial” and to discharge the judicial function uninfluenced by past professional relationships, “the public perception of the judiciary is not advanced by attributing to the ... observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case”. This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath.

Nor is the observer so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias…” [citations omitted]

86. Gordon J also there observed (at [70]) that:

“… [T]he test is not prescriptive about the ways in which a reasonable apprehension might arise. ‘The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty’. Indeed, the apprehension may not even be of a consciously impartial mind. The test encompasses apprehension of unconscious bias: ‘the hypothetical observer would recognise that judges are human, not a ‘passionless thinking machine’ or robot just assessing information’.” [footnotes omitted.]

87. Her Honour also noted (at [96]) that:

“First, there are a judge’s professional and ethical obligations. A recusal application raises both a matter of professional and ethical obligations for the individual judge and a matter that goes to the Court’s jurisdiction as constituted. A judge has a professional obligation to sit on any case allocated to them unless there are grounds for recusal. As the plurality explained in Ebner:

‘Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges.’

A judge, equally, has a duty not to sit where there is a reasonable apprehension of bias. “[I]n the end the decision to sit or not to sit must rest comfortably with the judicial conscience” [citations omitted].

88. Edelman J also there observed (at [175]) that:

“once sufficient facts exist to raise the possibility of … apprehended bias. It does not matter if the possible apprehension of a fair-minded lay observer involved only the possibility of a mind affected in a small degree by bias. A perception of only a little bias will invalidate a decision. Once the line of bias is crossed, there are no degrees of permissible judicial bias”

89. In Director of Public Prosecutions (NSW) v TH [2026] NSWCCA 125 at [10], the Court of Appeal observed that:

“In some restatements of principle, the assessment of whether any asserted apprehension of bias is “reasonable” is described as a third step: see for example SunshineLoans Pty Ltd v Australian Securities and Investments Commission [2026] HCA 8; 100 ALJR 489 at [60] and [173]. As Edelman J observed in the same case at [105], another way of describing how the principle is applied is “two anterior steps followed by the ultimate evaluation process”. We proceed on the basis that the distinction is merely verbal. … ”

90. The Court of Appeal there noted (at [22]) that the test for disqualification for apprehended bias

“is framed at an objective, and undemanding, level, disconnected from predictions of what the particular judge might actually do, because of the importance accorded by the Australian legal system to justice being done, and being seen to be done, by an independent, impartial judiciary.”

91. Mr Williams also refers to R v Lusink*;* Ex parte Shaw (1980) 32 ALR 47 at 55, where Aikin J observed that repeated denials of prejudging may convey the impression of “protesting too much”. While I recognise that possibility, I also recognise that a statement that a trial judge has not determined a matter or does not have a view as to a matter at a point in time may reflect the fact. There are other cases which have recognised the need to assess a judge’s comments as a whole, including by reference to any qualifications in them, including Laurie at [97].

92. The case law also establishes that the principle of apprehended bias is not engaged merely because a judge expresses preliminary views in the course of a hearing, unless the nature of the preliminary views, the manner in which they are expressed and the circumstances as a whole show that the judge is unwilling to depart from them irrespective of the evidence and the submissions of the parties: Antoun v R (2006) 224 ALR 51; [2006] HCA 2 at [27], [29], [33], [81], [87]; Russell v Eaton [2020] VSCA 249 at [59]. Recent Australian cases have recognised that the time in which a judge sits silently, during the conduct of lengthy proceedings, so that the parties only first have any access to his or her preliminary thinking when a judgment is delivered, is long gone. In Re 1derful Pty Ltd (rec apptd*) and the 1derful Group Pty Ltd (rec* apptd*)* [2024] NSWSC 1278 at [12] (“1derful”), I observed that:

“It is plain that, in the course of a hearing that lasts several days, there is a real possibility that a judge will form preliminary views. Those views will arise, in the continuing process of the assessment of evidence, the review of documents, and the exchange with Counsel which occurs by way of submissions. Those views, in the proper performance of a judge’s functions, will be preliminary views. They will be open to change, as further evidence emerges, and they will be open to change in submissions, which cast additional light upon matters, or displace a preliminary view, or indicate that it is well founded. Preliminary views are no more, and likely less, dangerous to a party where they are disclosed, rather than undisclosed. A preliminary view which is undisclosed has the difficulty that a party will never have the opportunity to address it, but that does not mean it will not exist. A preliminary view which is disclosed has the advantage, for a party, that he or she is afforded procedural fairness by the opportunity to address it. In those circumstances, there is a potential difficulty with the proposition that the exposure of preliminary views gives rise to apprehended bias, because it is plainly in tension with the proposition that parties should be afforded procedural fairness, by having exposed to them matters which may be adverse to them, so that they have an opportunity to respond to those matters, with the result that justice is more rather than less likely to be done.”

93. I recognise that, in Manly Fast Ferry Pty Ltd v Wehbe [2021] NSWCA 67 at [121], Leeming JA observed that:

“… there is an important difference between judicial interventions during submissions, and judicial interventions when evidence is being adduced. This was emphasised in the recent review of authority in Serafin v Malkiewicz [2020] UKSC 23; [2020] 4 All ER 711 at [40] – [43] . Lord Wilson writing for the Court endorsed Denning LJ’s statement in Jones v National Coal Board [1957] 2 QB 55 at 65 that “interventions should be as infrequent as possible when the witness is under cross-examination”, Jonathan Parker LJ’s statement in Southwark London BC v Kofi-Adu [2006] EWCA Civ 281 at [145] – [146] that interventions during oral evidence continued to give rise to the risk of rendering the trial unfair, and Lord Brown’s observation in Michel v R [2009] UKPC 41; [2010] 1 WLR 879 at [31] (also endorsed by Basten JA in Nguyen), that:

‘The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.’”

94. I recognise that, as Mr Williams submits, a judge’s duty to sit is not absolute and that, in QYFM at [129], Edelman J preferred the formulation that “a judge should not too readily disqualify themself”. However, I should also bear in mind, in applying these principles, matters to which Rees J referred, where an application was made in the course of a trial to disqualify her Honour from sitting in that trial, in Aquamore Fund 2 Pty Ltd v Church Point Apartments Pty Ltd (recs and mgrs apptd*)* [2023] NSWSC 511 (“Aquamore”) at [56]ff. Her Honour observed that, plainly enough, it would be easy, from a personal perspective, for a trial judge against whom an allegation of apprehended bias is raised to recuse himself or herself without further ado, but that would involve a failure to exercise his or her judicial function. Her Honour there referred to Livesey at 294 and to Ebner at [19]–[21], which I noted above, where the plurality of the High Court observed that judges do not choose their cases and litigants do not choose their judges, and that a judge has the obligation to hear the matters which are allocated to him or her, unless a reasonable apprehension of prejudgment or bias arises so that the judge should refrain from sitting.

