Ren & Ors v Sinicorp Pty Ltd & Ors [2021] VSC 728

1 By summons dated 7 June 2021 ('Summons') the First Defendant ('Sinicorp') seeks orders that the claims by the First Plaintiff, Chin Lee Ren ('Ren') and Second Plaintiff, Yi Pan ('Pan') against Sinicorp, and their defence to the counterclaim by Sinicorp, be dismissed pursuant to s 56(2)(j) of the Civil Procedure Act 2010 (Vic) ('CPA').

2 Section 56(2)(j) of the CPA provides for a power to dismiss a claim, defence or any part thereof of a party who is responsible for a failure to comply with discovery obligations or orders or directions of the Court in relation to discovery, or who is responsible for conduct intended to delay, frustrate or avoid discovery of discoverable documents.

3 This application does not concern the Third Plaintiff who, I understand, is now deceased. Nor does it concern the Fourth Plaintiff whom Sinicorp has not included in the application. For convenience, Ren and Pan will together be referred to as the Plaintiffs in these reasons.

(a) the Plaintiffs have failed to comply with their discovery obligations and with orders made by the Court for discovery;

(b) the Plaintiffs have engaged in conduct intended to delay, frustrate or avoid the discovery of discoverable documents;

(c) in doing so, the Plaintiffs have contravened their overarching obligations under the CPA and have engaged in conduct contemplated by s 56(1) of that Act;

(d) it is appropriate that the Plaintiffs' claims against Sinicorp and their defences to Sinicorp's counterclaim in this proceeding should be struck out; and

(e) no alternative remedy by way of a lesser but equally efficient sanction is suitable.

5 In support of the Summons, Sinicorp relies upon the affidavits of its solicitor, Chuen Lim:

(a) sworn on 5 June 2021 ('Lim 5 June Affidavit') and the exhibits thereto; and

(b) sworn on 15 June 2021 ('Lim 15 June Affidavit') and the exhibits thereto.

6 The Plaintiffs rely on the following affidavits in response to the Summons:

(a) Affidavit of Jingli Ren affirmed on 18 June 2021 ('Ren June Affidavit'); and

(b) Affidavit of Yi Pan affirmed on 18 June 2021 ('Pan June Affidavit').

7 Ren has filed 6 affidavits of documents in the proceeding, being those affirmed on:

(a) 20 November 2014 ('Ren's First Affidavit of Documents');

(b) 4 March 2015 ('Ren's Second Affidavit of Documents');

(c) 23 April 2015 ('Ren's Third Affidavit of Documents');

(d) 14 December 2015 ('Ren's Fourth Affidavit of Documents');

(e) 12 March 2020 ('Ren's Fifth Affidavit of Documents'); and

(f) 5 February 2021 ('Ren's Sixth Affidavit of Documents').

8 Pan has filed three affidavits of documents in the proceeding, being those affirmed on:

(a) 18 November 2014 ('Pan's First Affidavit of Documents');

(b) 4 March 2015 ('Pan's Second Affidavit of Documents'); and

(c) 11 February 2021 ('Pan's Third Affidavit of Documents').

9 The transcripts of Ren and Pan's cross-examinations on these affidavits of documents pursuant to s 57 of the CPA are exhibited to the Lim 5 June Affidavit.

10 The Fourth Plaintiff filed an Affidavit on 11 May 2021 which Sinicorp refers to in relation to the Summons. Further, the transcript of the cross-examination of the Fourth Plaintiff on his affidavits of documents is also referred to by Sinicorp, and is exhibited to the Lim 15 June Affidavit.

11 Bundles of documents which had been discovered in the proceeding were provided to the Court and to the Plaintiffs for the purpose of cross-examination. Where those documents were referred to in the cross-examination, I have had regard to them as necessary.

12 Sinicorp filed a written outline of submissions on the Summons on 16 July 2021.

13 The Plaintiffs filed a written outline of submissions on 19 July 2021 in respect of the Summons ('Plaintiffs' First Outline') and provided a further written outline of submissions by email on Monday 9 August 2021, which have not been filed ('Plaintiffs' Second Outline').

14 I have had regard to all of the above material in considering the Summons.

15 The Summons arises in the context of a protracted dispute between the parties as to the adequacy and conduct of the Plaintiffs' discovery. It is helpful to first set out the pleadings of the parties which form the context for the parties' discovery, and then it is necessary to set out the history of the discovery dispute in some detail.

16 Sinicorp is the developer of a 20-apartment development at 21 Cambridge Street, Box Hill, Victoria, 3128 ('Development'). In the relevant period there were two directors of Sinicorp:

(a) Huiyu Tian ('Tian') was appointed director on 2 May 2007 with an 80% shareholding in Sinicorp. Tian was and remains based in China;

(b) the Second Defendant, Aili Liu ('Liu'), was appointed director on 2 May 2007 with a 20% shareholding, which Sinicorp says is held on a bare trust for Tian. Liu was the director normally resident in Australia, and is the mother of Pan.

17 Liu was removed as a director on 2 April 2012 following proceedings brought by Sinicorp for breach of fiduciary duties and contraventions of the Corporations Act 2001 ('Corporations Act').

18 The Plaintiffs commenced these proceedings by originating motion on 9 May 2014. The proceeding was ordered to proceed as if commenced by writ pursuant to r 4.07(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') by orders of the Honourable Associate Justice Derham dated 4 August 2014 ('2014 Derham Orders'). There have since been a number of iterations of the parties' pleadings. The current pleadings are, relevantly:

(a) the Plaintiffs' third amended statement of claim dated 2 May 2018 ('Statement of Claim');

(b) Sinicorp's third further amended defence and counterclaim dated 18 April 2019 ('Defence and Counterclaim'); and

(c) the Plaintiffs' further amended reply and defence to the third amended defence and counterclaim dated 1 July 2019 ('Reply and Defence to Counterclaim').

19 The Plaintiffs allege that they entered into contracts of sale with Sinicorp for apartments in the Development ('Contracts of Sale'), and that they are entitled to specific performance and declarations in relation to the Contracts of Sale including that Sinicorp is estopped from denying the enforceability of the Contracts of Sale. The Plaintiffs also seek damages for the loss of use of money comprising alleged payments made pursuant to the Contracts of Sale. The Plaintiffs also seek damages in the amount of the alleged payments.

20 Ren alleges that she entered into Contracts of Sale for Apartments 102 to 108 inclusive in the Development in or about August 2010 following representations that Liu was authorised to sell the apartments. The Contracts of Sale were dated 31 October 2008, and provided for payments of purchase prices between $348,900 and $446,900 to James Yang, the Third Party in the Proceeding ('Yang'), and/or to LWY Constructions Management Pty Ltd ('LWY'), who were responsible for construction of the Development in August 2010. Ren alleges that a number of payments were made to Yang's Chinese bank account between September 2010 and June 2011, which Ren says amounts to a combined sum of approximately $244,503.39 ('Ren Alleged Apartment Payments').

21 Ren alleges that, at the request of Liu, she agreed to nominate Junxin Xia, the Third Plaintiff (now deceased), as purchaser of Apartment 105 in or about July 2011; and that she agreed to nominate Hai Shan Feng as purchaser of Apartments 102, 103 and 106 in or about October 2011 ('Nomination Agreements').[1] Ren alleges that the Nomination Agreements permitted her to 'transfer' the deposits and part payments for those apartments to the purchase of the remaining apartments for which she had executed the Contracts of Sale, without compensation from Sinicorp. The nominees under the Nomination Agreements were to pay the deposit and balance of the purchase price of their respective apartments.

22 Ren further alleges that in March 2009 she was induced by Liu and Sinicorp's construction manager for the Development at the time, Chester Cheng ('Cheng'), to loan a sum of RMB560,000 (approximately AUD119,811) to or for the benefit of Sinicorp ('Alleged 2009 Loan Payment'). The Alleged 2009 Loan Payment is said to have been intended to be applied to Cheng's medical expenses as Sinicorp owed Cheng money for the constructions works at the Development. The Alleged 2009 Loan Payment is also said to have been made to Liu in cash on terms that Sinicorp would repay the whole of the loan by October 2010.

23 Ren alleges that in December 2011 she executed a further Contract of Sale with Sinicorp, represented by Liu, for Apartment 203. Ren alleges that it was agreed that the price of Apartment 203 would be $350,000 and that the Alleged 2009 Loan Payment, which Liu represented could not be repaid by Sinicorp, would instead be applied as the deposit to Apartment 203 by way of a set-off.

24 Ren alleges that in August 2012 Sinicorp did not settle the sale of Apartments 104, 107, 108 and 203, being those apartments not subject to Nomination Agreements, because the mortgagee had not been paid the full purchase price and therefore would not discharge its mortgage. Ren therefore alleges that she has lost the benefit of the money comprising the Ren Alleged Apartment Payments and Alleged 2009 Loan Payment.

25 Pan similarly alleges that she entered into a Contract of Sale for Apartment 101 with Sinicorp, which Liu purported to represent. The Contract of Sale was alleged to be dated 31 October 2008 and on terms that the purchase price of $379,900 be paid to Yang and/or LWY. Pan alleges that a number of payments were made between December 2009 and January 2010 to a Westpac Banking Corporation ('Westpac') bank account in Liu's name, which payment sums were transferred to a Westpac bank account in LWY's name; and that Pan made further payments, or caused further payments to be made, between March 2010 and July 2010 into an Industrial and Commercial Bank of China ('ICBC') bank account in Yang's name and a Westpac bank account in LWY's name. In total, Pan alleges that she paid $356,635.34 ('Pan Alleged Apartment Payments'), and that the balance of the purchase price (a sum of $23,264.66) was paid by Liu by way of a set-off between Liu and Sinicorp in relation to moneys paid by Liu to LWY. Pan alleges that Sinicorp has refused to settle on Apartment 101 and that she has lost the benefit of the money comprising the Pan Alleged Apartment Payments.

26 Sinicorp denies that Liu was authorised to enter into the Contracts of Sale or to procure the Alleged 2009 Loan Payments on behalf of Sinicorp, and says that the Plaintiffs knew or ought to have known that Liu was not so authorised. Further, Sinicorp denies that any of the money comprising the Alleged 2009 Loan Payments, Ren Alleged Apartment Payments and Pan Alleged Apartment Payments was paid to it, and says that the Contracts of Sale provided for the purchase of the apartments for no consideration. Pan is alleged not to have had the financial resources or intention to make any of the Pan Alleged Apartment Payments. Sinicorp accordingly seeks declarations that the Contracts of Sale are unenforceable.

27 Sinicorp says that any payments made by the Plaintiffs or Liu to Yang or LWY were payments of funds belonging to Liu comprising part payment of invoices rendered for Yang's and LWY's work on the Development, and are in no way referable to payments for apartments in the Development.

28 Further, by its counterclaim Sinicorp alleges that from 2010 until 23 December 2011 the Plaintiffs acted in concert with Liu to cause injury to Sinicorp by entering into Contracts of Sale for apartments owned by Sinicorp and below market value to the Plaintiffs, and backdating the Contracts of Sale ('Alleged Conspiracy').

29 During this period Sinicorp alleges that Ren purported to act as an officer or agent of Sinicorp in furtherance of the Alleged Conspiracy, and that Ren breached her duties as a shadow director of Sinicorp when she became involved in the management of Sinicorp's assets and obtained financial advantage as a result. There are particular allegations of conduct in this respect. Armed with the purported authority to act at the behest of Sinicorp, Ren is alleged to have:

(a) represented Sinicorp at the first meeting of the Owners Corporation of the Development being Owners Corporation Plan PS621860J ('Owners Corporation') on 8 August 2011;

(b) provided instructions to Sinicorp's legal representatives, John V Hayes & Co ('Hayes') concerning the sale of Apartments between December 2011 and January 2012;

(c) sold apartments in the Development for less than a fair market value and without proper accounting to Sinicorp;

(d) otherwise collected money from purchasers of Apartments 102, 103, 106, 202, 207 and 208 in the sum of $136,700;

(e) obtained rental income of at least $26,668 from tenants in Apartment 104, which Liu is alleged to have leased on the basis that she purported to be the registered proprietor of Apartment 104;

(f) obtained finance in the form of a loan in the sum of $15,000 from Anthony Zita, a solicitor at Hayes, without accounting to Sinicorp ('Zita Loan'); and

(g) obtained finance in the form of a loan in the sum of $99,940 from Trustworthy Nominees Pty Ltd without accounting to Sinicorp ('Trustworthy Loan').

30 As a consequence of the above, Sinicorp alleges that the Plaintiffs have committed the tort of conspiracy, and that Ren breached the Corporations Act.

31 Generally speaking, the Plaintiffs deny the allegations made by counterclaim against them and contend that no factual basis is pleaded in support of them. However, the Plaintiffs make several admissions, including, most relevantly, that Ren admits to the alleged conduct set out at paragraphs 29(a) to 29(c) and 29(e) to 29(g) above, but says that she did so on behalf of, at the direction of, and for the assistance of Liu only.

32 The 2014 Derham Orders provided for a timetable for pleadings, to be followed by affidavits of documents by 31 October 2014 and complete inspection of documents by 12 November 2014.

33 Sinicorp filed an affidavit of documents sworn 1 November 2014 by Baoer Shi on 5 November 2014.

34 By letter dated 20 November 2014, Sinicorp served a notice of default of discovery on the Plaintiffs pursuant to r 29.12.1 of the Rules requiring the Plaintiffs to make full discovery by 28 November 2014.

35 The Plaintiffs' respective First Affidavits of Documents were filed on 28 November 2014.

36 By summons dated 10 December 2014, Sinicorp sought orders inter alia for further discovery and for the Plaintiffs' claims to be struck out ('2014 Summons').

37 On 12 February 2015, on return of the 2014 Summons, the Honourable Associate Justice Mukhtar recorded the following in the 'Other Matters' section of his Honour's orders ('2015 Mukhtar Orders'):

1. Generally speaking, there was justification in the defendant's apprehension that, having regard to the nature of the case, the plaintiffs' exiguous affidavits of documents seemed to be limited to the contracts of sale on which they have sued the defendants for specific performance, but not much else. That is, they have discovered documents that only support the plaintiffs' case, but not documents that might harm it.
2. For multiple contracts of sale, it is reasonable to suppose that in the ordinary course of a sale of land, many other documents ought to have come into existence if the contracts were real. That is especially so because the defendant pleads a case that the contracts were not what they seemed to be. That suggests they were illusory. There are allegations the contracts lacked consideration; were void for uncertainty; deposits paid were in truth not for the purchase of land but were payments made to the company constructing the apartment block; and that the dealings involved some wrongful conduct by a previous director of the defendant. Counsel suggests there could be allegations of fraud once the facts are investigated, aided by the process of discovery.

1. There is enough to see that there is a lot more to this case than an ordinary sale of land. The problem is that the defence and counterclaim suffers from alleging conclusions rather than alleging the material facts. The Court has now encouraged the defendant to re-visit the defence and consider making substantial amendments to state the material facts (as principal facts) by which it seeks to impeach the legal validity or reality of the contracts of sale. The defendant ought positively plead the facts of what it says really happened in these dealings or what was behind them. That is the only way there can be engagement on the pleadings to enable the matter to proceed to trial.

1. The Court's concern is to not allow the case to be yet another example of a case involving protracted discovery fights that add greatly to delay and expense, and inattention to obligations under the Civil Procedure Act. To advance the case, these orders are the result of the Court for itself having to intervene and judge by the nature of the case the sort of documents that ought be discovered that arise from a/legations in the statement of claim or might have forensic utility. To that end, the Court has taken to approach of erring on the side of disclosure to try and advance the case.

38 Following these remarks, his Honour made detailed orders in respect of discovery by each Plaintiff pursuant to r 29.08(2) of the Rules, requiring each of them to file and serve a second affidavit of documents stating whether any documents falling within specified categories of documents are, or have been, in their possession by 4 March 2015. The categories of documents were generally defined with reference to the pleadings as they stood at the time.

39 The categories of documents in the 2015 Mukhtar Orders in respect of Ren were:

(a) any bank statement or other record showing the debiting of funds by which she procured the moneys for the cash payment which she allegedly made in paragraph 18 of the statement of claim;

(b) any correspondence or documents leading up to the making of the -

1. contracts of sale alleged in paragraphs 19 and 33 of the statement of claim;

2. nomination for apartment 104 alleged in paragraph 22;

3. nomination for apartment 105 alleged in paragraph 25;

4. nomination for apartments 102, 103 and 106 alleged in paragraph 28; and

5. rescission of the nomination agreement for apartment 104 alleged in paragraph 30 -

and, without limiting the generality of that description, any correspondence solicitors, conveyancers, estate agents or banks concerning the sale, purchase, nomination, rescission of the contract of sale of each of the apartments referred to in those paragraphs of the statement of claim;

(c) any documents concerning the necessity to insert or use the date of 31/10/2008 in the Contracts of Sale and the Bank's knowledge of that date, and the inability to change it, as alleged in the particulars in paragraph (d) of paragraph 19 of the statement of claim;

(d) any documents concerning the first plaintiff's involvement, if any, in the sale of any units located at 21 Cambridge Street, Box Hill and her receipt, handling or involvement in the application of moneys received from purchasers relating to those sales; and

(e) any bank statement evidencing receipt of $99,940 as alleged in paragraph 78 of the counterclaim.