The first and second grounds for the application

95. Mr Williams identifies five grounds for this application. He makes clear that he relies on each of these grounds, including the third through fifth grounds, individually and cumulatively, and I approach the application on that basis. Where the separate grounds are not established, the whole of them are also not established, although I find below that I must now disqualify myself on a different basis than that for which Mr Williams contends.

96. Mr Williams identifies the first ground as relating to my conduct on the afternoon of the hearing on 18 August 2026, an email by my Associate which drew attention to applicable statutory provisions, and my conduct and ex tempore decision delivered on 19 August 2026. These matters are reviewed in the Appeal Judgment and Mr Williams also relies on that judgment. Mr Williams identifies the second ground as that I had expressed “views” that legal representatives had engaged in improper or illegal conduct on 18 August 2026. I should immediately make clear that I did not express any such views at the time, and I consider that a fair-minded lay observer would also not consider that I had done so. I again sought to clarify the position, for what it is worth, in the course of this hearing (Application, T16) as follows:

“The case law, however, does recognise that, as a matter of fairness, if there is a risk that something I have said has been misunderstood, I should clarify it. You are not obliged to accept that clarification, of course, and it may be that you will not do so, but nonetheless, I should clarify that I did not intend, at any point, to make a statement [as to these matters]. I could not have made a statement because I had no evidence before me as to the relevant matters. I identified a question and I invited legal representatives to consider that question. That was my intent. If I did not express that intent clearly, then I apologise to all the parties. I make that observation for what it is worth. Parties are not obliged to accept it. But in fairness, I should make that clear.”

97. It is convenient to deal with these two grounds for disqualification together, where Mr Williams treats them as interconnected. I should first address the relevant events. An issue arose at the hearing on the afternoon of 18 August 2026 in respect of the first of at least 21 objections to the Cross-Defendants’ affidavit evidence made by the Cross-Claimants on the basis that the deponents had allegedly obtained improper access to documents of a third party, the Boill Group, between the first and second stages of the hearing in March and August 2026. That issue arose when objection was taken to part of Mr Lu’s evidence as to documents derived, it appears, from his obtaining documents in the period between the hearings in March and August 2026 from the Boill Group’s computer system, which he then addressed in his evidence led in the Cross-Defendants’ case. It appears there are dispute(s) as to whether Mr Lu had access to that system because he was a consultant to the Boill Group or a person associated with Boill Group, and whether any such access permitted extracting documents in the particular circumstances. As I noted above, irrespective of any impropriety involving Mr Lu, no order had been made by the Court in respect of third party production of documents by the Boill Group.

98. I should acknowledge that this matter caught me by surprise on the afternoon of 18 August 2026. I had not previously struck a case of a third party’s documents being obtained in this (alleged) way, in the course of ongoing proceedings, in 22 years as a practitioner and in 15 years as a Judge. I should also fairly acknowledge that I raised concerns about that matter and any issues that it may raise for legal representatives. I also accept that I did so in terms that were put too strongly, although I also made clear (and it was the fact) that I had formed no view as to whether any improper conduct had occurred and that I had reached no adverse finding of any kind. I again made that clear in the course of the hearing of this application, and I again make that clear in this judgment.

99. I should add, for good order’s sake, that I was not then dealing with the operation of s 138 of the Evidence Act 1995 (NSW) (“Evidence Act”) and did not then hold the views (or the consequential misunderstanding) which the Court of Appeal attributed to me in the Appeal Judgment at [25] and [28]ff. I was, instead, concerned as to any difficulties which may have faced legal representatives arising from other areas of the law. I also did not in fact have in mind the proposition attributed to me in the Appeal Judgment at [36] that:

“His Honour appears to have had in mind that if a legal representative seeks to tender evidence which had in the past been obtained unlawfully in the first instance by the witness or somebody else, the lawyer somehow becomes involved in an ongoing criminal offence. We state unequivocally that any such proposition is incorrect. Given this appears to have been a proposition that led Mr Cook SC and his colleagues to conclude that they were in a position of conflict, any perception of conflict ought now disappear.”

100. Instead, I had in mind that I did not know whether the multiple allegations of improper access to third party documents between the first and second stages of the hearing would give rise to any difficulty for any legal representative in any aspect of the matter, and I also did not know whether any legal representatives had turned their minds to that matter. As I noted in the ex tempore judgment, I also then thought it possible that unauthorised access to computer systems (if it had occurred) might be unlawful, although I had not then identified s 308H of the Crimes Act 1900 (NSW), the consideration of that section in Salter v D**irector of P**ublic P**rosecutions (NSW) (2011) 81 NSWLR 192; [2011] NSWCA 190 and s 478.1 and Division 15 of the Criminal Code Act 1995 (Cth) and their extraterritorial application in some circumstances, which I later drew to the parties’ attention (as the Appeal Judgment noted at [11]). I again note, as I made clear at the time, that I had formed no view that was adverse to any of the legal representatives in that regard.

101. I then thought it possible that s 138 of the Evidence Act and the criminal law (if applicable) may operate in parallel. I also thought it possible, second, that a legal representative properly could, and possibly should, in the exercise of their professional obligations, decline to put forward evidence that was illegally or improperly obtained (if that had occurred) in a sufficiently egregious case. I again have no view and express no view, including throughout the balance of this judgment, as to whether this is such a case. I appreciate that a different view as to some or all of these matters has likely been expressed in the Appeal Judgment at [42], to which I would give effect, that:

“… there is no need for us to decide whether the relevant evidence had been obtained improperly or illegally by the witness. Assuming for the sake of argument that it was, as we have explained above, this would not mean that legal representatives who then sought to tender the evidence so obtained would themselves become tainted with that earlier impropriety or illegality. At the risk of repetition, no such allegation is made or could properly be made [sic] is entirely orthodox for parties, including prosecutorial authorities, to seek to rely on evidence in circumstances where it is either established or conceded that the evidence was obtained improperly or illegally.”

102. In any event, I adjourned the matter on the afternoon of 18 August 2026 to the next day. On 19 August 2026, Counsel for the Cross-Defendants indicated that they would return their briefs and that the solicitors acting for the Cross-Defendants would seek leave to cease to act and sought an (implicitly, long) adjournment of the proceedings for the Cross-Defendants to retain new legal representation. I did not allow a long adjournment, but offered an adjournment to the following week, for the reasons set out in my ex tempore judgment. The Cross-Defendants then requested a shorter adjournment while they sought leave to appeal from my judgment, and I allowed that shorter adjournment and then extended it until after the Court of Appeal heard the matter. On 21 August 2026, the Court of Appeal granted leave to appeal and allowed the appeal for the reasons set out in the Appeal Judgment. I recognise that the Appeal Judgment indicates that my approach to these issues was in error in significant respects.

103. The Appeal Judgment also observed (at [44]) that:

“The proceedings raised some complex issues, as is evident from the brief description ... This complexity necessarily bears upon an assessment of what reasonable time would be required by replacement legal practitioners to come into the proceedings on behalf of the appellants.

After the four days of hearing in March as well as the four days of hearing in August, it is unsurprising that the case had generated a substantial mass of material, comprising a total of six volumes of the Court Book and Supplementary Court Book and involving no less than 26 affidavits, some of them lengthy.

Although cross-examination of the respondents’ witnesses was complete by the eighth day of the trial, two of those witnesses had been cross-examined over several days. It is not an overstatement to say, as the appellants do, that “absorbing and understanding the transcript of the cross-examination would pose a monumental challenge for any new counsel”.

104. Had a change in the Cross-Defendants’ legal representatives now been proceeding, I would have proceeded in accordance with the observations at Appeal Judgment [44] in setting down a date for the recommencement of the hearing. As events have developed, no issue as to the need for new legal representatives now arises, given the subsequent reversal of the Cross-Defendants’ position noted below, after the issues were clarified by the Appeal Judgment.

105. The Court of Appeal also observed (at Appeal Judgment [46]) that:

“It is preferable, with the primary judge’s familiarity with the case as a whole and his knowledge of his own availability, for the adjournment application to be remitted to him for reconsideration, taking into account these reasons for judgment. That will also allow the appellants’ legal representatives to consider their position in light of our reasons, before the parties and the Court address the way forward. The clarification of matters set out above ought make clear that there was and is no basis to apprehend that the s 138 objection raises issues of personal impropriety or illegality on the part of legal representatives, which in turn means that there is no ongoing reason to perceive a conflict of interest that would justify or require the withdrawal of those representatives.”

106. In order to give effect to the Court of Appeal’s remittal of the matter to me, and prior to this disqualification application having been raised, I advised the parties of two possible date ranges for the proceedings to continue, in November and December 2026, subject to hearing from them further. In the event, as I noted above, it is now possible for the Court to allocate continuing hearing dates next week, either before me or before another judge if this application is successful, where no change of legal representatives will now occur.

107. The last stage in these developments was that, after I advised the parties of those possible dates, the Cross-Defendants advised my Associate by email dated 24 August 2026 that:

“In light of the Court of Appeal's judgment in [the Appeal Judgment], the legal representatives of the Cross-Defendants have taken the view that they are no longer obligated to withdraw from this matter and will therefore continue to act in this matter.

As a courtesy to His Honour, we give notice on behalf of the Cross-Defendants that an oral application for His Honour to disqualify himself will be made tomorrow at 9:15 am. The Cross-Claimants intend to oppose this application.

The legal representatives for the Cross-Claimants are copied to this email and it is sent with their consent.”

108. Returning now to the first and second grounds raised in Mr Williams’ submissions, Mr Williams repeatedly referred, in the course of his submissions, to the “observations” which he attributes to me as to issues arising from Mr Lu’s affidavit. He refers, at length, to the exchanges with Counsel on the afternoon of 18 August 2026 which were set out in the Appeal Judgment at length. Mr Williams rightly points out that I had then raised concerns (although he put it more highly at times) as to the legal representatives’ position, if unlawful conduct was established in respect of Mr Lu’s evidence.

109. I recognise that a fair-minded lay observer would consider, on a review of the transcript for 18 August 2026 that, on occasion, I put questions in terms that were too strong (for example, T400, as I acknowledged in the course of this hearing at T18), although I also made clear, on several occasions, that I had not formed views as to the question which I had raised. I also sought to clarify that position, for what it is worth, in the course of this hearing (see for example, Application, T18).

110. Mr Flynn (who appears with Mr Golledge, and with whom Ms Zhu appears, for the Cross-Claimants) in turn draws attention to my then observations that I might be wrong as to the nature of the issues that had been raised (V2V proceedings, T404); that I was raising a question for Counsels’ consideration (V2V proceedings, T404); and that, in effect, it was a matter for the legal representatives as to whether they were comfortable as to their positions (V2V proceedings, T406) and that any issues as to Mr Lu’s evidence would likely need to be addressed on a voir dire when the matter resumed on the next day. Mr Flynn submits that a fair-minded lay observer would read what I had said with the qualifications to it and Mr Williams, in substance, rejects that proposition.

111. Mr Williams also refers to the transcript on 19 August 2026, where Mr Cook had indicated that he and other Counsel would seek to withdraw, and solicitors instructing him would seek leave to cease to act, in an exchange which has also been set out in the Appeal Judgment. Mr Williams also draws attention to observations made by Payne JA and Griffiths JA in the transcript of the appeal (Ex A1), on which he relies to indicate their Honours’ disapproval of my conduct of this aspect of the proceedings. This is the first occasion on which I have been shown the transcript of appellate judges’ criticisms of my conduct of a trial, made in the course of argument in an appeal, although likely not the first occasion on which such criticisms have been made. A trial judge ordinarily would not (and, I think, plainly should not) see the transcript of an appeal against his or her judgment, particularly in the context of an ongoing hearing.

112. Mr Williams also draws attention to the content of the Appeal Judgment and to the conclusion reached in that judgment that, as I have acknowledged above, I was in error, in significant respects, in not allowing a longer adjournment when it was suggested that the Cross-Defendants’ Counsel and solicitors would cease to act, although that has now not occurred. I have acknowledged that error above.

113. As I have indicated above, a review of the transcript of 18 August 2026 and the Appeal Judgment demonstrates that I had expressed observations too strongly on the afternoon of 18 August 2026, and I frankly acknowledge that error. Nonetheless, it seems to me that a fair-minded lay observer would recognise that I was not making “observations” in any sense of expressing views as to relevant issues, because I made that clear at the time; I could not then have known and did not then know (and I do not now know) the facts of any involvement, or lack of involvement, of legal representatives in relevant matters; and I was instead identifying a question which might need to be considered by the legal representatives. I also recognise that a fair-minded lay observer would also consider that (and I acknowledge that) I should have identified the questions that troubled me in much more measured terms, but it seems to me that a fair-minded lay observer would also recognise that I would have immediately accepted any statement made by Senior Counsel that the legal representatives were comfortable that no issue of concern arose, had such a statement been made. That fair-minded lay observer would recognise, and I recognise, that Mr Cook had addressed his personal position in that regard.