40 The categories of documents in the 2015 Mukhtar Orders in respect of Pan were:

(a) any bank statement or other record showing the debiting of funds by which she procured the moneys for the payment which she allegedly made in paragraph 40 of the statement of claim;

(b) any correspondence or documents leading up to and the making or signing of the contract of sale alleged in paragraph 38 of the statement of claim and, without limiting the generality of that class of documents, any correspondence with solicitors, conveyancers, estate agents or banks concerning the sale of apartment 101 referred to in paragraphs 38 of the statement of claim; and

(c) any document concerning any party relating to or affected by any of the contracts of sale concerning the date stated or to be stated or to remain stated in any of the contracts of sale as alleged in particulars (d) of paragraph 38 of the statement of claim.

41 On 4 March 2015, the Plaintiffs filed their respective Second Affidavits of Documents.

42 On 12 March 2015, on return of a summons issued by the Plaintiffs on 16 January 2015 seeking further discovery by Sinicorp, Mukhtar AsJ dispensed with the need for Sinicorp to file a summons to enforce the 2015 Mukhtar orders, and (by paragraph 6 of those orders) adjourned Sinicorp's 'application for compliance with the discovery orders'. Mukhtar AsJ also made orders that Sinicorp file and serve a further affidavit of documents in respect of specific categories of documents pursuant to r 29.07(1) of the Rules.

43 Ren's Third Affidavit of Documents was filed on 1 May 2015.

44 On 23 November 2015, the Honourable Associate Justice Lansdowne ordered that any further affidavit of documents from any party be filed and served by 15 December 2015, and directed that a request to relist the 2014 Summons or the Plaintiffs' summons dated 16 January 2015 may be made to Mukhtar AsJ.

45 Ren's Fourth Affidavit of Documents was filed on 14 December 2015.

46 On 23 March 2016, on the further return of the 2014 Summons, Mukhtar AsJ made the following orders ('2016 Mukhtar Orders'):

1. Paragraph 6 of the Court's order made 12 March 2015 is discharged.

2. The defendant's summons filed 10 December 2014 by which it sought further discovery and on which the Court ordered further discovery by 12 February 2015 is dismissed (as having been dealt with).

3. The defendant shall by 7 April 2016 give the plaintiff a list which states with precision the documents which it contends it has reasonable grounds to believe could exist and which ought to have been discovered.

4. The plaintiff shall within 14 days of receipt of that list give a response on each document as sought and shall, in accordance with the obligation in s. 22 of the Civil Procedure Act to use reasonable endeavours to resolve the dispute by agreement, give any explanation concerning the document as sought with a view to avoiding the necessity of a judicial determination of the issue.

5. If the parties cannot resolve the remaining discovery dispute, any application for further or particular discovery, or if necessary, an application under s. 57 of the Civil Procedure Act for oral examination shall be made by summons to be filed by 9 May 2016, but not before consulting with the Associate to the Hon. Associate Justice Mukhtar about an available return date.

47 Pursuant to paragraph 3 of the 2016 Mukhtar Orders, on 7 April 2016 Sinicorp served a letter on the Plaintiffs' solicitor enclosing a list of documents which Sinicorp contended it had reasonable grounds to believe could exist and which ought to have been discovered.[2] The Plaintiffs' solicitor responded on 22 April 2016.

48 On 10 May 2016, Sinicorp issued a further summons ('2016 Summons') seeking oral examination of Ren in relation to an affidavit of document management pursuant to s 55C(1) of the CPA, in respect of matters set out in Schedule 1 of the 2016 Summons.

49 The 2016 Summons also sought an order that Pan make further discovery pursuant to r 29.08 of the Rules in respect of matters set out in Schedule 3 of the 2016 Summons. While Schedule 3 refers to the Third Plaintiff throughout, it is tolerably clear that Pan was intended to respond to Schedule 2. The 2016 Summons sought orders that Pan's claims be dismissed if further discovery was not made within 14 days.

50 On 31 January 2017, the Court was informed that the Third and Fourth Ren Affidavits of Documents had not been served on Sinicorp. Mukhtar AsJ made orders that they be served along with a copy of the documents discovered. Further, the 2016 Summons was amended to encompass a request for cross-examination of the Plaintiffs on their affidavits of documents pursuant to s 57 of the CPA ('Cross-Examination Application'), and was fixed for hearing on 6 April 2017.

51 The 2016 Summons was again adjourned on 6 April 2017, and again on 28 June 2017, due to circumstances surrounding the proceeding which his Honour considered made it 'unavoidable to put [the] discovery controversies to one side'.[3] In particular, the Plaintiffs applied to join Liu as Second Defendant and to plead an alternative case for breach of warranty of authority against her. Mukhtar AsJ recorded the following in the 'Other Matters' section of his Honour's order of 28 June 2017:

1. [Liu's] joinder, depending on her conduct of the case, may assist in ascertaining the facts of the many dealings which so far are unclear, and undocumented, and which has spawned the discovery fights.

1. Pleadings must now be re-set. From there discovery obligations may also be re-set. The Court has reminded the parties of their obligations under the Civil Procedure Act. It appears it is a case where the nature of the defence, based as it is on fraud, means that pre-trial investigation of facts is going to be necessary in order to avoid problems and disorder at trial.

52 Until the resolution of disputes which arose over pleadings, regarding which Mukhtar AsJ repeated his concerns to the parties over the slow progress of the proceeding and the 'convoluted, unbusinesslike and, it seems, undocumented' nature of the facts of the matter, the 2016 Summons was held in abeyance. It was re-enlivened on 21 June 2018 and listed for hearing on 16 August 2018, which hearing was then adjourned by consent to 25 September 2018 and again to 12 November 2018.

53 On 12 November 2018, on return of the 2016 Summons, Mukhtar AsJ ordered, despite the additional affidavits of documents filed by the Plaintiffs, that Sinicorp give to the Plaintiffs a further list of the type or class of documents which it still contended it had reason to suppose would exist; and which list would identify the allegation in the pleadings making the document relevant or otherwise explain the relevance of the document ('2018 Sinicorp List'). In response to the 2018 Sinicorp List, the Plaintiffs were to:

(a) state whether the document has already been discovered;

(b) object to the relevance of the document, if necessary, with any explanatory remark;

(c) acknowledge that the document for which discovery is sought is something for which an affidavit under r 29.08 of the Rules ought be provided; or

(d) state that the document does not exist.

54 On 14 December 2018 the timetable for the 2018 Sinicorp List and the Plaintiffs' response was extended and the 2016 Summons adjourned.

55 On 26 February 2019, on the further return of the 2016 Summons, Mukhtar AsJ made orders by consent that the Plaintiffs file and serve further affidavits 'stating whether any document is or has been in [their] possession' in the categories stated in Schedule 1 (in respect of Ren) and Schedule 2 (in respect of Pan) by 16 April 2019 ('2019 Mukhtar Orders').

56 The 2019 Mukhtar Orders superseded the 2015 Mukhtar Orders in certain respects. However, it remains necessary to occasionally differentiate between the Plaintiffs' discovery in response to the 2015 Mukhtar Orders, and their response to both sets of orders. Together, the 2015 Mukhtar Orders and 2019 Mukhtar Orders will be referred to as the 'Mukhtar Orders'.

57 Schedule 1 to the 2019 Mukhtar Orders is identical in form to Schedule 1 to the 2016 Summons, and picks up categories of documents in the 2015 Mukhtar Orders. Schedule 1 provides as follows:[4]

1. Any bank statement or other record showing the debiting of funds by which the First Plaintiff procured the moneys for the cash payment which she allegedly made in paragraph 18 of the amended statement of claim.
2. All bank statements and other records of the First Plaintiff in respect of her bank accounts in Australia and China for the period January 2008 to December 2012.

1. Full records and details of all monies received by the First Plaintiff relating to the sale, nomination, cancellation and settlement relating to the apartments at 21 Cambridge Street, Box Hill or of monies belonging or due to the defendant.

1. All documents including nominations, statutory declarations, duties forms, transfer of land and other documents relating to the sale, nomination, cancellation and settlement relating to the purchase, sale or transfer of apartments at 21 Cambridge Street, Box Hill by the First Plaintiff or her nominee.
2. Records and details of all monies received by the First Plaintiff from Hai Shan Feng & Jiann Gwo Ni or on their behalf for the period January 2008 to December 2012 in respect of the purchase, sale or transfer of the apartments located at 21 Cambridge Street, Box Hill.
3. Any correspondence or documents leading up to the making of the -
   1. Contracts of sale alleged in paragraphs 19 and 33 of the amended statement of claim;
   2. Nomination for apartment 104 as alleged in paragraph 22;
   3. Nomination for apartment 105 as alleged in paragraph 25;
   4. Nomination for apartments 102, 103 and 106 alleged in paragraph 28; and
   5. Rescission of nomination agreement for apartment 104 as alleged in paragraph 30

and without limiting the generality of that description, any correspondence with solicitors, conveyancers, estate agents or banks concerning the sale, purchase, nomination, statutory declarations, duties forms, transfer of land and rescission of the contract of sale of each of the apartments referred to in those paragraphs of the statement of claim.

(g) Any documents relating to or otherwise concerning the necessity to insert the date of 31/10/2008 in the contracts of sale and the Bank's knowledge of that date, and the inability to change it, as alleged in the particulars in particulars (d) of paragraph 19 of the amended statement of claim.

(h) Any documents concerning the First Plaintiff's involvement in the sale of any of the units at 21 Cambridge Street, Box Hill and her receipt, handling or involvement in the application of moneys received from purchasers relating to those sales.

(i) Any bank statement or other record showing the debiting of funds by which the First Plaintiff procured the moneys for the cash payment which she allegedly made in paragraph 3E of the amended reply and amended defence to counterclaim.

(j) Copies of tenancy agreements, correspondence, receipts or acknowledgments relating to the lease or licence of any of the apartments at 21 Cambridge Street, Box Hill.

(k) Full records relating to, including but not limited to contracts, agreements, deeds, financial records, bank statements, statements of accounts, records, banking slips, cheques, transfers of funds, the receipt by the First Plaintiff to John V. Hayes & Co. of $69,990 on 9 December 2011 and $29,990 on 16 December 2011.

(l) Full records relating to, including but not limited to contracts, agreements, deeds, memoranda, the loan of $15,000 from Mr Zita to Aili Liu ("Liu") purportedly received by the First Plaintiff on behalf of Liu as alleged in paragraph 3F of the amended reply and amended defence to counterclaim.

(m) Copies of all email and other correspondence or communications between the First Plaintiff and John Hayes & Co relating to the sale or otherwise of the apartments at 21 Cambridge Street, Box Hill.

(n) Full details and records of instructions by the First Plaintiff to John Hayes & Co relating to the sale, settlement, payment of monies and documentation of the apartments at 21 Cambridge Street, Box Hill.

(o) The First Plaintiff's Tax returns and tax assessment notices for the years 2008 to December 2012.

(p) The First Plaintiff's Tax returns and tax assessment notices for the years 2010 to 2014 in China.

58 Schedule 2 to the 2019 Mukhtar Orders is a copy of Schedule 3 to the 2016 Summons, which as noted at paragraph 49 above was clearly intended for the attention of the Third Plaintiff. As also noted at paragraph 49 there was a Schedule 2 to the 2016 Summons which referred to Pan, albeit this schedule was not attached to the 2019 Mukhtar Orders.

59 Under the 2019 Mukhtar Orders, Sinicorp was required to advise any of the Plaintiffs of any concerns about their discovery by 30 April 2019, and was granted liberty to apply to relist the 2016 Summons by 10 May 2019.

60 At the directions hearing on 19 September 2019, Mukhtar AsJ recorded that Sinicorp maintained that the Plaintiffs' discovery was inadequate, and ordered that the 2016 Summons be again re-enlivened and heard by the Court as a special fixture.

61 On 25 February 2020, the date for the Plaintiffs' compliance with the 2019 Mukhtar Orders was extended to 10 March 2020, and the Cross-Examination Application which remained undisposed of in the 2016 Summons be adjourned.

62 Ren's Fifth Affidavit of Documents was filed on 12 March 2020.

63 I heard the Cross-Examination Application on 15 December 2020, and granted it following a ruling delivered ex tempore. To briefly summarise, I read Ren's Fifth Affidavit of Documents in the context of her previous affidavits of documents and the 2019 Mukhtar Orders, and found it to consist of formulaic references to a lack of documents within the categories in Schedule 1 to the 2019 Mukhtar Orders and statements as to why some of the categories, or some documents falling within some categories, were not relevant to the proceeding. I heard similar submissions on behalf of Pan, who had failed entirely to make a further affidavit of documents in response to the 2019 Mukhtar Orders. In the circumstances I considered that a further order for discovery by either Plaintiff would be futile and that both Plaintiffs should be cross‑examined on their affidavits of documents. The orders I made that day were made pursuant to s 57 of the CPA, as I was satisfied that Sinicorp had established that there was a reasonable basis to believe that the Plaintiffs may be misinterpreting their discovery obligations or failing to disclose discoverable documents.

64 Notwithstanding my indication that a further order for discovery would be inutile, Ren's Sixth Affidavit of Documents was filed on 5 February 2021. Ren was cross-examined on her affidavits of documents on 9 February 2021 and on 9 March 2021.

65 Pan's Third Affidavit of Documents was filed on 15 February 2021. Pan was cross‑examined on 18 February 2021.

66 The Fourth Plaintiff was also ordered to be cross-examined on his affidavits of documents, which examination took place on 12 May 2021.

67 Following the examinations of Ren and Pan, by letter dated 10 May 2021 Sinicorp set out in detailed terms its contentions that the Plaintiffs had failed in their discovery obligations and invited each of them to file and serve a further affidavit of documents. This letter did not receive a response.[5]

68 On 18 June 2021 Sinicorp filed the Summons for the present application.

69 The Summons came on for hearing on 23 July 2021 and was adjourned part-heard to 10 August 2021.

70 In support of its Summons, Sinicorp submits that the Court must first determine whether there has been conduct falling within s 56(1) of the CPA, being:

(a) a failure to comply with discovery obligations;

(b) a failure to comply with any order or direction of the Court in relation to discovery; or

(c) conduct intended to delay, frustrate or avoid discovery of discoverable documents.

71 Sinicorp submits that there has been a clear failure to comply with discovery obligations and with the Mukhtar Orders.

72 Sinicorp also submits that the Plaintiffs' conduct over the course of the proceeding has been intended to delay, frustrate or avoid discovery of documents which are harmful to their claims or defence, or helpful to Sinicorp's counterclaim. In saying so, Sinicorp submits that it is not required to show an abuse of process or contumelious conduct on the part of the Plaintiffs to establish a basis for the orders it seeks,[6] but suggests that such a finding may be warranted in this case and would support its application for a dismissal of the claims and defence.

73 Sinicorp submits that in considering whether an order under s 56(2)(j) is appropriate, the Court should consider the nature and extent of the prejudice suffered by reason of the default. It submits that there has been extensive delay in the proceeding, substantial costs incurred in the interlocutory proceedings concerning discovery, and the potential for very great prejudice to Sinicorp by reason of its inability to properly obtain documents from the Plaintiffs which it says are required to establish aspects of the Defence and Counterclaim.

74 Sinicorp submits that, in addition to s 56(2)(j) of the CPA, the Rules also provide for significant penalties for default of discovery obligations. In this regard Sinicorp referred to r 24.02(a), which empowers the Court to order that a proceeding be dismissed or a defence struck out on default of orders for discovery. It also directed the Court's attention to r 29.12.1(3)(a), which gives the Court power to order that a proceeding be dismissed or a defence struck out where a party fails to comply with a default notice issued under r 29.12.1(2). Further, Sinicorp referred the Court to r 29.14, which provides that a party who does not comply with orders pursuant to rr 29.08(2), 29.11 or 29.12 may be liable to committal. In Sinicorp's submission, these provisions show that the legislature and the Court recognise the critical importance of discovery and, accordingly, enable the Court to sanction those who neglect their discovery obligations.