114. Mr Williams submits that these matters have a logical connection with the feared deviation from the course of deciding the case on its merits, where it will be necessary for me to rule on objections to affidavits of Mr Lu and Mr Luo made under s 138 of the Evidence Act on the basis that their content, or at least the documents to which they refer, were allegedly improperly obtained. It seems to me that the fair-minded lay observer would not think that there is any real risk that such a deviation may occur, because I was there addressing a question whether, if there existed a difficulty in the manner in which Mr Lu had obtained the evidence, that difficulty gave rise to any difficulties for the legal representatives. The fair-minded lay observer would recognise that I could not then have reached and had not then reached any view as whether that difficulty existed in respect of Mr Lu’s evidence.

115. Mr Williams also points to the error identified by the Court of Appeal in not adjourning the proceedings for a longer period when it seemed that the then Cross-Defendants might withdraw from the proceedings, although that has not occurred. I acknowledge that error. However, it seems to me that the fair-minded lay observer would see that as an error in balancing the relevant factors, including the effect of further delay in proceedings that had long been delayed, and not as identifying a factor which might lead me to resolve any question in the proceedings other than on its legal and factual merits.

116. It seems to me that a fair-minded lay observer, properly informed as to the nature of the proceedings, would also recognise that the errors that I made in the ex tempore judgment, as found by the Appeal Judgment, have been corrected by the Appeal Judgment, and that is of course properly the role of an appellate court in correcting error by a trial judge. That Appeal Judgment confirms that, as Mr Flynn indicated before me and confirmed in the Court of Appeal, the Cross-Claimants’ objections under s 138 of the Evidence Act are directed to impropriety, arising from an alleged contravention of a duty of confidentiality, and not to any question of illegality. A fair-minded lay observer would recognise that I have expressed no views as to the matters raised by an objection on that basis. That Appeal Judgment also establishes that there was no occasion for me to be concerned as to the position of the legal representatives in respect of any potential illegality in Mr Lu’s access to the Boill Group’s computer systems, where no party had raised that issue, and that I was in error on the afternoon of 18 August 2026 in that regard. It seems to me that the fair-minded lay observer would have no concern that, where that matter has been made so clear by the Appeal Judgment, I would now approach the matter in any different way.

117. It therefore seems to me that apprehended bias is not established on the first and second grounds put by Mr Willams.

118. However, it seems to me that apprehended bias has now arisen, partly as a result of the manner in which this application was conducted, on a different basis to that put by Mr Williams. A fair-minded lay observer would now be concerned that the combined effect of my errors on the afternoon of 18 August 2026; the fact that I was taken by Mr Williams in this application to the transcript of the appeal and to adverse observations in that transcript as to my approach on the afternoon of 18 August 2026, which I would not ordinarily have seen; the content of the Appeal Judgment; and the submissions made by Mr Williams in this application, together create a real risk that I would now hesitate to rule adversely to the Cross-Defendants on any matter, lest it might again be contended that I might be biased against them. Subjectively, I consider that I should be and would be sufficiently robust to acknowledge the errors that I have in fact made, and then continue to perform my duty, but that is not the test for apprehended bias. A fair-minded lay observer might also think it probable that I would in fact be sufficiently robust to do so. However, it seems to me that that observer would remain concerned that there existed at least some risk that I would not do so and would instead too readily accept propositions put by the Cross-Defendants so as to avoid continuing criticism by them. It seems to me that that concern has a logical connection with a divergence from a decision on the merits, to the advantage of the Cross-Defendants and the disadvantage of the Cross-Claimants, contrary to the position for which Mr Williams contends.

119. Mr Williams did not submit that a fair-minded lay observer would not consider that this risk existed. Mr Flynn indicated that the Cross-Claimants did not raise this risk, but also did not waive (nor was there any reason to think that they should waive) any apprehended bias to their disadvantage which arose from it. I have concluded that I should disqualify myself from continuing to hear the proceedings on this basis.

The third ground for the application

120. Mr Williams identifies the third ground for this application as relating to a suggestion that persons associated with the Cross-Defendants had engaged in improper or illegal conduct, and as including suggestions of money laundering and the possibility that the financial statements of Green Estate did not accurately record the position as to certain loans which are in issue in the proceedings. I accept that I have raised concerns as to these matters, and I have been significantly troubled by the issue as to how witnesses’ evidence as to these matters is to be treated. However, it has always been clear that, if any issue arises in that respect, it extends to both the Cross-Claimants and the Cross-Defendants, and the concerns that I identified in that regard were never directed particularly to the Cross-Defendants.

121. I should first address the factual basis of this issue. My practice, as is the practice of many judges in this Court, is carefully to read the pleadings and the affidavit evidence prior to the commencement of the hearing, particularly in cases, as here, where there are numerous objections to evidence, so as to more efficiently address those objections. Mr Flynn points to the fact that I had made clear on the first day of the hearing that I had reviewed the relevant affidavits, observing (V2V proceedings, T13) that “I seem to be reading a whole lot of affidavit evidence asserting the purpose of particular payments”. Similarly, I had noted in an exchange with Mr Golledge (V2V proceedings T252) relating to the position of Mr Qiu, a witness for the Cross-Claimants case, that I had “spent a lot of time with the pleadings and the affidavits”.

122. At the commencement of the hearing, the pleadings (which have since been amended) referred to the circumstances surrounding several disputed payments. The Cross-Claimants then contended (Amended Statement of Claim [23]) that a credit balance held in Green Estate’s bank account (or, more precisely, the chose in action that it reflected) was property to which it was beneficially entitled, which founded a claim that Mr Hu had wrongly appropriated those monies and that his companies had knowingly received them. The Cross-Defendants then contended that those monies were then held for them, although they did not initially identify claims for trust and agency on which they now rely. The Cross-Defendants also then pleaded that loan agreements between a Singaporean and several Hong Kong companies which documented the transactions were “not intended to give rise to a loan requiring repayment by Green Estate.” It was then at least implicit, and has now been made explicit, that they contend that the relevant loan agreements were shams, in the sense that they were not intended to have legal effect in accordance with their terms.

123. Ms Yu (Mr Hu’s wife), who was to give affidavit evidence in the Cross-Defendants’ case, had said (Yu 20.2.26 [73]), in respect of each of the disputed payments, that the relevant loan agreement “was to be entered into for the purposes of allowing funds to be transferred from Hong Kong to Australia and was not intended to give effect to a loan requiring repayment by Green Estate.” A third party, Mr Shuying Huang (to whom the parties refer as “Shuying”), who was associated with the lender companies, had said (Shuying 24.2.26 [18]) that, in order to source those funds at Ms Yu’s request, he had contacted several (unidentified) business associates, and discussed which of their companies could transfer funds and the quantum and timing of each transfer. His evidence was that, between September 2017 and April 2018, he caused 13 transfers to be effected by the lenders to two companies within the Boill Group (Shuying 24.2.26 [22]). He also referred to the execution of the loan agreements (Shuying 24.2.26 [23]) in respect of the transactions and said that (Shuying 24.2.26 [25]):

“When I caused the Transfers to occur, I did so specifically on the understanding that Boill HK and Boill International, and in turn Green Estate, would on-send these funds to an account nominated by Ms Yu or Mr Hu. In other words, I did not intend or understand those Transfers to be loans to, or as financing contributions made by any other person to, Green Estate. I would not have otherwise caused these transfers to occur …”

124. There was also a dispute in the affidavit evidence as to whether Mr Qiu, who is associated with the Boill Group and with Green Estate, had suggested transactions in this form and, possibly, as to whether these arrangements were adopted to avoid difficulties or delays which would otherwise have arisen with the Hong Kong banks that were asked to transfer the funds. It appears that, on different grounds, Mr Qiu also appears to contest that the loan agreements bind Green Estate, and I return to that matter below.

125. In these circumstances, I raised concerns on several occasions as to warnings that may need to be given to witnesses who addressed these transactions. Mr Williams refers to those occasions in submissions, and I will address them below. Mr Flynn in turn refers to the scope of s 132 of the Evidence Act, which requires that the relevant warning be given if it appears to the Court that a witness or party “may have” grounds for making an application or objection under Pt 3.10 of the Evidence Act. Mr Flynn also pointes out that s 128 of the Evidence Act applied where evidence “may tend” to prove that the witness had committed an offence or was liable to a civil penalty, and that provision expressly extended to an offence under a law of a foreign country as well as an offence under an Australian law. He points out that the circumstances in which a witness is taken to be liable to a civil penalty, as specified by cl 3 of the Dictionary of the Evidence Act, included a liability to a penalty arising under an Australian law or a law of a foreign country. Mr Flynn also refers to Sorby v Commonwealth of Australia (1993) 152 CLR 281 at 294; [1983] HCA 10, as recognising the risk that an answer by a witness may set in train a process that leads to incrimination or leads to the discovery of real evidence of an incriminating character.

126. Mr Williams first draws attention to an exchange with Mr Ng (V2V proceedings, T25–26) that:

“NG: The evidence will show that that [“collect and pay”] is an expression used within the Boill Group that is within Mr [Qiu]'s companies to describe arrangements to facilitate transfers of funds by Mr [Qiu]'s business associates, pursuant to which the Boill Group entities receive funds and then transfer them, including across borders, with a view to paying them at the direction of those business associates. So that's what that expression is used to denote.

HIS HONOUR: I see. Mr Ng I pause there that that description rather raises questions of whether there may ultimately need to be some form of reference to the Australian Money Laundering Authorities. That is a question we will come back to in due course, because that particular language rather suggested that what we have is an apparent transaction involving the Boill Group, which was in truth a transaction involving other undisclosed entities which would not be known to the Australian government.

NG: Again your Honour's right, we'll have to confront that matter in due course.

HIS HONOUR: Yes, well you should understand that I would not hesitate to refer a matter to the relevant authorities if that is the evidence that emerges in due course, again, subject to hearing the party.”

127. Mr Williams submits that there was no basis for me to express concern as to whether relevant transactions would involve money laundering at that point. Mr Flynn points out that, to the extent that I referred to issues arising from the affidavit evidence, that had occurred in the context that, as I noted above, I had advised the parties that I had reviewed the pleadings and affidavits prior to the hearing.

128. It seems to me that the fair-minded lay observer would here recognise a common practice of Judges in this Court to review pleadings and affidavits prior to a hearing in order to be prepared to rule on evidentiary objections; that I had here disclosed that I had done so; that the pleadings and affidavits to which I have referred above gave reason for concern as to that matter; and that that concern was emphasised by the fact that it was always likely, and is now common ground, that it was an essential step in the Cross-Defendants’ Defence that the loan agreements between the companies associated with Shuying and his business associates on the one hand and Green Estate on the other were shams.

129. Mr Williams also submits that a fair-minded lay observer would be concerned by my statement that I “would not hesitate” to refer the matter to the relevant authorities “if that is the evidence that emerges in due course, again, subject to hearing the party”. It seems to me that a fair-minded lay observer would there recognise that that observation was direct, and possibly unduly so, but was expressly conditional on what evidence emerged and was qualified by recognising the parties’ right to be heard as to any referral. The fair-minded lay observer would also recognise that the fair identification of that risk was preferable to catching the parties by surprise by such a referral at a later stage in the proceedings; that it was no less an issue for the Cross-Claimants than for the Cross-Defendants; and that it was not a matter that raised any risk of not deciding the matter on the merits.

130. Mr Williams also raises concern as to my later observation (V2V proceedings, T26) that this issue was “quite stark”, if an apparent payment by a Boill Group company to Australia was in truth a payment of Mr Hu’s personal funds or Mr Hu’s company’s personal funds into Australia and particularly where Mr Ng, for the Cross-Defendants, had then fairly and frankly acknowledged that that was the case. It seems to me that a fair-minded lay observer would not regard that as an observation suggestive of apprehended bias or any risk of not determining the matter on the merits, for the reasons noted above.

131. Mr Williams also points to my offer to allow Counsel an opportunity to defer reading their evidence to the afternoon, where “possibly surprising matters” had emerged in opening and “questions of self-incrimination may arise”. Again, it seems to me that a fair-minded lay observer would recognise that the recognition of those matters is not suggestive of any apprehended bias or any risk of not deciding the matter on its merits, where the relevant witness was Ms Huang, who was called by the Cross-Claimants and not a witness called by the Cross-Defendants.