75 Sinicorp submits that the peculiar circumstances of the case, where a large number of documents establishing the facts of the matter are uniquely in the possession of the Plaintiffs, make proper discovery particularly important.[7] Sinicorp submits that from 2010 until 23 December 2011 Ren and Liu were in control of the First Defendant's records and generated records while engaged in conduct in furtherance of the Alleged Conspiracy. It is said that documents were, or should have been, created and retained by Sinicorp, but these documents are not in the possession of Sinicorp. It is said that the alleged conspirators created documents and used emails and bank accounts at the relevant time in relation to matters that are the subject of this proceeding, relating to Sinicorp's assets, but which documents and records were not placed in Sinicorp's possession. Further, Sinicorp contends that a number of categories of documents relate to personal bank accounts, email exchanges and other matters to which Sinicorp would have no access other than through proper discovery.

76 Sinicorp submits that it would be inappropriate and inutile to order further discovery. It is submitted that the affidavits of documents filed in the proceeding, the evidence of the Plaintiffs given on cross-examination, and the Plaintiffs' affidavits in response to the Summons reveal that the Plaintiffs consider themselves entitled to withhold certain documents or classes of documents on the basis that, in the Plaintiffs' view, they are not to be relevant to the proceedings. The evidence is also said to reveal that certain documents or classes of documents have not been subject to reasonable and good faith efforts on the part of the Plaintiffs to obtain, and that a number of documents have been deliberately withheld, whether under cover of objections as to relevance or otherwise. Sinicorp says that this is evidence of at least an ongoing and fundamental misapprehension as to the Plaintiffs' discovery obligations, if not intentional frustration or avoidance of those obligations, which cannot be cured by the making of a further order. Further, it is submitted that the discovery orders in the proceeding, including the 2019 Mukhtar Orders, are sufficiently specific that a further order would add nothing to the Plaintiffs' understanding of their obligations.

77 Sinicorp also submits that it is appropriate to dismiss the claim and defence to counterclaim on the basis that the other sanctions set out in s 56(2) of the CPA would not be suitable to address the Plaintiffs' default. According to Sinicorp:

(a) an order to initiate proceedings for contempt of court pursuant to s 56(2)(a) would not address the claim or defence to counterclaim, or the prejudice to Sinicorp in maintaining its defence and counterclaim;

(b) adjournment with costs, including indemnity costs, pursuant to ss 56(2)(b) and (c) would not address the effects of the default on the viability of the proceedings, and may only extend the discovery dispute;

(c) preventing the Plaintiffs from taking any step in the proceeding pursuant to s 56(2)(d) would cut against the overarching obligations to proceed promptly and effectively to trial, and would be difficult to frame; and

(d) an order limiting the use of evidence, establishing particular facts or for any adverse inferences pursuant to ss 56(2)(e), (f) or (h) would be difficult to frame, and would not necessarily assist Sinicorp which seeks to rely on evidence which has not been discovered.

78 Sinicorp submits that, in the circumstances set out above, the Court should exercise its discretion to dismiss the Plaintiffs' claims and defences to counterclaim. Sinicorp acknowledges that the discretion should be exercised with restraint, but says that the Plaintiffs' non-compliance with their discovery obligations indicates an unwillingness or inability to cooperate with Sinicorp and the Court which is causing unnecessary delay and expense to Sinicorp. Further, the Plaintiffs' non-compliance is characterised as very substantial and a blatant disregard of prior orders, and that in such a situation the dismissal of the claim and defence to counterclaim is warranted.

79 The Plaintiffs made some preliminary submissions about whether the Summons or the supporting material properly identified the nature of the alleged defaults in discovery, or the relief sought. Though it is not clear where this submission was intended to lead, I reject it. The Summons was clearly framed by reference to s 56(2)(j) of the CPA and the Plaintiffs cannot have been taken by surprise by the nature of Sinicorp's application.

80 The Plaintiffs submit that dismissing a claim or defence to counterclaim for failure to make discovery is a 'drastic' step which should not be done lightly. The Plaintiffs disputed that the jurisdictional basis for such an order had been met in this case, being conduct meeting the description of s 56(1) of the CPA, and focussed almost exclusively on this issue in their submissions.

81 The Plaintiffs submit that their affidavits of documents establish that the Plaintiffs have discovered all those documents which they could access or were in their possession or control that are relevant to the proceedings. The Plaintiffs also provide explanations as to which documents are said not to exist, to not be accessible, to already have been discovered, or to otherwise already be in Sinicorp's possession.

82 The Plaintiffs submit that Sinicorp ought to have in its possession all of the relevant documents, because Sinicorp was 'micro-managed' by Tian with the assistance of Cheng and Yang. To the extent that this submission relates to discovery, it is of no moment as it is clear that Sinicorp does not have all of the documents it seeks. To the extent that the submission about 'micro-management' goes further than this, it is a submission on the ultimate subject matter of the proceedings including Sinicorp's counterclaim and is not relevant here.

83 The Plaintiffs also submit that, taken together with the documents discovered by Liu and Sinicorp, and the documents produced pursuant to subpoenas issued by Sinicorp to Stan Kwong, Anthony Zita, Liu, Hai Shan Feng and Jiann Gwo Ni, Sinicorp is already in possession of all relevant documents. It is submitted that the absence of any proceedings for contempt in relation to the subpoenas reinforces this point.

84 The Plaintiffs submit that, in accordance with what it described as the 'normal rule', the Plaintiffs' affidavits of documents are conclusive and cannot be challenged by a 'contentious' affidavit such as the Lim Affidavits in support of the Summons.[8] The Plaintiffs submit that they have never admitted the existence of discoverable documents which have not been discovered. It is said that there has been no clear and undisputed evidence proving the existence of documents which have not been discovered.

85 The Plaintiffs cite my decision in Muchnicki & Anor v Avalanche Management Pty Ltd & Anor[9] for the proposition that in challenging the adequacy of a party's discovery:

It is not enough for there to be vehement assertions that 'relevant documents exist which have not been discovered' without an identification of those documents and an explanation of how and in what way they are relevant to an issue in the case.

86 It is submitted that the Lim Affidavits in support of the Summons do not specifically identify the further documents said to exist, produce clear evidence that these documents exist, or show how Sinicorp is prejudiced by the non-production of these documents.

87 The Plaintiffs submit that no further documents in relation to the counterclaim exist to be discovered, for the simple reason that there was no conspiracy to defraud Sinicorp.

88 Notwithstanding the Plaintiffs' submissions to the effect that they had made full and proper discovery, the Plaintiffs' First Outline dealt extensively with the principles relating to an order for further discovery. After Sinicorp pointed out, at the first day of hearing of the Summons that the Summons did not seek further discovery, the Plaintiffs prepared and filed the Plaintiffs' Second Outline for the further hearing of the Summons on 10 August 2021. I do not understand the Plaintiffs to press any submissions in relation to an order for further discovery, either in opposition or as a more proportionate alternative to Sinicorp's preferred remedy in the circumstance that a default in discovery is identified.

89 The Plaintiffs made further and more technical submissions in relation to the past orders for discovery and the analytical approach the Court should adopt. It was said that the 2015 Mukhtar Orders and the 2019 Mukhtar Orders each required the Plaintiffs to file and serve affidavits of documents stating whether any documents in the prescribed categories are or have been in their possession. The Plaintiffs submit that the Mukhtar Orders were confined to r 29.08(2)(a) of the Rules and did not extend to subsection (b) requiring the Plaintiffs to depose to documents not in their possession. The Plaintiffs also submit that the Mukhtar Orders did not require them to 'discover or produce' documents, but merely to depose as to their possession of documents. On this basis it is said that the Plaintiffs have discharged their obligations under the Mukhtar Orders.

90 Further, the Plaintiffs sought to distinguish orders for particular discovery under r 29.08(2) from orders for discovery under r 29.07, though it was not clear where this submission ultimately led.

91 The Plaintiffs also point to the error in the 2019 Mukhtar Orders whereby Pan was ordered to make an affidavit in relation to Schedule 2, which refers to the Third Plaintiff throughout. The Plaintiffs submit that Pan's Third Affidavit of Documents clearly complied with this order in stating that Pan does not have, and has not had, any of the documents in the categories in Schedule 2. It was said that, notwithstanding that Schedule 2 was clearly attached or drawn in error, Pan remained compelled to file an affidavit strictly in accordance with the 2019 Mukhtar Orders.

92 The Plaintiff also referred to a number of alleged defaults in Sinicorp's own discovery to in support the position that a reasonable response to such defaults is not to engage in lengthy interlocutory battles, but instead raise any defaults and consequent evidentiary implications at trial.

93 The Plaintiffs also submit that the Statement of Claim was not finalised until after the 2015 Mukhtar Orders were made, and that the Defence and Counterclaim and Reply and Defence to Counterclaim were not filed until after the 2019 Mukhtar Orders were made. Although it was not made explicit, I understand this submission to mean that the parties' discovery obligations were not settled until the finalisation of the pleadings.

94 The Plaintiffs finally submit that the Summons is an abuse of process, as Sinicorp's pursuit of discovery is substantially disproportionate to the value of the subject matter. In this respect the Plaintiffs cited J Forrest J in Volunteer Fire Brigades Victoria v CFA (Discovery ruling)[10] where his Honour observed that the process of discovery should remain proportionate both with respect to the issues in dispute and the likely cost to be incurred in an exhaustive search for documents.[11] In this regard, the Plaintiffs submit that Sinicorp's pursuit of discovery is an attempt to drain the Plaintiffs' resources and determination to prosecute their claims, and/or is a 'fishing expedition', in circumstances where the Plaintiffs have already made discovery.

95 Sinicorp seeks orders that the Plaintiffs' claims against Sinicorp, and their defences to Sinicorp's counterclaim, be dismissed pursuant to s 56(2)(j) of the CPA.

96 Section 56 of the CPA is in Part 4.3 of the CPA which relates to disclosure and discovery, and is in the following relevant terms:

Section 56 - Court may order sanctions

(1) A court may make any order or give any direction it considers appropriate if the court finds that there has been -

(a) a failure to comply with discovery obligations; or

(b) a failure to comply with any order or direction of the court in relation to discovery; or

(c) conduct intended to delay, frustrate or avoid discovery of discoverable documents.

(2) Without limiting subsection (1), a court may make an order or give directions -

...

(j) dismissing any part of the claim or defence of a party who is responsible for any conduct referred to in subsection (1)...

97 It is clear from the terms and structure of s 56 that the Court must find, as a threshold matter, that conduct meeting the description of ss 56(1)(a), (b) or (c) has occurred. Where such a finding is made, jurisdiction to make an order pursuant to s 56(2), including dismissal pursuant to s 56(2)(j), is established.[12]

98 The applicant for orders under s 56(2) bears the onus of establishing that there has been conduct meeting the description of ss 56(1)(a), (b) or (c). I do not consider that it is necessary in every case to show that specific documents exist but have not been discovered, as this would impose a different or greater burden on an applicant than required by the terms of s 56(1). Further, and for obvious reasons, a requirement to show that specific documents exist may be unduly difficult or even impossible to meet.

99 Once conduct meeting the description of ss 56(1)(a), (b) or (c) is established, it falls to the Court to determine whether it is appropriate to make an order dismissing the party's claims and defences, or some other order. While the circumstances in which the power may be exercised have not been exhaustively defined, the exercise of the discretion is not at large.[13]

100 In Jia v Lee,[14] Derham AsJ considered an application under r 24.02 of the Rules and s 56(2)(j) of the CPA to strike out a defence for failure to comply with orders for discovery. In the course of that decision his Honour cited with approval the approach taken by Vickery J in Hodgson v Amcor with respect to the factors guiding the Court's discretion to dismiss or strike out pleadings for non-compliance with orders. In that case, after reviewing the authorities Vickery J said:[15]

All matters relevant to the exercise of the power should be weighed. In different cases, the factors may assume greater or lesser significance. Such factors may include the following considerations, which are examples derived from the case law examined:

(a) the effect of the contravening conduct on the just resolution of the real issues in the proceeding in an efficient, timely and cost-effective manner;

(b) the extent of any delay caused by the contravening conduct and the prejudice associated with it, and whether the delay was inordinate and inexcusable;

(c) whether the history of non-compliance by a party is such as to indicate an unwillingness or inability to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period. In determining whether the defaulting party is either subjectively unwilling to cooperate or, for some reason, is unable to do so, the cumulative effect of the party's defaults may be taken into account;

(d) whether the non-compliance is continuing and is continuing to occasion unnecessary delay, expense or other prejudice to the other party (ie. a significant continuing default which continues to impose an unacceptable burden on another party;

(e) the prejudice which might reasonably be assumed to follow for the other party arising from the contravening conduct, and that which is shown to have arisen;

(f) the extent to which the achievement of efficiency in the conduct of proceedings by other parties in other cases before the Court have been compromised;

(g) the veracity and reasonableness of any explanation given for the contravening conduct;

(h) whether the default was intentional or the product of contumelious conduct;

(i) whether any alternative remedy by way of a lesser, but equally efficient, sanction is available;

(j) whether the contravening conduct has rendered it impossible to conduct a fair trial, or would make any judgment in favour of the offending party unsafe, or which would render any further proceedings unsatisfactory and prevent the Court from doing justice, or there is a real risk of any of these things happening; and

(k) whether the object of the order which has been contravened is ultimately secured (eg. the late production of a document which has been withheld on discovery.

Given the gravity and effect of a striking out order, it should only be made in a clear case where the exercise of the discretion properly calls for this to occur and when the sanction ordered is the least that is necessary to achieve the ends of appropriate case management. Further, as observed in Lenijamar the power conferred on the Court must be "administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable ... and of the likely serious consequences to [the party in default]".

101 That a dismissal or striking out of a party's case is a measure of 'last resort'[16] is well established in the context of the Court's inherent power to supervise, and take appropriate action in order to prevent injustice in the management of, a proceeding before it.[17] This applies with equal force to the powers conferred on the Court by the CPA.[18] However, there appear to be elements of the common law test applied in the exercise of the Court's inherent jurisdiction which are attenuated in the context of s 56(2)(j) of the CPA. In particular, to the extent the common law test required an applicant to show a lack of good faith in the party whose pleadings are subject to dismissal or strikeout,[19] or required an applicant to show a 'real risk' that the defaulting conduct amounted to 'an abuse of process which would render any further proceedings unsatisfactory and prevent the Court from doing justice',[20] s 56(2)(j) of the CPA is not so confined. Rather, s 56(2)(j) treats a risk of an abuse of process and a lack of good faith as factors in the exercise of the discretionary power conferred by that section of the Act.[21]

102 Similarly, the authorities in respect of s 56(2)(j) and cognate rules of court clearly establish that contumelious conduct or intentional default is not required before an order dismissing a proceeding or striking out a defence is made for default of discovery obligations.[22]

103 Proper exercise of the power under s 56(2)(j) of the CPA also involves a determination of whether to dismiss or to strike out the whole of a claim or defence or, where appropriate, to do so in part only. In Cowell, the Victorian Court of Appeal considered r 24.02, which is not expressly framed to permit a partial dismissal or strike-out, yet permits the Court to order so-called 'issues-based sanctions', such as an order restricting or denying a party's right to contest certain issues if the prejudice to the other party arising from the default specifically related to those issues.[23] The Court of Appeal further considered that an order striking out the whole of a defence was 'out of proportion to the wrong' in circumstances where only some issues in dispute were the subject of the default in discovery while other issues were entirely unrelated to that default.[24] The Court of Appeal directed attention to the particular prejudice suffered by the non-defaulting party by the default, and stated that the rules of court 'do not exist to punish'[25] or, indeed, to produce an evidentiary windfall for a non‑defaulting party. On the facts before it, the Court of Appeal overturned an order striking out a defence for non-compliance with discovery orders on the basis that no relevant prejudice arose from the non-compliance. This was so in circumstances where the documents that were the subject of the non-compliance were generally already in the possession of the plaintiff and in circumstances whereby it could not be shown that the production by the defendant of its own copies would alter or improve the plaintiff's position.[26]

104 The approach taken in Cowell relied on the identification of documents which were discovered. Yet it is important to stress that it will not always be possible to particularise a failure to make discovery in that way, especially in cases such as the present where the extent and nature of any documentation is very much in issue. I do not understand the decision in Cowell to compel a narrow view whereby prejudice to a party may only flow from the non-disclosure of specifically identified documents. Such an approach would be unduly narrow, and in some cases - such as in a conspiracy claim - may be tantamount to requiring a party to prove at least part of their case by way of demonstrating that certain documents exist, notwithstanding that they have not been discovered. Instead, the Court must have regard to the context and purpose of s 56(2)(j) as a case management tool and consider each of the factors outlined in Hodgson v Amcor as appropriate to the circumstances of a particular case.

105 I accept Sinicorp's submission that it is appropriate to approach the proportionality and correctness of an order under s 56(2)(j) of the CPA by reference to the range of other sanctions which the Court may order, without limitation, under s 56(2). I will address these in more detail below when considering the appropriate relief in respect of each Plaintiff. However, I note here that an order for further discovery is not specified in s 56(2) nor would I be inclined to make such an order in the circumstances. Neither party sought an order for further discovery. Further, I accept Sinicorp's submissions[27] that it would be inutile to make such an order in the circumstances.

106 While proportionality is fundamental to the ordering of sanctions under s 56(2) of the CPA, the Plaintiffs' reference to the question of proportionality in Volunteer Fire Brigades is inapposite. That was a case in which the plaintiff served on the defendant a letter setting out categories of documents of which it demanded discovery, the majority of which categories were held by J Forrest J to be too wide or entirely irrelevant and, when taken together, 'represent[ed] a totally non-proportionate approach to the issues in the trial'.[28] The passage cited by the Plaintiffs for the proposition that discovery must be proportionate to the 'value of the subject matter' is in fact about proportionality to the relevance of issues in relation to which discovery is sought. It arises in the context of his Honour's view that, in light of the High Court of Australia's decision in Armstrong, the CPA compels the Court to focus the process of discovery on the central issues in dispute.[29] That is exactly what Mukhtar AsJ did in the Mukhtar Orders, which clearly articulate categories of documents which are relevant to the issues in dispute. In this case, and by the Summons, the Court is no longer concerned with the proportionality of discovery to the issues in dispute, and is instead concerned with the proportionality of a sanction to the default in discovery. The Plaintiffs' submissions in this regard misconceive the nature of the application before the Court.

107 The Plaintiffs' reliance on my decision in Muchnicki is similarly misconceived. That was a decision on an application for orders for further discovery pursuant to r 29.08, concerning whether the documents sought were relevant to the proceeding and whether there were grounds for a belief that the documents sought existed and were in a party's possession. Those questions have been determined in this proceeding. The Court is now concerned with whether there has been a failure to make discovery as ordered and, if so, what is the appropriate sanction.

Approach to the assessment of the Plaintiffs' discovery

108 The Plaintiffs' submissions raise the issue of whether Sinicorp can seek to 'go behind' the Affidavits of Documents and challenge their adequacy. The Plaintiffs properly conceded that an affidavit of documents is only prima facie conclusive, but said that the 'contentious' Lim 5 June Affidavit and Lim 15 June Affidavit cannot be used to show that the Affidavits of Documents are insufficient.

109 Sinicorp did not respond directly to this submission, but referred the Court to evidence, including evidence given on cross-examination, which it said demonstrates a lack of understanding by the Plaintiffs as to their discovery obligations and a lack of candour as to the 'reasonable search' undertaken to make discovery. Sinicorp also refers to evidence which it says demonstrates the existence of specific documents which are relevant and which have not been discovered, and/or which raises suspicion that discovery of certain categories of documents is incomplete.

110 In my view, the authorities referred to by the Plaintiffs in support of the proposition that an affidavit of documents is conclusive and cannot be challenged by 'contentious' evidence do not go so far. In both FSU v CBA and Sunland, the Court referred with approval to the decision of Mulley v Manifold[30] as follows:

[It] cannot be shown by a contentious affidavit that the discovery made is insufficient. Before 1912, it was thought that the insufficiency had to appear from the pleadings, the affidavit of documents itself or the documents therein referred to. However, in British Association of Glass Bottle Manufacturers Ltd v Nettlefold, it was established that the insufficiency might appear not only from the documents but also from any other source that constituted an admission of the existence of a discoverable document. Furthermore, it is not necessary to infer the existence of a particular document; it is sufficient if it appears that a party has excluded documents under a misconception of the case. Beyond this, the affidavit of discovery is conclusive.

111 While there is some uncertainty in the authorities as to whether the rule has been 'relaxed' in some way,[31] even the classic formulation in Mulley proceeds on the basis that an affidavit of documents is only prima facie conclusive. As Logan J observed in Sunland:[32]

A claim for completeness in an affidavit verifying a list for discovery is not inviolate. Were that to be so there would, as Lockhart J noted in National Crime Authority v S, be potential for abuse. There must exist though some basis for questioning the sufficiency of such an affidavit. In the absence of any such basis the affidavit is regarded as conclusive.

112 It is clear that a party challenging an affidavit of documents may put on evidence of insufficiency, and there is no bar to the Court's consideration of that evidence in determining whether there is a basis for questioning the sufficiency of an affidavit of documents and, further, the extent of any insufficiency. In making these determinations, the Court may require more than a bare allegation of insufficiency in an affidavit in response. I do not think that the reference in Mulley to 'contentious affidavits' goes further than that. In any event, there is evidence of insufficiency in the present case and not just bare allegations by Sinicorp.

113 I do not consider that Mulley requires that Sinicorp raise evidence which specifically disproves some part of one of the Plaintiffs' affidavits of documents, or else the affidavit evidence is unassailable. Requiring such specific evidence that there is a document which has not been discovered would place an unreasonable burden on an applicant for relief under s 56 of the CPA in circumstances where the evidence, when taken together, may cause the Court to doubt an affidavit as a whole. It is inappropriate to treat an affidavit as a series of disparate claims unconnected to each other or to the deponent's credibility. Further, the simple proposition that, where a fact is to be proved, the Court 'must feel an actual persuasion of its occurrence or existence'[33] applies equally to the Plaintiffs' evidence as to their discovery as it does to Sinicorp's allegations of default.

The role and importance of the Mukhtar Orders in this application

114 Both parties largely framed their submissions around the 2019 Mukhtar Orders and, to a lesser extent, the 2015 Mukhtar Orders. Both parties, to different extents, also made submissions concerning the general principles of discovery and the general and continuing obligations to make discovery arising from the CPA and the Rules.

115 The Mukhtar Orders helpfully crystallise the discovery dispute and the Plaintiffs' obligations. They provide a fixed reference point for the relevance of certain categories of documents as well as for the form and timetable for discovery. Further, the 2019 Mukhtar Orders represent the consent position of the parties and a perfected order of this Court as to the adequacy of discovery up to that point, in respect of the prescribed categories, and on the terms of discovery going forward. As such, the 2019 Mukhtar Orders occupy a position of particular significance in the present application.

116 It is true that both of the Mukhtar Orders required the Plaintiffs to file and serve affidavits 'stating whether any document [in one of the prescribed categories] is or has been in her possession'. The Mukhtar Orders are also framed by reference to r 29.08(2) as a whole, and not to r 29.08(2)(a) alone.

117 It is also true, as the Plaintiffs point out, that the 2019 Mukhtar Orders mistakenly required Pan to depose as to the possession of documents according to a schedule which referred to the Third Plaintiff. I will address this in more detail later, however I cannot mention it now and not make some comment. Pan's affidavit of documents in response the 2019 Mukhtar Orders, when eventually made on 11 February 2021, did not refer to this error. There is no evidence that Pan at any stage raised this with Sinicorp. It was not raised at the hearing on 15 December 2020 when Sinicorp sought orders for cross-examination of the Plaintiffs. As far as I am aware, it was raised for the first time at the hearing on 10 August 2021. That it is raised now, in an attempt to excuse Pan's conduct and to contend that she is not in default of the 2019 Mukhtar Orders, is staggering. Either it was known at an early stage and ought to have been raised it, but Pan elected not to do so, or it is some latterly identified error relied on in a very technical manner. Whichever it be, it is evidence in and of itself of an attempt to delay, frustrate or avoid discovery of discoverable documents. It speaks of a cavalier attitude to Pan's discovery obligations.

118 However, the Mukhtar Orders do not define the whole of the Plaintiffs' obligations. The Plaintiffs are also subject to general and continuing obligations to make discovery pursuant to ss 26 and 54 of the CPA, r 29.01.01 of the Rules, and the 2014 Derham Orders. Further, the Summons was not issued solely on the basis that the Plaintiffs had failed to comply with the Mukhtar Orders. Instead, the Summons seeks orders under ss 56(2)(j) and 56(2)(c), which orders may be made on the basis of a failure to comply with discovery obligations broadly or conduct intended to frustrate, delay or avoid discovery of discoverable documents, as well as a failure to comply with discovery-related orders.

119 Rule 29.08 provides for orders for 'particular discovery', and is located under Order 29 which concerns discovery and inspection of documents. It is abundantly clear from the terms and context of r 29.08(2) that it does not derogate from the general requirements for discovery or from the consequences of a failure to comply with a discovery-related order - which consequences may include an order pursuant to s 56(2)(j) of the CPA. It is also clear that the Mukhtar Orders did not, for the purposes of s 54 of the CPA, 'otherwise order' that discovery by the Plaintiffs would only be pursuant to those orders and r 29.08.

120 It is unnecessary to determine whether as a matter of construction of the Rules an affidavit filed pursuant to an order made under r 29.08(2) must comply with both subsections of that Rule to meet the description of an affidavit so ordered, or is an 'affidavit of documents' for the purposes of r 29.04. I did not hear submissions on either point, and in any event consider that the parties' general and continuing discovery obligations cut across any complexity which may arise from the particular language in r 29.08.

121 In ACN 092675164 (in liq) v National Builders Group Pty Ltd[34] Vickery J considered the defendants' non-compliance with an order to make discovery in respect of specific categories, which order contained a self-executing provision for dismissal of the defence, but which did not specifically state that the affidavit of documents was required to be in accordance with r 29.04 of the Rules. His Honour declined to give effect to the self-executing provision in the order, and made further self-executing orders for affidavits of documents to be prepared in accordance with r 29.04.[35]

122 National Builders Group is not authority for the view that an order for an affidavit of documents to be produced does not require an affidavit in accordance with r 29.04 of the Rules unless specified in the order. It is only an instance of the exercise of judicial discretion to defer an order pursuant to s 56(2)(j) and to grant the defendants a further opportunity to make proper discovery. This aspect will be discussed further below.

123 To the extent that the Plaintiffs addressed a concept of discovery which is wider than r 29.08(2), it was said that they had no obligation to discover documents which they reasonably believe are already in the possession of Sinicorp pursuant to r 29.01.01(4)(a). The Plaintiffs also referred to s 26 of the CPA, which was said to limit discovery of documents to those considered to be 'critical to the resolution of the dispute'.

124 The approach the Plaintiffs appear to have taken is one of selective application of the general rules of discovery. According to this approach, the affidavits of documents may be confined by r 29.01.01(4)(a) and s 26 of the CPA such that only those documents which the Plaintiffs consider are not in Sinicorp's possession and which are directly relevant to what they perceive are the issues in dispute are to be included in an affidavit of documents made pursuant to the Mukhtar Orders. On the other hand it is said that their Affidavits of Documents are not subject even to r 29.08(2)(b), or to those requirements in s 26 of the CPA and r 29.04 requiring them to depose as to the documents that are claimed no longer to be in their possession. This approach is inconsistent and untenable, and appears to rely on the Plaintiffs' assessment of the relevance of documents or the likelihood that Sinicorp already possesses those documents over and above the categories of documents required to be discovered by the Mukhtar Orders.

125 Moreover, the Plaintiffs' approach entirely disregards the fact that the Plaintiffs' obligations pursuant to the Mukhtar Orders are additional to, not substitutive of, their general and continuing obligations to make discovery. For this reason, even if I were satisfied that the Plaintiffs had satisfied the Mukhtar Orders in a technical sense, this would not by itself satisfy me that full and proper discovery had been made.

126 The better view is that the Mukhtar Orders are orders for discovery in relation to particular classes of documents, in the context of apparent failures to make discovery, or misunderstandings or disputes between the parties as to the scope of required discovery. This is the basis for any order made pursuant to r 29.08(2).

127 A corollary of this view is that the categories of documents in the Mukhtar Orders are not exhaustive of the issues in dispute, but are definitive as to the relevance to the proceedings of documents falling within those categories. His Honour took the view in the 2015 Mukhtar Orders that, to avoid protracted discovery fights and to advance the case, the Court was required to:

[I]ntervene and judge by the nature of the case the sort of documents that ought be discovered that arise from allegations in the statement of claim or might have forensic utility. To that end, the Court has taken the approach of erring on the side of disclosure to try and advance the case.

128 The 2019 Mukhtar Orders were made by consent between the parties, but are also clearly related to issues arising from the pleadings. On this basis, the Mukhtar Orders represent the Court's determination as to the relevance of the documents falling within those categories for the purposes of discovery.

129 The Plaintiffs are not now entitled to challenge his Honour's orders on the basis that documents falling within the categories ordered to be discovered are not relevant. Further, I consider that such a challenge indicates a serious misunderstanding of discovery obligations, or a deliberate failure to comply with those obligations. That the Mukhtar Orders put the Plaintiffs on clear notice of their obligations to discover at least the documents prescribed in those orders will also be relevant to an assessment of whether the Plaintiffs had or have formed the relevant intention to frustrate, delay or avoid their discovery obligations.

130 The Plaintiffs' submissions in relation to the settlement of pleadings after the Mukhtar Orders were not fully developed, but I understand them to mean that the Plaintiffs' discovery obligations were not fixed until the pleadings were settled and that at least some delay in providing fulsome discovery is referable to the status of the pleadings. This may be the usual course for discovery, but this submission overlooks the operation of the Mukhtar Orders as orders of the Court imposing discovery obligations. The Plaintiffs cannot say that discovery obligations did not arise, or were in some way uncertain, until the finalisation of all of the pleadings.

131 The Plaintiffs remained obliged to make proper discovery of documents relevant to the issues in the proceeding pursuant to their general obligations to make discovery, at least from the time the 2014 Derham Orders were made. In assessing whether these obligations have been complied with, care must be taken not to retrospectively apply the Mukhtar Orders or the prescribed categories of relevant documents where it may be unfair on the Plaintiffs to do so.

132 The Court is aware that the approach taken by his Honour in making the 2015 Mukhtar Orders was to 'err on the side of disclosure to try and advance the case', and this approach appears also to have been taken by the parties in respect of the 2019 Mukhtar Orders which, as I noted above, were made by consent. However, the Mukhtar Orders were not expressed to be orders pursuant to r 29.05.02 for expanded discovery beyond the requirements of r 29.01.01. Further, the 2015 Mukhtar Orders were made in the context of his Honour's concern, expressed in those orders, that the Plaintiffs' discovery may only have disclosed documents which 'support the plaintiffs' case, but not documents that might harm it.'

133 On an analysis of the categories set out in the Mukhtar Orders, it is clear that some are categories of documents which were always relevant and required to be discovered. For example, correspondence or documents leading up to the making and/or rescission of the alleged Contracts of Sale and Nomination Agreements have been relevant documents since the commencement of the proceeding, or at least since the circumstances in which the Contracts of Sale and Nomination Agreements were made was brought directly into issue by Sinicorp's first Defence and Counterclaim filed 7 October 2014. In this respect the inclusion of this category of documents in the Mukhtar Orders does no more than specifically require their discovery in circumstances where his Honour had identified a risk that the Plaintiffs had not, or would not, discover all relevant documents.

134 Other categories of documents in the Mukhtar Orders may have a wider scope but were likely required by his Honour due to the risk he had already identified that the Plaintiffs had taken, and would continue to take, a selective approach to discovery and/or did not have a proper understanding of what documents should be discoverable. For example, the requirement in paragraph (b) of Schedule 1 to the 2019 Mukhtar Orders that Ren discover all bank statements and other records in respect of all bank accounts in Australia and China for the period January 2008 to December 2012 can be seen to require discovery in a broad and general way. It is possible that some documents falling within that paragraph might be irrelevant, properly understood, but are nonetheless required to be discovered pursuant to the 2019 Mukhtar Orders. In some cases it may be difficult to disentangle the relevance of documents on the basis of the Mukhtar Orders from their relevance in accordance with r 29.01.01 of the Rules. I would not in such circumstances find a failure to comply with discovery obligations solely on the basis that the full breadth of bank records required by the 2019 Mukhtar Orders were not discovered prior to the making of those orders. However, and to continue the example of bank records, where there is evidence that records have not been discovered which are relevant to the issues in dispute and which ought to have been discovered, then a failure to make discovery of these records prior to the 2019 Mukhtar Orders will be relevant to determining whether the Plaintiffs have engaged in the conduct set out in s 56(1) of the CPA.