132. Mr Williams also draws attention to an observation as to the risk of money laundering (V2V proceedings, T110) in the course of the cross-examination of Ms Huang. I accept that I put the risk too strongly in pointing to questions that “will bring about self-incrimination of the witnesses, so far as they will disclose serious contraventions of Australian anti-money laundering legislation”. Mr Flynn rightly points out that that observation was expressly directed to both Mr Ng and Mr Golledge and related to the position of both parties, and that my further reference to the risk of any referral was expressly qualified by the position “if evidence of such a contravention arose”. It seems to me that the fair-minded lay observer would recognise that I raised that matter in seeking Counsel’s assistance whether I should at that point give a warning under s 132 of the Evidence Act, and as to whether I could give a certificate under s 128 of the Evidence Act to Ms Huang. I also there raised a concern, which has troubled me throughout the hearing, as to the position of witnesses who voluntarily addressed relevant issues in affidavit evidence, as to which a certificate under s 128 of the Evidence Act was likely not available. It seems to me that a fair-minded lay observer would read that exchange, as was the fact, as reflecting a genuine concern as to the position of witnesses, particularly third party witnesses who may not have had independent legal advice in respect of any risks arising from their evidence or cross-examination. Mr Ng then rightly understood that question related to that concern, since he responded by advising that the particular questions that he would then ask Ms Huang would not give rise to any difficulty in that respect, and it was then common ground that any such issue could be deferred until that question later arose.

133. That question subsequently arose in the cross-examination of Ms Huang (who was, as I noted above, a witness called by the Cross-Claimants and not the Cross-Defendants), and I gave a warning under s 132 of the Evidence Act to Ms Huang and subsequently a certificate under s 128 of the Evidence Act*.* Mr Flynn rightly points out that Mr Golledge, who was appearing for the Cross-Claimants, had there observed (V2V proceedings, T114) that:

“We're now into territory, in my submission that your Honour noted maybe 30 minutes ago, that is this is going to be a question about her knowledge of processes, carrying out of processes concerning money transfers that might, on a potential view, if indeed those transfers are in breach of the Money Laundering legislation, she might by being asked to admit whether she, or that she knew of the transaction or of the document, be exposing herself to a penalty. Your Honour explained that the course that would be taken in the event that that possibility arose, I would ask that in those circumstances I'm going to have to explain to this witness what is meant by claiming the privilege, because she would have no idea.”

134. It seems to me that the fair-minded lay observer would recognise that the risk to which I had referred was one that again extended to both parties, and Mr Golledge there recognised that risk was real for the Cross-Claimants by seeking that a warning be given to Ms Huang and then seeking a certificate under s 128 of the Evidence Act for her in respect of evidence as to the relevant transactions. A fair-minded lay observer would also there recognise that I was complying with the obligations imposed upon me, under s 132 of the Evidence Act, to give the necessary warning; that I then gave the relevant certificate when objection was taken by Mr Golledge on the basis that Ms Huang was in fact exposed to a risk of self-incrimination; and this was directed, not to a witness called by the Cross-Defendants, but to a witness called by the Cross-Claimants, and conveyed no suggestion that the Cross-Defendants were more exposed than the Cross-Claimants to any risk in this regard.

135. Mr Williams also draws attention to my recognition (V2V proceedings, T204) of the risk of self-incrimination affecting third party witnesses who may not have had independent legal advice. I observed, in the course of submissions in this hearing (Application, T35), that:

“Again, I should make clear, which parties may or may not accept, but I should make clear as a matter of fairness that my concern which was then expressed was expressly directed to issues I found, at that time, quite difficult as to how to address the interests of third party witnesses who were not legally represented.”

136. Again, it seems to me that a fair-minded lay observer would recognise that, by that point, I was plainly troubled by that issue, but that was reflective of a proper concern for a risk to those witnesses, not any view that was adverse to the Cross-Defendants in respect of relevant issues.

137. It also seems to me that a fair-minded lay observer would recognise that I had not formed any view, preliminary or otherwise, that money-laundering had occurred in this case. A fair-minded lay observer would recognise that no such issue would arise on the Cross-Claimants’ case, namely that the Boill Group companies made funds transfers to Green Estate from their own resources. That fair-minded lay observer would also recognise that no such issue would arise if, as is possible, the several loan agreements under which funds were transferred were not shams, as the Cross-Defendants contend they were, and operated in accordance with their terms. A fair-minded lay observer would recognise that the position would only be more problematic if (and I have formed no view) the funds were, as the Cross-Defendants contend, transferred from Singaporean and Hong Kong companies associated with Shuying and his business associates to China under sham loan agreements to avoid difficulties that might otherwise have arisen with the Hong Kong banks’ execution (or not executing, or delaying execution) of the transactions, and then transferred to Green Estate in a manner that did not disclose the true nature of the transactions. Again, the fair-minded lay observer would recognise that I have not formed any view, preliminary or otherwise, to that effect, not least because that would have required me to make a finding that the relevant loan agreements were shams.

138. In any event, it seems to me that it would be apparent to the fair-minded lay observer that there is no logical connection between this matter and any deviation from the course of deciding the case on its merits. To the contrary, it would be apparent to the fair-minded lay observer that any perceived risk that the Cross-Defendants’ case involves transactions in the nature of money-laundering does not raise any risk that I would not reach a finding on the merits as to the nature of the transactions, even if that finding disclosed any impropriety such as money-laundering. The fair-minded lay observer would recognise that the only significance of a risk of money-laundering is, first, that it gives rise to potential collateral consequences for the parties, depending upon the outcome of the proceedings and any action by Australian or offshore regulators; and second, it give rise to a risk of exposure to self-incrimination, including for third party witnesses. The fair-minded lay observer would consider that I properly became increasingly concerned with that risk as the proceedings continued and largely addressed that issue in the passages of the transcript to which Mr Williams refers. It seems to me that a fair-minded lay observer would think that a trial judge could properly find that issue very troubling, and that my addressing it did not raise any risk that I would decide the case other than on its legal and factual merits or that, if the Cross-Defendants established the elements of their case (including that the loan agreements were shams and the agency or trust for which they contend), I would not find in their favour in respect of that case, leaving that parties to any collateral consequences that might follow.