135 In making these assessments, I consider that the Court is entitled to assume that the Plaintiffs have been properly advised as to the effect of their discovery obligations, including the operation of the Mukhtar Orders. Where a particular document or class of documents was discoverable at a particular time, the Plaintiffs cannot be heard to say that they did not make proper discovery because they did not understand their obligations.

136 I do not intend to interrogate the Plaintiffs' discovery in relation to each category of documents prescribed in the Mukhtar Orders, or in relation to all documents which may be relevant to the issues in the proceeding which do not fall within these categories. Where Sinicorp has referred to evidence or particular categories in relation to which it says there has been a failure to make proper discovery, or conduct intended to delay, frustrate or avoid discovery obligations, the evidence and prescribed categories of documents are outlined below. I consider that it is proper to confine my consideration to those aspects of the Plaintiffs' discovery which were openly contested and for which evidence has been adduced. In doing so, I do not intend to make any findings that other aspects of the Plaintiffs' discovery not referred to have been properly conducted, or that full discovery has been made.

Has Ren failed to comply with discovery obligations or orders related to discovery, or engaged in conduct intended to delay, frustrate or avoid discovery of discoverable documents?

137 In addressing this question, I am going to begin by dealing with Ren's general approach to discovery, her affidavits of documents and other affidavits, and my views about her credibility as a witness. I will then consider particular classes of documents, primarily those emphasised by Sinicorp, as a means of exploring the adequacy of Ren's discovery and the conduct of her discovery obligations.

138 Ren has filed six affidavits of documents in the proceeding. Ren's Second, Third and Fourth Affidavits of Documents were filed after and pursuant to the 2015 Mukhtar Orders. Ren's Fifth and Sixth Affidavits of Documents were filed after and pursuant to the 2019 Mukhtar Orders.

139 Each of Ren's affidavits of documents is structured in a similar fashion. Ren deposes in each that she has in her possession, custody or power the documents in Schedule 1 to the respective affidavit of documents, and that she has had, but no longer has, in her possession, custody or power the documents in Schedule 2. There is a small amount of duplication of documents discovered in each affidavit of documents. Except for Ren's First Affidavit of Documents, none of Ren's affidavits of documents include a Schedule 2 as referred to.

140 In cross-examination Ren was asked whether her discovery obligations extended to production of documents which were harmful to her case or would assist Sinicorp's defence or counterclaim. Ren agreed that her discovery obligations did extend so far.[36] However, at another time, Ren also accepted that her discovery obligations extended only to providing documents that would support her case.[37] Ren's more detailed evidence also belied her acceptance of an obligation to discover documents harmful to her case, or helpful to Sinicorp's case. In particular, Ren was asked about what documents she had searched for so as to give discovery. She said that she had looked for 'all the documents to prove that [she had] the money to pay ... and settle the property.'[38] She agreed with the proposition that she had confined her searches only to the documents which would assist her in proving she had paid for and purchased the properties she was claiming, saying that 'anything else would not be relevant to [her]'. There is other evidence, discussed below in respect of particular classes of documents, which reinforces the impression that Ren considered herself obliged only to produce documents which she considered relevant and helpful to her claims. I consider that Ren believed this was and continues to be the limit of her discovery obligations.[39]

141 Ren's cross-examination on the details set out in her affidavits of documents is instructive. When taken to the 2019 Mukhtar Orders Ren stated that she had seen them before, and had prepared the statements made in Ren's Fifth Affidavit of Documents with her solicitor, who had recorded in writing what he was told by Ren.[40] Ren was then taken to paragraph 15 of that affidavit, and specifically to a sentence which began with 'Sinicorp did not allege in its pleadings that its directors or shareholders were obliged to give loans to it'. After a great deal of dissembling Ren was asked if she had made such a statement to Mr Lim when preparing the affidavit. Ren responded that it could be the case but that, given the passage of time, she could not remember. Ren was asked if she had looked at the pleadings, to which she answered that the statement concerning whether there were allegations in the pleadings that Sinicorp's directors or shareholders were obliged to give loans to it was given to Ren by Liu. Ren was then asked what a pleading was, and she responded by saying it was a 'paper in the proceeding'. While she denied making up this evidence as she went along,[41] I refuse to accept that denial. Ren was then asked further questions about the details in Ren's Fifth Affidavit of Documents, such as what the references to particular paragraphs of the further amended reply and defence were. There is no need for me to recite each example, but it was plain from Ren's answers that Ren did not in fact provide such detailed information, including an analysis of the pleadings, to Mr Lim for him to record for the affidavit. It is far more likely that Mr Lim drafted Ren's Fifth Affidavit of Documents and showed it to Ren. There is nothing necessarily wrong with that if Ren understands what it is she is deposing to, however her cross-examination made it plain that she does not comprehend the contents of the affidavit.

142 It is also instructive that Ren's Fifth Affidavit of Documents, rather than simply dealing with each category of documents she was required to address by the 2019 Mukhtar Orders, including by deposing as to whether she has or had such documents and if so what, sets out what purports to be her views about whether each category of documents is relevant by reference to the various pleadings and she disputes their relevance. That she considered this to be an appropriate response to the 2019 Mukhtar Orders illustrates that rather than comply with them, she chose to respond in an argumentative and inappropriate fashion.

143 The Plaintiffs' submissions also sought to put into contest the relevance of documents or classes of documents required to be discovered. The Plaintiffs' First Outline states that Ren's Sixth Affidavit of Documents shows that she 'discovered documents that she thought are relevant' and submits that Ren 'cannot be compelled to discover documents which are not clearly relevant to the central issues in dispute'. For the reasons set out above, I reject this submission.

144 I have had due regard to the risk posed to an examinee giving evidence via an interpreter that their evidence may not come across as intended, and that nuances of language - particularly legal or technical language - may be lost in the translation. However I do not think that Ren's evidence was so coloured. Rather, I find that Ren's evidence on cross-examination lacked credibility and threw doubt on the completeness and accuracy of her affidavits of documents. A number of significant inconsistencies and evidentiary lacunae are revealed when Ren's affidavits of documents, the documents produced in the proceeding to which Ren was taken on cross-examination, and Ren's responses to questions put to her in the cross‑examination, are properly scrutinised.

145 Sinicorp gave considerable attention on the cross-examination of Ren and in its submissions on the Summons to what it characterised as evidence of the existence of documents falling within categories of the Mukhtar Orders which have not been discovered. While such evidence will certainly be relevant, as noted at paragraph 98 above, I do not consider it necessary for Sinicorp to prove the existence of specific documents which have not been discovered. Other evidence, including evidence of reluctance to discover documents eventually discovered, evidence as to Ren's credibility, and evidence going to compliance with Ren's general obligations to make discovery will also be relevant.

146 For completeness, I have also had regard to the Ren June Affidavit. This affidavit deposes to another search of the documents in Ren's custody, possession and control, but is not an affidavit of documents and in any event does not make any new discovery.

147 Paragraph (b) of Schedule 1 to the 2019 Mukhtar Orders requires Ren to make discovery in relation to 'all bank statements and other records of [Ren] in respect of her bank accounts in Australia and China for the period January 2008 to December 2012.'

148 Paragraphs (a), (c), (e), (h), (i), (k) and (l) of Schedule 1 to the 2019 Mukhtar Orders also require disclosure of bank records or of documents which may include bank records, in relation to particular issues or transactions.

149 Further, paragraphs 1(a), (d) and (e) of the 2015 Mukhtar Orders required discovery of bank records, among other documents, relating to particular transactions as pleaded.

150 Ren's Second Affidavit of Documents, in response to paragraph 1(a) of the 2015 Mukhtar Orders, stated that she has no bank record or other record showing the debiting of funds used to make the 2009 Alleged Loan Payment. It further states, in response to paragraph 1(e), that Ren did receive two payments totalling $99,940 for the Trustworthy Loan, but does not discover documents in relation to those payments.

151 Ren's Second Affidavit of Documents also stated that the Alleged 2009 Loan Payment was made using money from the business of Ren's husband, Jinshan Jiao ('Jiao'), and that because of this and/or because of the time at which the Alleged 2009 Loan Payment is said to have been made, there are no financial records of this transaction which include the source of money for the transaction. Similarly, Ren appears to depose that records relating to the Alleged Ren Apartment Payments cannot be discovered because those payments were made in 2010 and 2011. However, the affidavit is not entirely clear as to whether the time of the Alleged 2009 Loan Payment and the Alleged Ren Apartment Payments is said to be causally related to the inability to make discovery at the time of the affidavit.

152 In Ren's Third Affidavit of Documents, a document titled 'CBA statement No. 6 in file BSB 063109, Account No 110115637' ('CBA Account'), was discovered ('CBA Statement No 6'). CBA Statement No 6 states at its head 'Statement 6', and provides for a start date of 1 November 2011 and an end date of 30 April 2012.

153 Ren's Fourth, Fifth and Sixth Affidavits of Documents did not discover any further documents in relation to Ren's CBA Account. Ren's Fifth Affidavit of Documents discovered two statements relating to Bank of Beijing accounts for the period between 3 March 2010 and 21 March 2011, being an account in Ren's name and an account in Jiao's name ('Bank of Beijing Statements').

154 Ren's Fifth and Sixth Affidavits of Documents repeat Ren's Second Affidavit of Documents insofar as they concern the Alleged 2009 Loan Payment, stating that the money came from Jiao's business. Ren's Sixth Affidavit of Documents develops this somewhat in stating that the sum of money was 'kept at [Jiao's] business premises in China', suggesting that the Alleged 2009 Loan Payment was a cash transfer from Jiao to Ren.

155 Ren's Fifth Affidavit of Documents also states that her sources of funds are not materially relevant to the central issues in dispute nor are they critical to the resolution of the dispute, as 'Sinicorp did not allege in its pleadings that its directors or shareholders were obliged to give loans to it'.[42] This is discussed above.

156 CBA Statement No 6 and the Bank of Beijing Statements are the only bank records that Ren has discovered.

157 On cross-examination on 9 February 2021, Ren was asked why statements 1 to 5 in relation to Ren's CBA Account were not produced in Ren's Third Affidavit of Documents or any other affidavit. Ren first answered that she could not find those statements as she did not have access to internet banking for the CBA Account at the time of Ren's Third Affidavit of Documents and received the statements through the post only.[43] I take this to mean that Ren had misplaced the paper copies of statements 1 to 5 for the CBA Account, and did not have electronic copies of these statements, but had found and discovered CBA Statement No 6.

158 Ren explained that she attended the Commonwealth Bank of Australia ('CBA') branch at Box Hill and spoke to 'the person at the reception' after receiving the 2019 Mukhtar Orders, who informed her that statements older than seven years old would be destroyed by the CBA.[44] When pressed on whether any bank officer had checked Ren's account number to see if statements were available, Ren dissembled but ultimately suggested that they had not.[45]

159 In light of her response concerning the CBA's supposed seven-year rule for retention of documents, Ren was asked why it was that documents relating to the CBA Account from between 30 April 2012 and December 2012 (being the end date in the relevant category of the 2019 Mukhtar Orders) were not produced. Ren was reminded that the 2019 Mukhtar Orders were made by consent in February of that year.[46] Ren then admitted that the statements should have been available, but suggested that she had only inquired after the statements in 2020,[47] and then said as follows:

I may have mixed up with the dates - sorry, with the month. It was till the end of - when I went to the bank, I requested from 2010 to 2012 --- I came in 2010 and I opened the account after 2010. Then I accept that this account was closed.[48]

160 When pressed on this issue, Ren suggested that the 'mix up' was the result of a mistake regarding the time at which she attended the CBA to inquire into bank statements.[49]

161 There followed an exchange between Counsel for Sinicorp and Ren:[50]

MR CLARKE: I suggest to you you're making this all up, Ms Ren. You just don't want to cooperate and provide proper discovery. What do you say to that?

REN: I have tried my best to provide whatever I can, all these details, and some are my private information, which are not related to this case.

MR CLARKE: That's - what do you mean by that? What does 'private information that doesn't relate to this case' mean?

REN: My belief is that I have provided the information which is relevant to the case, and the other information is not relevant to the case and is not necessarily needed.

MR CLARKE: That's the nub of it, isn't it, Ms Ren? No matter what the court orders, you are only going to provide what you think is relevant; isn't that correct?

REN: Yes, I think the other party's solicitor is making things hard, is making enquiries not relevant to the case.

MR CLARKE: I see. So you're the - what do you understand by a court order? What do you know - an order that applies to the plaintiffs, such as this order, made by His Honour on 26 February 2019 - what do you understand that means for you?

REN: It means I will need to try my best to provide whatever is required by His Honour.

162 Ren was then taken to the following transactions dated 22 December 20211 in CBA Statement No 6:[51]

Transfer to other bank, Netbank, Chin Lee Ren - $500.00

Transfer to other bank, Netbank, Chin Lee Ren - $1000.00

163 Ren conceded that these transactions were made to another bank account in her name, and said that she had forgotten to discover the bank records relating to this account and that '[s]ome accounts have been closed already'.[52] After saying that she had forgotten to discover these, counsel for Sinicorp put to Ren the proposition that she was hiding them because they do not help her case, to which she responded as follows:

I haven't hidden any evidence. If you believe I received money from anyone else. You may provide evidence.[53]

164 Tellingly, in the Ren June Affidavit, Ren says that she has no documents in her possession, custody or power other than those discovered in her First to Sixth Affidavits of Documents and does not take the opportunity to correct her discovery in respect of the gaps exposed on cross-examination which she admitted to, such as that referred to in the previous paragraph.

165 CBA Statement No 6 also showed Netbank transactions between Ren's CBA Account and an account with an account number ending with the number 'xx5653', being a debit from the CBA Account of $20,000 on 22 December 2011, credits to the CBA Account totalling $10,700 in January 2012, and a further debit of $18,000 on 26 January 2012. It was put to Ren that these were transfers to another account in Ren's control, which she denied. Ren stated that she could not recall the nature of those transactions, and later suggested that they may be transactions from an account owned by Liu in relation to a loan between Ren and Liu.[54]

166 When asked why the Bank of Beijing Statements related only to the period 17 June 2010 to 21 March 2011 rather than the full period of January 2008 to December 2012, Ren stated that her discovery reflected her time in Australia, and that prior to March 2011 'there weren't many transactions'.[55]

167 Ren was then asked to explain her failure to discover documents outside of the period 17 June 2010 to 21 March 2011, to which she claimed that any records prior to 17 June 2010 had 'expired' and were no longer available.[56] Ren gave evidence that she visited China in 2016, following receipt of the 2015 Mukhtar Orders, but did not give evidence of any steps taken to obtain bank records as required by the 2015 Mukhtar Orders while there. Instead, Ren suggested that there was 'no evidence to ... prove that [she] didn't ... go to the bank'.[57]

168 Ren was shown letters dated 8 August 2012 from Mr Kwong, a former solicitor of Ren's, which purported that deposit payments of $128,970 and $70,580 had been made for the purchase of two of the apartments she is alleged to have purchased. When asked from which account these sums are said to have been paid, Ren equivocated but eventually stated that the money was paid out of a joint account owned by Ren and her husband, Jiao, in China, into Yang's Bank of China account.[58] However, Ren later stated:[59]

... there's never been a joint account under my husband's and - and my name. What I said before was, ah, it - it was my account and my husband's account so they are separate accounts.

169 There are further specific transactions for which bank records and related documents are required to be discovered. Paragraph (e) of Schedule 1 to the 2019 Mukhtar Orders requires discovery in relation to:

... records and details of monies received by Ren from, or on behalf of, Hai Shan Feng and Jiann Gwo Ni in the period January 2008 to December 2012 in respect of the purchase, sale or transfer of the apartments located at 21 Cambridge Street, Box Hill.

170 Ren's Fifth Affidavit of Documents states that she received no money from Hai Shan Feng, and points to the pleading in her Statement of Claim as admitted in Liu's defence that Hai Shan Feng was to pay the deposit and balance directly to Sinicorp.[60] Ren does not depose directly to whether money was received from Jiann Gwo Ni.[61]

171 On cross-examination Ren was taken to a 'Transactions treated as sub-sales of land statutory declaration' form ('Sub-sales Statutory Declaration') in relation to the nomination of Apartment 102, apparently completed by or on behalf of Jiann Gwo Ni. The Sub-sales Statutory Declaration in respect of Apartment 102 identifies Sinicorp as the 'vendor', Ren as 'first purchaser' and Hai Shan Feng and Jiann Gwo Ni as 'transferees'. At clause 7.1 of the Sub-sales Statutory Declaration, which requires details of consideration given or agreed to be given by the transferee in order to obtain the transfer right, contains the following provision:

The transferee reimbursed the first purchaser for the deposit (of $35290) and paid the balance due at settlement (of $317610) to the Vendor.

172 Sub-sales Statutory Declarations had also been produced by Sinicorp in respect of Apartments 103 and 106, and similarly provide for a deposit payment to Ren as first purchaser.[62]

173 When taken to these documents, Ren stated that she had not signed them, did not have them, and suggested that they may have been 'manufactured ... for the purpose of obtaining loans'.[63] Ren had earlier stated that she had signed Sub-sales Statutory Declarations in relation to the Nomination Agreements.[64]

174 It is clear enough from the documents already discovered by Ren that in the period January 2008 to December 2012 she had at least two bank accounts, being Ren's CBA Account in Australia and the Bank of Beijing account in her own name in China. Statements relating to the period 3 March 2010 to 21 March 2011 have been discovered for the Bank of Beijing account, and for the period 1 November 2011 to 30 April 2012 for Ren's CBA Account.

175 Ren's explanation as to why prior statements in relation to the Bank of Beijing and CBA Accounts from 2008 to 2010 were not discovered was that the Bank of Beijing and CBA each have a document retention policy requiring the destruction of documents. In CBA's case, this was said to be a seven-year policy. There was no specific timeframe said to apply in the Bank of Beijing case. As will be discussed, Ren's explanation as to why later statements, up to December 2012, were not discovered was incoherent and internally contradictory. At least in respect of Ren's CBA Account, the seven-year document retention period was picked up in one version of Ren's explanation, when it was said that she had only inquired after those records in 2020.

176 There is no evidence that such document retention policies were in place at CBA or Bank of Beijing at the relevant time. There was no reference to such a policy in the affidavits of documents, except for broad allusions to the period of time in which certain transactions are alleged to have occurred which can only tangentially be taken to indicate a view that bank statements over a certain age are generally unavailable. The alleged document retention policy was only raised on cross-examination, and no details were provided as to the Bank of Beijing's policy except that records from 2008 to March 2010 were apparently unavailable.

177 Even if I were to accept that CBA and Bank of Beijing had such document retention policies, the provision of this explanation on cross-examination is highly unsatisfactory. Ren's affidavits of documents do not provide adequate explanation of the application of these policies to the documents required to be discovered, or of Ren's efforts to acquire these documents, as required pursuant to r 29.01.01(3) and r 29.08(2)(b). I am not satisfied that Ren made any genuine or reasonable effort to obtain bank records as required by the Mukhtar Orders and by r 29.03 of the Rules.

178 Moreover, the purported document retention policy provides no basis for Ren to have failed to discover bank records from 2012. Ren suggested that she was unable to discover bank records relating to Ren's CBA Account for the period April 2012 to December 2012 as she had only inquired after these records in 2020, following the expiration of seven years from December 2012. Ren attempted to resile from this statement after it was made clear to her that, by seeking the required records only in 2020, she would have been in breach of the 2019 Mukhtar Orders which required discovery by 15 April 2019. Ren did not give a subsequent adequate explanation as to why later records were not discovered. It follows that even if I were to accept the suggestion that Ren's CBA Account was closed after 30 April 2012, there was no explanation as to why records relating to Ren's account or accounts after 30 April 2012 account were not discovered.

179 Ren admitted the existence of at least one other account in her name which was revealed in CBA Statement No 6. I do not accept that Ren simply 'forgot' to discover records relating to this account, nor would I accept forgetfulness as a valid excuse for non-compliance.

180 The discovered documents to which Ren was taken on cross-examination appear to support the view that some relevant transactions were made from Jiao's account, which is not a joint account in Ren and Jiao's names.

181 It is highly significant that, when the various inconsistencies and inadequacies in Ren's evidence were squarely put to her, Ren gave evidence that she had provided all 'relevant' information and had withheld 'private information' or information that is 'not relevant to the case and is not necessarily needed'. Ren gave evidence that her searches had been confined to documents which assisted her to prove that she had paid for the properties subject to her claims. Ren did not revert to any previously given explanation as to why proper discovery of bank records was not made.

182 These responses, when taken together with the fact that the bank records discovered may correspond directly to the Ren Alleged Apartment Payments and the Trustworthy Loan but no further, suggest that Ren was capable of making further, if not full, discovery of bank records according to the Mukhtar Orders but chose not to do so. There are specific subcategories of documents falling within the categories ordered to be discovered by his Honour which I am satisfied exist and ought to have been discovered. These include records of the account which Ren admitted existed but in relation to which Ren had 'forgotten' to make discovery, and account statements from between April and December 2012.

183 The categories of documents which are proven to exist, but which have not been discovered includes records of payments made by Hai Shan Feng and/or Jiann Gwo Ni in relation to the Nomination Agreements for Apartments 102, 103 and 106. The Sub-sale Statutory Declaration suggests there were payments to Ren of money for the deposit of these Apartments. It is possible that these payments were made through Ren's CBA Account some time between September and November 2011 or through another account in Ren's control. It is therefore telling that bank statements covering this period, which may reveal these transactions which are inconsistent with Ren's claim but consistent with Sinicorp's Counterclaim, have not been discovered. Ren's explanations concerning these payments and documents are unconvincing. By Ren's failure to provide proper discovery, she has denied Sinicorp the opportunity to properly test her case or prove its own.

184 Regarding Ren's CBA Account, I do not accept Ren's explanation as to why CBA Statement No 6 was capable of being discovered, but not statements 1 to 5. It strains credibility that Ren was only able to produce the statement which may support her claim in respect of the Trustworthy Loan, but no more. In the context of statements in Ren's Second, Third, Fourth and Fifth Affidavits of Documents that she had no further documents which were relevant to the proceeding, and particularly the disputation as to the relevance of her sources of funds and receipt of the Trustworthy Loan moneys in Ren's Fifth Affidavit of Documents, I am not prepared to accept Ren's evidence on cross-examination that statements 1 to 5 of the CBA Account were at some time in Ren's possession but are no longer. I also note that Ren did not depose as to the existence of these documents, whether or not they were no longer in her possession, though I do not place undue weight on that.

185 In addition to those identified documents or classes of documents which have not been discovered, Ren's evidence raises the potential for a broader failure to make discovery of documents which, due to the inconsistency and thinness of that evidence, cannot be identified with the same precision. There is a particular risk that, if her evidence about a document retention policy is to be accepted, relevant bank records did exist at the time the proceeding was commenced and at the time of the 2015 Mukhtar Orders, but were destroyed by the time the 2019 Mukhtar Orders were made. In the circumstances I am not satisfied that Ren made full discovery of relevant bank records at that time.

186 Ren's evidence as to her attempts to produce her bank statements shows that her efforts were desultory at best, more likely practically non-existent. Her heavy reliance on the purported document retention policies of the relevant banks smacks of recent invention as an attempt to excuse her failures. Even if her evidence about them is accepted, it is of limited assistance as it merely demonstrates that she may have been able to obtain a number of the bank statements if she had acted promptly and diligently.

Email correspondence between Ren and Hayes - evidence

187 It is clear that Ren engaged in some correspondence with Hayes in relation to the sale and settlement of Apartments in the Development. Correspondence between Ren and Hayes, including instructions, are specifically raised in paragraphs (m) and (n) of Schedule 1 to the 2019 Mukhtar Orders, but are also raised in paragraph (d) of Schedule 1 to the 2015 Mukhtar Orders.

188 Ren's Second Affidavit of Documents states:[65]

...I did send out several emails on behalf of Aili Liu at the Defendant's offices using the Defendant's computer. I am unable to retrieve the emails which I sent or received on behalf of Aili Liu, these emails may still be stored in the computers belonging to the Defendant.

189 Ren's Second Affidavit of Documents does not discover any correspondence between her and Hayes.

190 The affidavit of documents of Chuen Lim, solicitor for Sinicorp, dated 9 March 2015 discovered two printed bundles of emails between Ren and Hayes:

(a) The first is a printout of a chain of emails between Ren and Nicole Farnell, who is evidently an employee of Hayes, between 14 December 2011 and 19 December 2011 with the subject line 'RE: 21 Cambridge St, Box Hill' ('Farnell Emails').

(b) The second is a printout of a chain of emails between Ren and Mr Zita from 13 January 2012 but including an email dated 6 January 2012 apparently forwarded by Mr Zita on 10 January 2012 to Ren. The email of 10 January 2012 from Mr Zita to Ren contains the text 'Copy of email that I sent to Lawrence', followed by Mr Zita's email signature and a stub of the 6 January 2012 email showing that it was sent from Mr Zita's email address on that date. The rest of the 6 January 2012 email is not reproduced in the printout. This chain of emails is under the subject line 'Re: my e-mail address' ('Zita Emails')

Together, these will be described as the Discovered Hayes Emails.

191 The emails are to and from an email address which comprises Ren's name at a general and publicly available domain, and involve Ren providing instructions on the sale of Apartments in the Development. The Discovered Hayes Emails are printouts of emails obtained by Sinicorp, possibly from Hayes' conveyancing file.

192 One email from Ren to Mr Zita in the Zita Emails ends with Chinese characters which were not translated for the Court, followed by the word 'iPad'. Sinicorp submitted that this was the equivalent of the English expression 'sent from my iPad' appearing at the bottom of the email. Ren ultimately accepted in cross-examination, after this particular email and the proposition that it said 'sent from my iPad', that some emails may have been sent using an iPad rather than a desktop computer or laptop, and that the iPad belonged to Liu.[66]

193 Ren's Third Affidavit of Documents deposes to these same emails being in Ren's possession, custody or control.

194 No further correspondence between Ren and Hayes is discovered in Ren's Fourth, Fifth or Sixth Affidavits of Documents. Those affidavits proffer the explanation that Ren assisted Liu in the preparation and receipt of a few emails only, and state that Ren does not have any records of correspondence between her and Hayes save for those already produced by Sinicorp.

195 At cross-examination, Ren was taken to statements in her Fifth and Sixth Affidavits of Documents deposing to further searches for correspondence between her and Hayes, and was asked what further searches she had undertaken. Ren indicated that she had searched the internet for her email address and sought to recover the password for the email address used.[67] When asked whether Ren had previously been unable to discover emails because she did not have the password to the email address, Ren returned to the position previously stated, that the emails were stored on Sinicorp or Liu's computer.[68]

196 Ren also said on cross-examination that the email address used for this correspondence was established specifically to undertake communications on behalf of Liu and Sinicorp, and that it is not her personal email address.[69]

197 It was put to Ren that the existence and contents of the emails already discovered suggest the existence of other, prior emails between Ren and Hayes. In particular, the familiarity between Ren and Ms Farnell and the subject matter dealt with in the emails was said to indicate that the email of 14 December 2011 was not the first email between Ren and Ms Farnell, or Ren and Hayes generally. Ren explained that she had attended Hayes' office in person with Liu prior to these emails.[70]

Consideration of email correspondence between Ren and Hayes

198 Ren provides a number of reasons why she was unable to discover any correspondence between her and Hayes beyond the Discovered Hayes Emails which, when considered in isolation, could be seen as reasonable. It is certainly possible that Ren believed that emails were stored on the computer they had been typed on, and that all relevant emails had been typed on a computer in the possession of Sinicorp, prior to Sinicorp disabusing her of this position. Ren may have forgotten that an email she sent in 2011 was sent on an iPad, rather than on a computer. It is also possible that, following Sinicorp's correction of her assumption as to the storage of emails, Ren attempted to access the email server on which the emails were stored.

199 It is relevant that Ren admitted in Ren's Second Affidavit of Documents to 'some' correspondence between her and Hayes, but said that she was unable to access it. It is not the case that Ren denied the existence of any correspondence until it was produced by Sinicorp.

200 Similarly I do not take the inclusion of the Discovered Hayes Emails in Ren's Third Affidavit of Documents to mean that the Discovered Hayes Emails were necessarily in Ren's custody, possession or control prior to their production by Sinicorp. It is likely that Ren included these documents in Ren's Third Affidavit of Documents on the basis that they had been produced by Sinicorp and for that reason were in her possession.

201 However, taken together and in light of the context in which they are given, Ren's reasons for not discovering further correspondence between herself and Hayes are not convincing. In particular, I can have no confidence in Ren's assertions following the production by Sinicorp of the Discovered Hayes Emails that they are the only emails passing between Ren and Hayes. Further, I have no confidence that Ren has undertaken a reasonable and genuine search for any further correspondence.

202 Ren's reliance on poor memory when pressed on particular aspects of the correspondence, including how and where it was conducted, and her evidence that she was merely a 'conduit' for this correspondence and was not intimately involved in the underlying transactions, seriously undermines the certainty with which Ren insists that there is no further correspondence other than the Discovered Hayes Documents. Ren placed great emphasis on this role as a conduit for Liu and appeared to suggest that it meant she was not required to discover the emails. This is indicative of Ren's attempts to excuse her failure to discover emails.

203 Ren's maintenance of her claims that any correspondence was inaccessible to her, whether because emails were stored on Sinicorp or Liu's computer or because she did not have the password to access the email server, similarly undermines the certainty of Ren's assertions that there is no further correspondence. It appears that Ren no longer believed that the emails were stored on a particular computer to which Ren did not have access by the time Ren's Fifth Affidavit of Documents was made. However, Ren's evidence does not disclose whether she was unable to access the server and for that reason has not discovered any new emails, or whether she was able to access the server and did not find any new emails there. This failure to outline the process and the results of the search are themselves a failure to abide by discovery obligations, but are also far too vague to provide support to Ren's assertion that there is no further correspondence, or that Ren has no further correspondence in her possession, custody or control.

204 Ren also says nothing about the whereabouts of the iPad from which the email in the Zita Emails was sent, or whether it is now available to her, in her Fifth or Sixth Affidavits of Documents. By the time these affidavits were made it ought to have been clear to Ren that she was mistaken that all relevant emails had been sent using Sinicorp's or Liu's computer.

205 I am not persuaded that Ren does or did not have access to the email address used by her in the Discovered Hayes Emails on the basis that the email address was set up solely to conduct correspondence on behalf of Liu, such that it is not a personal email address. The email address is in Ren's own name at a general and publicly available domain. There was no further evidence about whether Ren has other email addresses, and no evidence other than Ren's assertion that it was set up for the purpose of assisting Liu. I do not accept this to be the case, as it seems to me unlikely that any email address set up for this purpose would have no reference to Liu or Sinicorp, and would instead reflect the conventions of a personal email address.

206 I accept Sinicorp's submission that the content and nature of the Discovered Hayes Emails is indicative of correspondence having taken place prior to those emails. The Zita Emails clearly include a copy of correspondence between Mr Zita and 'Lawrence' which is forwarded to Ren or otherwise included in the chain of emails. However, the subject line of a forwarded email is commonly prefaced 'FWD' when it forms the initial email in a chain, while the Zita Emails contain the subject line 'Re: my e-mail address'. It would appear that the Zita Emails have their origin in an email of an uncertain date with the subject line 'my e-mail address'. The brevity of and apparent familiarity between the interlocutors in the Zita Emails and the Farnell Emails, combined with the fact that they appear to deal with transactions already underway, adds weight to the conclusion that was some prior correspondence between Ren and Hayes. The fact that Hayes acted as solicitor for Sinicorp as vendor in the transactions between Ren and Sinicorp for the sale or nomination of the Apartments in 2010 and earlier in 2011 further suggests prior correspondence, though this issue is dealt with more fulsomely below.

207 I am not inclined to put undue weight on the matters set out at paragraphs 205 and 206, as the discussion of that evidence relies to a certain extent on conjecture as to Ren's likely conduct in the circumstances. However, taken together and in the light of all of the evidence, it is sufficiently clear that there would be correspondence between Ren and Hayes other than the Discovered Hayes Emails, and that Ren has not undertaken reasonable and genuine efforts to discover this correspondence. It is also clear that Ren has sought to evade discovery of this correspondence under cover of an insistence that there is no further correspondence in circumstances where her certainty on that point, and her efforts to verify it, are not to be believed.

208 Further, it is not as if Ren has discovered other emails relating to the subject matter of the proceedings which are not correspondence with Hayes. She has not. It is simply not known whether other emails exist or may have existed, but it certainly appears that Ren has confined her evidence (whether in her affidavits or given orally) about emails to those which have been shown to exist through means other than her making discovery.