139. Mr Williams also refers to my expressed concern (V2V proceedings, T205) as to the position of witnesses if the sham loan agreements were reflected in Green Estate’s financial records, although I then expressly observed that I did not know if that was the case. Mr Williams submits that the Cross-Defendants’ case is that the loan agreements which they contend are shams were not in fact reflected in Green Estate’s financial records, and that is a matter on which they rely to establish that those loan agreements were shams. Mr Flynn in turn submits that the risks in respect of Green Estate’s financial statements were not illusory for the witnesses, and refers, for example, to s 1307 of the Corporations Act 2001 (Cth) which deals with the falsification of books relating to a company’s affairs and the risk that faced witnesses in giving evidence in respect of the loan agreements which, the Cross-Defendants contend, do not have effect in accordance with their terms. It seems to me that a fair-minded lay observer would recognise that this matter does not raise any issue as to apprehended bias for the same reasons that my concerns as to any issue of money laundering do not do so.

140. It seems to me that the fair-minded lay observer would not find that these matters identify a factor which might lead me to resolve any question in the proceedings other than on its legal and factual merits and that there is no logical connection, or at least no reasonable logical connection, between the matters relied on and the apprehended deviation from deciding that question on its merits.

The fourth ground for the application

141. The fourth ground raised by Mr Williams is a suggestion that I had indicated that I would not resolve the issues as the parties perceived them. Mr Williams refers to my having observed that I would likely determine the matters necessary to determine the case as pleaded by the parties and may not determine other matters that were not necessary to a determination of the proceedings. The possibility could arise, for example, where Mr Cook had properly accepted that the Cross-Defendants’ allegation that certain loan transactions were “shams” was an essential step in their defence. It followed that, if it was not established that the relevant loan arrangements were shams, then some other issues might fall away. Mr Flynn responds that it is commonplace in this Court for a trial Judge to seek to identify which issues are more significant and which are less significant, in order to conduct proceedings in a manner that promotes their just, quick and cheap resolution. He also submits that a trial judge is not bound to accept one or other party’s views as to what it considers to be the key issues in the proceedings.

142. It seems to me that a fair-minded lay observer would not consider that my attempt to identify the critical issues in the proceedings gave rise to any suggestion of apprehended bias or had any logical connection with a risk that I would not determine the proceedings on the merits, where it promoted that result. It seems to me that a fair-minded lay observer would also recognise that there is no reason to think that a focus on the real issues which were necessary to determine the proceedings would be disadvantageous to one or other party, or to the Cross-Defendants in particular.

143. In an associated submission, Mr Williams submits that apprehended bias arose because I had identified a need to determine whether, as the Cross-Defendants pleaded, the loan agreements were shams. Mr Wiliams emphasises that Mr Qiu, a witness called by the Cross-Claimants, had expressed the view that the loan agreements were not binding on Green Estate, possibly because he had not authorised them, and that the monies advanced by the Boill Group should be treated as the Boill Group’s contribution to the venture. It seems to me that the fair-minded lay observer would recognise, first, that the Cross-Defendants’ position and Mr Qiu’s position were very different, because the Cross-Defendants’ position is that the loan agreements were shams and Mr Qiu’s position was that they were executed without his authority, rather than executed on the basis that they would not be legally binding in accordance with their terms. Second, the fair-minded lay observer would also recognise, as Mr Flynn points out, that Mr Qiu is a (I interpolate, significant) witness in the Cross-Claimants’ case, but his position is not necessarily the Cross-Claimants’ position. Third, the fair-minded lay observer would recognise that a trial judge would properly proceed on the basis that the status of the loan agreements is in dispute, where I had previously asked whether the Cross-Claimants accepted that they were shams and had not been told that they accepted that position. Fourth, the fair-minded lay observer would recognise that, although the Cross-Defendants and Mr Qiu may both contend, for different reasons, that the loan agreements are not binding on Green Estate, that does not conclude that question as a matter of law.

144. Mr Williams also pointed to my having expressed concern as to the adequacy of a pleading of allegations of trust and agency by the Cross-Defendants, and particularly as to whether the pleading adequately identified the material facts on which they relied. In discussion with Counsel (V2V proceedings, T217) as to the adequacy of that pleading, I had made clear that those concerns were preliminary views and “may change” or “may not”. It seems to me that a fair-minded lay observer would recognise that I should have been more gracious in that observation, but that it was no more than an indication of a preliminary view which might change as the proceedings progressed. The fair-minded lay observer would also recognise that, if I was in error in that preliminary view, that would ultimately be addressed, with the aid of closing submissions, in a judgment on the merits and did not suggest anything which might lead me to resolve any question in the proceedings other than on its legal and factual merits. It seems me that the fair-minded lay observer would also there see no logical connection between a preliminary view as to the adequacy of an aspect of the pleading and any risk of deviation from the course of deciding the case on its merits.

145. It seems to me that the fair-minded lay observer would not find that these matters identify a factor which might lead me to resolve any question in the proceedings other than on its legal and factual merits and that there is no logical connection, or at least no reasonable logical connection, between the matters relied on and the apprehended deviation from deciding that question on its merits.

The fifth ground for the application

146. Fifth, Mr Williams submits that I imposed impermissible restrictions on Mr Cook’s cross-examination of Mr Qiu, on my own motion, and that a fair-minded observer would treat this as indicating a risk of deviation on my part from deciding the case on its merits.

147. It seems to me that a fair-minded lay observer, properly informed as to the nature of the proceedings, would recognise that there were occasions on which I raised concerns as to questions put by Messrs Ng or Cook, where they were complex, apparently could not be understood by the interpreter or the witness, ignored the legal distinction between Mr Qiu and the companies with which he is associated, or were based on assumptions and it was not apparent how those assumptions were proved. That observer would also recognise that that was to the Cross-Defendants’ advantage, not the reverse, where I could have given little weight to answers to questions that were confusing, not understood by the interpreter or the witness, ignored the legal distinction between Mr Qiu and the companies with which he is associated, or were based on assumptions that were not proved or provable; and would recognise that there is every reason that I would take a similar course if questions asked by Counsel for the Cross-Claimants raise similar concerns. No complaint was made as to these matters generally.

148. Mr Williams refers to my raising (V2V proceedings, T296) an issue as to the treatment of evidence in reply in cross-examination, where there were extensive objections to the evidence in reply which had not been read. Mr Williams submits that my approach to that issue was wrong and I acknowledge the possibility that, not for the first or last time, I may have been in error in my approach. It seems to me that a fair-minded lay observer would recognise that I was seeking the assistance of Counsel as to how to address the relevant issue; that course was not adverse to the Cross-Defendants; the issue then disappeared when it became apparent that Mr Cook was not seeking to cross-examine as to matters that were subject to objection; and, if I was wrong, that indicated my fallibility rather than any position that was potentially adverse to the Cross-Defendants.