Documents relating to the sale, nomination, cancellation, settlement or transfer of Apartments in the Development - evidence

209 Paragraph 1(b) of the 2015 Mukhtar Orders and paragraph (f) of Schedule 1 to the 2019 Mukhtar Orders are in the same form, and require discovery of:

any correspondence or documents leading up to the making of the -

1. contracts of sale alleged in paragraphs 19 and 33 of the statement of claim;
2. nomination for apartment 104 alleged in paragraph 22;
3. nomination for apartment 105 alleged in paragraph 25;
4. nomination for apartments 102, 103 and 106 alleged in paragraph 28; and
5. rescission of the nomination agreement for apartment 104 alleged in paragraph 30 -

and, without limiting the generality of that description, any correspondence with solicitors, conveyancers, estate agents or banks concerning the sale, purchase, nomination, rescission of the contract of sale of each of the apartments referred to in those paragraphs of the statement of claim;

210 Further, paragraph (d) of Schedule 1 to the 2019 Mukhtar Orders requires discovery of:

All documents including nominations, statutory declarations, duties forms, transfer of land and other documents relating to the sale, nomination, cancellation and settlement relating to the purchase, sale or transfer of apartments at 21 Cambridge Street, Box Hill by the First Plaintiff or her nominee.

211 Ren's First Affidavit of Documents makes discovery of the Contracts of Sale themselves, and Sale of Real Estate Nomination forms, in respect of the relevant properties. It was on this basis that Mukhtar AsJ's comments in the 'Other Matters' to the 2015 Mukhtar Orders, that there was 'justified' concern that Ren's discovery 'seemed to be limited to the contracts of sale on which they have sued the defendants for specific performance, but not much else'. His Honour's comments concerning the kinds of documents one might expect to see in the trail of the Contracts of Sale, and his Honour's orders for discovery of those documents, were made in this context.

212 Ren's Second, Third and Fourth Affidavits of Documents discover a number of documents relating to the Development, the majority of which post-date the Contracts of Sale and the Nomination Agreements. For example, the Discovered Hayes Emails discussed above cover the period December 2011 to January 2012, whereas the Nomination Agreements were entered into in or about July and October 2011. It is not clear on the face of these affidavits of documents whether any documents meeting the description of paragraph 1(b) of the 2015 Mukhtar Orders were discovered.

213 Ren seeks to explain this in her Second Affidavit of Documents. Ren deposes that there was no correspondence, and there are no other documents, leading up to the making of the Contracts of Sale or Nomination Agreements, or rescission of those nominations, because Ren did not engage solicitors until about May 2012. Ren says that, from about March 2009 until that time, she dealt directly with Liu by phone or in face-to-face discussions.[71]

214 Ren's Fifth Affidavit of Documents repeats this explanation, and deposes to a further search for documents within this category which produced no further documents.[72] Ren's Fifth Affidavit also says that the Contracts of Sale, the attached vendor's statements as required by s 32(1) of the Sale of Land Act 1962 (Vic), and the 'blanks' were prepared by Hayes on behalf of Sinicorp.[73] Ren deposed that she had undertaken searches for these documents and had also asked Liu to provide documents.[74]

215 Ren said that she had the originals of the Contracts of Sale, but not copies, and had no copies of any other documents.[75] Ren also agreed that there were Sub-sales Statutory Declarations, and likely other documents including rescission of nomination forms, which were signed but which were kept by Hayes in the original, and of which Ren did not receive a copy.[76] Counsel for Sinicorp suggested that it was 'incredible' that Ren as purchaser and transferor of property would not have received copies of these documents, to which Ren stated that Hayes had prepared the documents 'under the instruction of ... Liu'.[77]

216 On cross-examination Ren said that she had not received any correspondence from Hayes in relation to the Contracts of Sale or Nomination Agreements because these documents were 'delivered by hand' and, once signed, sent back to Hayes.[78] However, Ren subsequently said that documents including the Sub-sales Statutory Declarations were signed at Hayes' office.[79]

217 The Sub-sales Statutory Declarations discussed at paragraphs 169 to 173 above are also relevant as documents prepared in the lead-up to or in relation to the Nomination Agreements for Apartments 102, 103 and 106. As noted, Ren admitted that she signed a Sub-sale Statutory Declaration, but then denied signing the particular Sub-sales Statutory Declarations which were in evidence and suggested that she did not have a copy. It was said from the Bar table that the Sub-sales Statutory Declarations in Sinicorp's possession had been produced on subpoena issued to the solicitor for Hai Shan Feng and Jiann Gw[80]Ni, and were unsigned.80

Consideration of Documents relating to the sale, nomination, cancellation, settlement or transfer of Apartments in the Development

218 Ren says that she has discovered all documents in this category in her possession, custody and control, and that a wide range of other documents and correspondence one might expect to see in the course of purchasing, nomination, settlement and transfer of real estate in Victoria were withheld from her or not retained by her. The question at the heart of my assessment of Ren's discovery in this category is whether I accept this account.

219 I will first mention that it is clear enough that there were Contracts of Sale and Nomination Agreements drawn up along with the documents which would usually accompany them, and that there was at least an attempted settlement and transfer of each relevant Apartment.

220 I accept Sinicorp's submission that in the normal course of events a vendor, by their solicitor or other agent, will provide copies of all relevant documents to a purchaser including the Contract of Sale and accompanying vendor statement, and ultimately the certificate of title. Similarly, I accept that in the course of a nomination by one purchaser of land for another purchaser, Sub-sales Statutory Declarations as well as the Nomination Agreements would be provided at least in executed duplicate form to all relevant persons. These documents and their administration, including arrangements for execution, settlement, and the provision of documents to all relevant persons, would typically occur by way of covering email or letter, and these emails or letters are also discoverable.

221 It appears to be the case that Ren was provided with a number of documents for execution but was not provided with, or did not retain, copies. These include copies of the Sub-sales Statutory Declaration, and possibly the form for rescission of a nomination. There is a distinct lack of clarity in Ren's account of relevant documents, especially as it relates to what documents were in fact drawn and executed, and in what circumstances they were provided to Ren. It is unclear whether some documents, such as the Contracts of Sale, were delivered to Ren by hand and then returned, presumably also by hand, while other documents such as the Sub-sales Statutory Declaration were executed at Hayes' offices. It is also unclear whether there is a real discrepancy between these two explanations concerning the absence of correspondence leading up to these documents, or copies in Ren's possession.

222 Even if I were to accept that the usual covering correspondence did not take place in this context as arrangements were being made between Ren and Liu either face-to-face or by telephone, it is not immediately clear why Ren did not receive from Hayes copies of the documents relevant to the sale, nomination, settlement or transfer of the Apartments or any cancellation or rescission which may have occurred. Ren did not explain why the fact that she had not retained her own solicitors to conduct the sale, nomination, settlement or transfer means that copies of documents would not be provided directly to her, as purchaser and party to the Nomination Agreements, by Hayes as solicitor for the vendor.

223 I have already found, at paragraphs 206 to 207 above, that there is likely to be email correspondence between Ren and Hayes which predates the Discovered Hayes Emails, and that this correspondence is likely to have dealt with the sale or nomination for sale of the Apartments. This is of course distinct from any correspondence which may have occurred between Ren in her capacity as purchaser or party to a Nomination Agreement, and Hayes in its capacity as vendor in the same transactions, though I am not entirely persuaded that there was such a clear separation between Ren's correspondence in aid of Liu and her personal means of correspondence. In any event, in the context of correspondence leading up to the purchase or nomination of the Apartments by Ren there is little more than an indication that Ren had an email address to correspond with Hayes in relation to the sale of Apartments at another time.

224 I accept that it is highly unusual for a purchaser not to receive copies of relevant documents related to a transaction for the sale or nomination for sale of real estate, or to receive or send no written correspondence in relation to those transactions. On the basis of the evidence before me and at this stage of the proceeding, I have formed the view that this conduct is highly unusual. However, I am not inclined to comment any further on the relationships between Ren, Liu, Hayes and Sinicorp, except to say that it is apparent that the transactions related to the Apartments took place in a context which was quite different to a typical property sale between strangers conducted through solicitors or agents.

225 It is Ren's case that these were ordinary transactions for the sale of the relevant Apartments. That being so, it is all the more unlikely that copies of key documents were not retained by her or given to her. When faced with such a proposition, her response has been to refer to what can only be described as highly unusual conveyancing practices as a justification for her not having most, if not all, of the documents in question. Importantly, documents such as the Sub-sales Statutory Declarations are ones which may not be helpful to Ren's case and have not been discovered by her. I do not accept her evidence that she did not have or was not given copies of these documents, which were apparently signed by her.

226 I am not satisfied that Ren has complied with her discovery obligations in respect of this category. The category is relevant to both Ren's claim and to the Counterclaim.

Documents relating to the Trustworthy Loan and Zita Loan - evidence

227 Paragraph (k) of Schedule 1 to the 2019 Mukhtar Orders requires Ren to make discovery of 'full records' in relation to the Trustworthy Loan. 'Full records' includes but is not limited to correspondence, agreements and bank records, and develops upon paragraph 1(e) of the 2015 Mukhtar Orders which required discovery of bank statements evidencing receipt of the Trustworthy Loan.

228 Paragraph (l) of Schedule 1 to the 2019 Mukhtar Orders similarly requires Ren to make discovery of 'full records' in relation to the Zita Loan.

229 Both the Trustworthy Loan and the Zita Loan are pleaded by Sinicorp by way of Counterclaim.

230 The Trustworthy Loan is pleaded to have been paid to Ren from Hayes' trust account in two tranches in December 2011, and particularised by Sinicorp by reference to a loan agreement between Sinicorp and Trustworthy Nominees Pty Ltd and cheques in Sinicorp's possession.

231 The Zita Loan pleading is particularised by reference to a letter from Hayes to the Legal Services Board dated 20 August 2014 ('LSB Letter') whereby Hayes states that Mr Zita paid the Zita Loan personally by bank transfer to Ren in two tranches.

232 The Reply and Defence to Counterclaim pleads that Ren received the Trustworthy Loan in order to repay a loan taken out by Liu from Zhaorong Fan and Ziaomei Lin. This is particularised by reference to an acknowledgment of debt dated 29 October 2011, which is discovered in Ren's Fourth Affidavit of Documents ('Acknowledgment of Debt'). The Reply and Defence to Counterclaim pleads that Ren received the Zita Loan on behalf of Liu some time between 8 December 2011 and 25 April 2012, and that the Zita Loan was repaid by Liu. This is particularised by reference to the same documents referred to by Sinicorp, including the LSB Letter and the documents relevant to the Trustworthy Loan.

233 Ren's Second Affidavit of Documents discovers a copy of an authority signed by Liu, for Hayes to direct loan money to Ren, dated 23 April 2012 ('Liu Authority'). This was referred to in the course of Ren's cross-examination and appears to relate only to Trustworthy Loan money. Ren's Second Affidavit of Documents also discovers copies of statements of Hayes' trust accounts which include references to the Trustworthy Loan and Zita Loan amounts.

234 Ren's Fifth Affidavit of Documents makes no relevant discovery and says that her involvement in the Trustworthy Loan and Zita Loan have 'no material relevance to the central issues in dispute.'[81] Ren's Sixth Affidavit of Documents deposes to a further search and states that Ren has no documents relevant to these categories.[82]

235 Despite Ren's pleading, on cross-examination Ren initially denied receiving the Zita Loan.[83] When taken to the LSB Letter, Ren stated that she could not be sure and would need to check her bank statements.[84] Counsel for Sinicorp queried how Ren witnessed or became aware of the Liu Authority or collected the cheques from Hayes for the Trustworthy Loan, to which Ren responded that she had received no correspondence or documentation in relation to the Trustworthy Loan or the Zita Loan as she was merely an intermediary.[85]

Consideration of documents relating to the Trustworthy Loan and the Zita Loan

236 Ren makes some discovery in relation to the Trustworthy Loan in Ren's Second Affidavit of Documents, though it is not entirely clear whether the Liu Authority or Hayes' statements of account were in fact discovered by Sinicorp in 2014.[86] It is clear enough that Ren's discovery of the LSB Letter, and other documents such as the Discovered Hayes Emails, occurred after those documents were already produced by Sinicorp. This makes assessing the adequacy of Ren's discovery somewhat more difficult. It does not appear to be in dispute that Ren discovered the Acknowledgment of Debt, which is discussed at paragraph 232.

237 It is not clear that there has been any discovery by Ren in relation to the Zita Loan.

238 On the balance of probabilities, I consider that there are likely to be documents concerning the Trustworthy Loan and Zita Loan which Ren has, or has had, in her possession and which she has failed to discover. This finding is informed by three factors. The first is my general assessment of Ren's credibility, which comes to bear on this category in respect of Ren's inconsistent and evasive responses to questions. The second is Ren's contestation of the relevance of the documents as they concern her involvement in the Trustworthy Loan and Zita Loan. However, the third and most significant factor is the evidence of correspondence between Hayes and Ren, apparently on behalf of Liu, concerning the Apartment sales, and my earlier findings that there is more such correspondence than the Hayes Discovered Emails. Whether or not Ren corresponded with Hayes by email in her own capacity as a 'shadow' director of Sinicorp, or merely as an assistant to Liu, it is not at all clear why that correspondence would relate solely to the Apartment sales, and would not include correspondence concerning loans made or facilitated by Hayes and/or Mr Zita.

239 Taken alone, I would not put much weight on the first and second factors. When viewed in conjunction with each other, however, these three factors strongly suggest that there is at least some correspondence between Ren and Hayes concerning the Trustworthy Loan and the Zita Loan which has not been discovered. I am also satisfied that there are bank records concerning the Zita Loan payment into an account in Ren's name which have not been discovered.

240 It is less clear whether there are other documents, including agreements and correspondence between Ren and Liu, which exist and ought to have been discovered. Given the paucity of Ren's discovery and the parsimonious approach she adopted with respect to her discovery obligations, I can only infer that there may well be further documents of this kind.

Conclusion - Ren has failed to comply with her discovery obligations and orders related to discovery, and she has engaged in conduct intended to delay, frustrate or avoid discovery of discoverable documents

241 I am satisfied that Ren has failed to comply with discovery orders and her discovery obligations. Those failures are numerous and are set out above in painstaking detail.

242 There are a number of discoverable documents which I am satisfied exist and are, or at the time they ought to have been discovered existed and were, in Ren's possession, custody or control, which I consider Ren has deliberately not discovered. This includes bank records in relation to the account which Ren had 'forgotten'; records of any bank account, including the CBA Account or Bank of Beijing Account between April and December 2012; and bank records relating to the payments made by Hai Shan Feng and/or Jiann Gwo Ni in relation to the Nomination Agreements. They also include further correspondence between Ren and Hayes concerning the sale, nomination and transfer of the Apartments, and concerning the Trustworthy Loan and the Zita Loan, other than the Discovered Hayes Emails.

243 There is also a further class of documents in respect of which it is less clear whether they can be said to exist. This class of documents may be said to include correspondence and other documentation concerning Ren's purchase and nomination of Apartments 102 to 108. However, on balance I think it more likely than not that such documents do exist and that Ren has failed to discover them or take reasonable steps to discover them.

244 Further, I am satisfied that Ren has engaged in conduct intended to delay, frustrate or avoid discovery of discoverable documents. In particular, Ren's Fifth Affidavit of Documents and her approach to discovery, as outlined above, are disingenuous at best and are not to be believed. Ren's approach has been to delay and obfuscate; to make excuses which do not stand up to scrutiny and when exposed as such to offer an equally implausible excuse; to dissemble and purport to not understand what is being put to her in cross-examination or to not remember when those excuses do not bite; and to generally avoid discovering documents that she does not consider helpful to her case.

Is it appropriate to strike out Ren's claim or defence to counterclaim, in whole or in part?

245 Having found pursuant to s 56(1) of the CPA that Ren has failed to comply with discovery orders and her discovery obligations, along with engaging in conduct intended to delay frustrate or avoid discovering documents which are discoverable, it remains to consider what action the Court should take in the face of Ren's conduct and failures.

246 Section 56(2) of the CPA sets out, in an inclusive rather than exhaustive way, the sorts of orders the Court may make when considering what sanctions or orders it should impose. In its submissions, Sinicorp went through each of the orders set out therein and addressed why it considered that s 56(2)(j), being the power to dismiss any part of the claim or defence of a party who is responsible for the conduct proscribed by s 56(1), was applicable. I agree with Sinicorp's submission that most of the types of orders referred to in s 56(2) are either not applicable or desirable here.

247 Caution needs to be taken to ensure that, in exercising its powers under s 56 of the CPA, the Court considers what is appropriate in the circumstances of the case, having regard to the conduct of the relevant parties, and what is consistent with the overarching purpose of the CPA. In exercising its powers, the Court must seek to give effect to the overarching purpose in respect of civil proceedings: to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[87]

248 In doing so, the Court is to have regard to the following objects:[88]

(a) the just determination of the civil proceeding;

(b) the public interest in the early settlement of disputes by agreement between parties;

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for -

(i) the fair and just determination of the real issues in dispute; and

(ii) the preparation of the case for trial;

(f) the timely determination of the civil proceeding;

(g) dealing with a civil proceeding in a manner proportionate to -

(i) the complexity or importance of the issues in dispute; and

(ii) the amount in dispute.