149. Mr Williams also complains as to the circumstances in which I raised a concern (V2V proceedings, T334) as to whether an issue raised in Mr Qiu’s cross-examination should be excluded under s 135 of the Evidence Act. Mr Flynn in turn submits that a fair-minded lay observer would recognise that (as I had then said) I raised that concern where Mr Cook was seeking to cross-examine Mr Qiu as to previous transactions which were not in issue in the proceedings; it was already apparent that Mr Qiu contended that those previous transactions were or may be the result of improper conduct of two executives within the Boill Group; and any significance of that cross-examination would depend on a collateral inquiry as to whether Mr Qiu’s concerns were justified or unjustified, which would have to be undertaken without any identification in the pleadings of the relevant facts of the previous transactions or the matters which might give rise to any difficulty with them, and where there was no reason to think that matter had been addressed in the evidence led by the parties, where those transactions were not in issue in the proceedings. It seems to me that a fair-minded lay observer would recognise that the suggested cross-examination did give rise to those difficulties; that observer may or may not think that I was in error in that regard, but any such error did not raise any element of apprehended bias adverse to the Cross-Defendants.

150. Mr Williams also points to an exchange with Mr Cook as to whether documents that would be tendered were business records, and what would be required to establish that matter. It seems to me that a fair-minded lay observer might well think that I should learn, likely much too late, not to think out loud, but that exploration of an issue which would arise at a later point again did not raise any matter that was potentially adverse to the Cross-Defendants or have any connection with a risk of not deciding the matter on its merits. A fair-minded lay observer would also recognise, at that point, the same issue could equally have arisen, and may well still arise, in Mr Golledge’s cross-examination of witnesses called by the Cross-Defendants, and whether it is to the advantage or disadvantage of either party is wholly speculative.

151. Mr Williams also raises a concern, in respect of a concern I had raised whether it could properly be put to Mr Qiu that he “said” something in his evidence, where the evidence in which he had sought to make that statement had been rejected on the Cross-Defendants’ objection (V2V proceedings, T385). Mr Flynn points out that the fair-minded lay observer would recognise that I had rejected the question in the particular form in which it was asked, which attributed to Mr Qiu a statement that he had not been permitted to make, rather than prevented cross-examination by Mr Cook as to the relevant subject matter. It seems to me that the fair-minded lay observer would probably think, as I would now think with hindsight, that issue was technical and that I should not have raised it, but would not see any possible connection between that issue and any risk of my not deciding the matter on its merits where there is no reason to think that I would not have made the same mistake in dealing with the Cross-Claimants’ cross-examination of witnesses called by the Cross-Defendants.

152. It seems me that a fair-minded lay observer would not consider that these rulings identified any factor which might lead me to resolve any question in the proceedings other than on its legal and factual merits. First, it seems to me that the fair-minded lay observer would have regard to the circumstances of each ruling. Second, it seems to me that such an observer would recognise that Judges have become more activist in respect of the control of proceedings in recent years, particularly in cases where, as here, there have been substantial delays in the conduct of the proceedings. Third, it seems to me that such an observer would recognise that, even if those rulings were erroneous, they do not suggest any risk of bias against the Cross-Defendants, but only that, sadly, I am not immune from error. Fourth, a fair-minded lay observer would recognise that there is no reason to think that I would not make similar rulings, rightly or wrongly, in dealing with the cross-examination of witnesses called by the Cross-Defendants. It seems to me that the fair-minded lay observer would therefore not find that these matters identify a factor which might lead me to resolve any question in the proceedings other than on its legal and factual merits and that there is no logical connection, or at least no reasonable logical connection, between the matters relied on and the apprehended deviation from deciding that question on its merits.

Determination

153. As I noted above, I have concluded that I should disqualify myself for apprehended bias arising because a fair-minded lay observer would be concerned that there now exists a real risk that the combined effect of my errors on the afternoon of 18 August 2026, the fact that I have now been taken to the transcript of the appeal, the Appeal Judgment and the submissions made in this application create a real risk that would have the result that I would now hesitate to rule adversely to the Cross-Defendants on any matter, lest it be again contended that I might be biased against them.

154. If I had not reached that conclusion, I would in any event have disqualified myself on pragmatic grounds, and would readily have done so where another judge, unaffected by any of these issues, is available to recommence the proceeding next week, avoiding any long delay in the determination of the proceedings, although I recognise that costs will inevitably be wasted. It is well-established that, in a case of “real doubt”, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that would result if an appellate court were to take a different view on the matter of disqualification: Ebner at [20]; QYFM at [97] (Kiefel CJ and Gageler J), [129] (Edelman J), [279] (Jagot J). Here, the issues addressed in the Appeal Judgment have given rise to difficulties; the Cross-Defendants have advanced several alternative bases for a claim that I may not properly continue to hear the matter; and the observations in the Appeal Judgment now make it very likely or inevitable that any judgment I delivered on the merits that was adverse to the Cross-Defendants would ultimately be challenged with a claim for apprehended bias, in a substantive appeal. At the conclusion of the hearing of this application, Mr Williams pointed to the risk that my refusal to disqualify myself may be met by a further application for leave to appeal, and that will impose further costs and delays upon the parties in proceedings that have already been costly and long-delayed. Mr Williams also pointed to the likelihood of an appeal by the Cross-Defendants from any adverse final judgment on the grounds put in this application.

155. I recognise the real detriment if the proceedings must now start again before another Judge, although that is mitigated to some extent by the fact that the incoming Corporations List Judge, Nixon J, is now available to hear resumed proceedings commencing next Tuesday, 1 September, for 12 days. The wasted costs that will result from my now disqualifying myself seem to me to be less than the risk to the parties of hearing the balance of these proceedings, likely over another 8 days or more, while the parties remain exposed to a risk that a judgment on the merits may be set aside by an appellate Court, if it takes a different view than that which I have taken as to the existence of apprehended bias. I have not neglected the fact that this result may be inconsistent with the Court of Appeal having remitted the matter to me in the Appeal Judgment, may have the practical result that a party has had the opportunity to decide at least that it does not want a particular judge to determine these proceedings.

156. I will make the same order as to costs in respect of this application as the Court of Appeal made in the Appeal Judgment, that the costs of this application be costs in the cause.

Orders

157. I therefore disqualify myself from hearing the balance of the proceedings and make the following orders:

158. The matter be listed before Nixon J at 10am on 28 August 2026 for the allocation of new hearing dates in the proceedings.

159. The costs of the application be costs in the cause.

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