249 The following matters are to be taken into account in this regard:[89]

(a) the extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;

(b) the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;

(c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;

(d) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;

(e) the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;

(f) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;

(g) the public importance of the issues in dispute and the desirability of a judicial determination of those issues;

(h) the extent to which the parties have had the benefit of legal advice and representation.

250 It is fair to say that Ren's approach to her discovery obligations and the orders of this Court has been the very antithesis of efficiency, timeliness and cost-effectiveness. Her conduct has been productive of excessive delay, and as a result Sinicorp has been put to considerable expense so as to try and achieve proper discovery from her. Ren has not complied with an important interlocutory procedure of this Court and her failure to do so has caused delay to the other parties to the proceeding, has required judicial intervention on numerous occasions, and has prejudiced Sinicorp in the conduct of its case. She has been represented throughout the proceeding and, as noted previously, I can only assume that she has been properly advised of her discovery obligations as well as her overarching obligations under the CPA. She has virtually ignored these.

251 I will turn now to the specific question of whether Ren's claim and defence to counterclaim should be struck out as a consequence of her conduct.

252 In doing so, I am mindful of the matters set out in the preceding paragraphs regarding the CPA and also to the factors referred to by Vickery J in Hodgson v Amcor.[90] Addressing each of the factors from Hodgson v Amcor in turn, with the same order and numbering:

(a) Ren's contravening conduct has had a profound effect on the just resolution of the issues in the proceeding in an efficient, timely and cost-effective manner. The proceeding was issued in 2014. Even with some of the early period of the proceeding being taken up with pleading issues and the joinder of parties, extracting Ren's discovery and the litany of discovery disputes has taken several years. The proceeding is still some distance away from being ready for trial, which trial is likely to be irreparably impaired by Ren's conduct;

(b) the delay has been inordinate and inexcusable. Further, it is not as if the only problem now is the delay: more importantly, there has still not been proper compliance with Ren's discovery obligations and the Court's orders;

(c) Ren's history of non-compliance, in particular her belligerent and argumentative attitude to her discovery obligations, is indicative of her unwillingness to co-operate with the Court and the other parties, particularly Sinicorp. That she may now be unable to fully co-operate, for example, if bank statements are no longer available from banks due to the passage of time, is a product of her own making;

(d) the non-compliance is continuing. It has occasioned unnecessary delay and expense to the other party, and it will continue to occasion prejudice to Sinicorp arising from the inadequate discovery;

(e) the above analysis of the failures to provide proper discovery in respect of particular classes of documents demonstrates the prejudice to Sinicorp in its defence of Ren's claim and its prosecution of its own counterclaim, that prejudice being unfairness to Sinicorp in the trial of the proceedings;

(f) the various discovery disputes have taken considerable judicial resources. The application to cross-examine the Plaintiffs, the conduct of the cross‑examinations and the hearing of this application alone have taken at least four days of hearing time plus substantial time in considering this application and preparing these reasons, which ought to be self-evident;

(g) Ren's explanations for her conduct in respect of discovery lack veracity and reasonableness, and simply do not stand up to scrutiny. As noted above, she has been evasive, has offered one implausible explanation after another, and has then resorted to memory failure when her explanations have been exposed as bogus;

(h) the evidence points towards Ren's contravening conduct as being intentional. As already noted, she has been represented throughout the proceeding and there is no reason to think that she has not been properly advised by her solicitors;

(i) I do not consider that an alternative remedy by way of a lesser but equally efficient sanction is available. I have given considerable thought to whether, for example, the drawing of adverse inferences where documentary material is not available would be a remedy of a lesser but equally efficient sanction. In this instance, I do not think it would be. Ren's defaults in discovery are wide‑ranging and are potentially quite harmful to Sinicorp's prosecution of its counterclaim. It is difficult to identify now, at this stage of the proceeding, precisely what inferences should be drawn. The defaults in discovery potentially affect every aspect of Ren's claim and defence to counterclaim, such that the real state of affairs is left to the imagination, which is not a proper basis for inferences to be drawn. On the other hand, the Court should be astute not to draw too narrow an inference on the basis of the evidence as it currently stands. In any event it is inappropriate at this stage to conduct a full analysis of that evidence as if it represented the total body of evidence in the case, as the problem faced by Sinicorp and the Court is precisely that it does not have that evidence. It would also be productive of unfairness for the proceeding to progress through the remaining pre-trial processes and to trial to await identification of such inferences. I have also considered whether a lesser remedy, such as striking out only part of Ren's claim, or part of her defence to Counterclaim, would be sufficient. The contraventions, both in seriousness and in content, tare such that this is not an appropriate alternative remedy; and for similar reasons to those stated above in respect of the drawing of inferences, it is inappropriate to attempt to confine the effects of Ren's defaults of discovery to a particular aspect of Ren's claims or defence to counterclaim. Other orders which could be made, such as orders for costs, compensation, or referral to a disciplinary authority or proceedings for contempt of court, would not address the prejudice to Sinicorp arising from Ren's conduct. Ren's wide-ranging and intentional non-compliance with discovery obligations infects every aspect of her claims and defence to counterclaim, such that dismissal of those claims and the defence is the only appropriate response;

(j) there is at least a real risk, more likely a real certainty, that Ren's contravening conduct would render or has rendered it impossible to conduct a fair trial of Ren's claims and Sinicorp's counterclaim. Either evidence which ought be available will not be, or there can be no confidence that the lack of such evidence is due to the fact of it never having existed rather than to it not having been discovered. This represents real and irremediable prejudice to Sinicorp; and

(k) the object of the order which has been contravened, being proper discovery, has not been secured by other means. This distinguishes the situation here from that which obtained in Cowell, for example.

253 Ren does not accept that she has engaged in conduct of the type proscribed by s 56(1) of the CPA. Indeed, she maintains, in forceful terms through the written outlines filed on her behalf, that she has fully complied with her discovery obligations and the orders of this Court. That is disingenuous and clearly not the case.

254 Accordingly, Ren's claim and her defence to counterclaim should be dismissed, in whole.

Has Pan failed to comply with her discovery obligations or orders related to discovery, or engaged in conduct intended to delay, frustrate or avoid discovery of discoverable documents?

256 Pan's First Affidavit of Documents was made on 18 November 2014. Pan's Second Affidavit of Documents was made on 4 March 2015 following and pursuant to the 2015 Mukhtar Orders. Pan's Third Affidavit of Documents was made on 11 February 2021, following and pursuant to the 2019 Mukhtar Orders.

257 It is submitted on behalf of Pan that she 'is only obliged to discover documents that are relevant to the real central issues in dispute'. Such a submission is not to be accepted. As with Ren, she was obliged to make general discovery and then particular discovery as per the Mukhtar Orders. That discovery is not confined in the manner submitted.

258 Pan's Third Affidavit of Documents offers a blanket denial that Pan has, or has ever had, any of the documents listed in Schedule 2 to the 2019 Mukhtar Orders in her possession, custody or control. The affidavit offers no explanation for this, nor does it shed light on the searches undertaken to confirm this. An explanation was not given until the hearing of the Summons on 10 August 2021, where the Plaintiffs submitted that Pan's Third Affidavit of Documents was prepared with reference to Schedule 2 to the 2019 Mukhtar Orders, which referred to the Third Plaintiff rather than Pan, and to documents relevant to the Third Plaintiff rather than Pan. The Plaintiffs submitted that Pan and her solicitor, Mr Lim, were aware of the error when making the affidavit but nonetheless considered themselves obliged to respond directly to the erroneous Schedule 2. Such a position is extraordinary, and is contrary to the overarching obligations in the CPA.

259 In submissions, Mr Lim said that he became aware of the error in Schedule 2 when he was preparing Pan's Third Affidavit of Documents and he discussed it with her then. Given that the 2019 Mukhtar Orders were made by consent and required discovery by 16 April 2019 (which deadline was later extended to 10 March 2020), in reality Pan ought to have been aware of the error much earlier than this. Nevertheless Pan failed to bring the error to the attention of the defendants or the Court, or to include any indication of the error in Pan's Third Affidavit of Documents or on cross-examination. It is telling that Pan did not offer this explanation herself when being cross-examined.

260 Pan and her solicitor may have considered Pan's Third Affidavit of Documents to be a clever response to the error in the 2019 Mukhtar Orders. However, I consider the approach taken to Pan's Third Affidavit of Documents is evidence in itself that Pan has engaged in conduct intended to delay, frustrate or avoid discovery. The affidavit not only fails to respond to what was clearly the correct schedule to the 2016 Summons which ought to have been attached to the 2019 Mukhtar Orders, but more importantly fails to respond in any way to Pan's general and overarching obligations to make discovery notwithstanding the orders.

261 Not only is Pan's approach regarding this affidavit evidence of conduct intended to delay, frustrate or avoid discovery, Pan's Third Affidavit of Documents represents a failure to properly comply with the 2019 Mukhtar Orders and her discovery obligations.

262 Paragraph 2(a) of the 2015 Mukhtar Orders required Pan to make discovery of bank records showing the debiting of funds by which Pan procured the money for the Pan Alleged Apartment Payments. These payments are alleged to have been made between December 2009 and January 2010 to Liu's Westpac account, and between March 2010 and July 2010 to accounts in the name of Yang and LWY.

263 Pan's First Affidavit of Documents discovered a variety of transaction records relating to the Pan Alleged Apartment Payments as well as records of a bank account in Liu's name relating to payments alleged to have been made by Liu towards the purchase of Apartment 101. Pan explained that she obtained Liu's bank records on the basis of her understanding that they may be relevant to the case, and that she was obliged to make discovery of documents relevant to the case.[91] Pan's First Affidavit of Documents was produced prior to the 2015 Mukhtar Orders.

264 Pan's Second Affidavit of Documents does not discover any further bank records relating to the Pan Alleged Apartment Payments. When asked about this failure on cross-examination, Pan relied on a document retention policy said to be in place at the Australia and New Zealand Banking Group Limited ('ANZ') at the relevant time whereby records would be destroyed after five or seven years.[92] However, Pan was evasive as to whether she had actually made inquiries with ANZ for those records.[93] Further, Pan deposed that she 'didn't worry about the previous records at all' because her concern was whether money had been received,[94] and that she thought it would be sufficient just to provide transaction records of the Pan Alleged Apartment Payments.[95]

265 When asked about the source of money used to make deposits into Liu's account in December 2009 and January 2010, Pan suggested that they had come from Liu herself.[96] Subsequently, Pan could not remember where the money had come from.[97] When it was put to Pan that she did know where this money had come from, and was deliberately avoiding discovery in relation to this, Pan replied that 'if [Sinicorp] can provide evidence, then [the Plaintiffs] can provide it.'[98]

266 Pan also said that she had obtained the money to make one of the Pan Alleged Apartment Payments to LWY in April 2010 from her father.[99] Pan said that she didn't provide details as to a payment from her father but would do so 'if the court requires'.[100]

267 It was said by Pan that another of the Pan Alleged Apartment Payments, in March 2010, was made directly to LWY by her aunt.[101] Pan was asked whether she had asked her aunt for a bank statement, to which she responded that she had provided all that she could provide.[102] Pan's manner of giving evidence at her cross-examination, on this issue and on many others, was to avoid answering questions directly. After she gave this answer, I interjected and said that Pan had not answered the question asked of her, and I asked it again. Her response was that she provided the transaction record of payment by her aunt to LWY and at the time she did not believe a bank statement would be important.[103]

268 Although Pan stated that she understood she had to provide all documents which she had and not just those which helped her case,[104] I formed the view that in saying this she was stating what she thought she had to say and was paying lip service to her discovery obligations. This was because her answers in response to other questions revealed that she had a different approach to discovery. For example, after she had given the two non-responsive answers described in the previous paragraph, Pan was asked whether she had talked to her lawyer about what steps she should take about fulfilling the 2015 Mukhtar Orders.[105] Pan's response was as follows:[106]

He was quite sure at the time that this sum, the RMB 460,000, and the sum below, which is the $150,000 - you know, we're both quite sure so that no further - you know, it was discussed that no further documents would need to be required apart from what have been provided.

269 It is readily apparent from Pan's answers to Sinicorp's line of inquiry about her bank records that Pan's focus was on documents to prove her version of a transaction, rather than on discovering documents relevant to the issue.

270 Pan's Third Affidavit of Documents provides no further documents or information.

271 I do not accept any of the explanations or excuses given by Pan for failing to comply with the 2015 Mukhtar Orders as they concern bank records.

272 Pan's evidence on cross-examination that, in her view, it would be sufficient to provide transaction records only and that she did not worry about previous bank records, bespeaks a total disregard of the 2015 Mukhtar Orders. Even if I were to view this evidence as going to Pan's approach to Pan's First Affidavit of Documents only, Pan has provided no explanation as to why Pan's Second Affidavit of Documents did not correct these errors. This approach is consistent with the view that Pan discovered only those documents which she considered relevant to support her case.

273 I am not satisfied that Pan sought any bank records from ANZ beyond those discovered in Pan's First Affidavit of Documents. Pan was unacceptably vague as to what inquiries, if any, she undertook to obtain documents from ANZ and whether the alleged document retention period at ANZ was for five or seven years. Clearly, at the time Pan's Second Affidavit of Documents was prepared in February and early March 2015, Pan could have obtained all relevant documents from ANZ under a seven-year document retention period; and could have obtained at least those documents relating to the payments made to Yang and LWY between March and July 2010 under a five‑year period. The fact that Pan discovered none of these documents, and was not able to specify what the supposed document retention policy was which barred her from discovering documents, makes clear that Pan made no real effort to obtain bank records from ANZ as required by the 2015 Mukhtar Orders.

274 It is also clear that Pan did not make any effort to obtain documents from the relatives from whom she says the money to make the Pan Alleged Apartment Payments was provided, other than Liu. Pan admitted as much, and at this stage it is no answer to say that documents will be provided 'if the court requires'. The Court did require that discovery in 2015, as was clearly stated in the 2015 Mukhtar Orders, and if such documents were in her control (if not her possession) then these were required to be discovered.

275 More than this, Pan sought to challenge Sinicorp's entitlement to proper discovery by suggesting that she could discover evidence of the source of money for the Pan Alleged Apartment Payments in December 2009 and December 2010 if Sinicorp provided evidence. This goes beyond an admission that Pan has in her possession, custody or control discoverable documents which have not been discovered. It reveals an intention not to discover those documents unless and until Sinicorp has proven that they exist and have not been discovered. This approach mistakes the process of discovery for an adversarial and adjudicative process, and evinces an intention to deliberately frustrate, delay or avoid discovery obligations.

276 Pan cannot cure her default of discovery by seeking to identify the source of the money for the Pan Alleged Apartment Payments on cross-examination, as the default is a failure to discover documents. Further, she did not cure her default by Pan's Third Affidavit of Documents.

Documents leading up to the making of the Contract of Sale for Apartment 101 - evidence

277 Paragraph 2(b) of the 2015 Mukhtar Orders required Pan to discover correspondence or documents leading up to the making of the Contract of Sale for Apartment 101, including with solicitors, conveyancers, estate agents or banks.

278 No documents meeting this description are discovered in any of Pan's Affidavits of Documents. On cross-examination Pan stated that she obtained no such correspondence or documents except two copies of the Contract of Sale itself, which were obtained from Liu.[107]

279 Sinicorp did not press the issue or make submissions on this point. I consider that Pan's discovery in this category must be assessed in the same or a similar way to my assessment of Ren's discovery of documents and correspondence leading up to her own purchase, nomination and transfer of the Apartments. In short, and as I observed earlier, it is unusual that no such documents or correspondence are in Pan's possession, custody or control, and this may possibly be explained by the familial relationship between Pan and Liu. However, I think it likely that such documents exist and that Pan has failed to discover them.

Conclusion - Pan has failed to comply with her discovery obligations and orders related to discovery, and she has engaged in conduct intended to delay, frustrate or avoid discovery of discoverable documents

280 I am satisfied that Pan has failed to comply with her discovery obligations and the Court's orders relating to discovery, for the reasons set out above. I am also satisfied that her conduct has been intended to delay, frustrate or avoid discovery of discoverable documents. In particular, her failure to comply at all with the 2019 Mukhtar Orders until a week before she was to be cross-examined pursuant to s 57 of the CPA is egregious and has not been explained. Even more egregious is that Pan's Third Affidavit of Documents does not, for the reasons set out above, represent compliance with that order. That she relies on the mistaken schedule to the 2019 Mukhtar Orders is, as I have already said, representative of a continuing failure to comply with her obligations and her intention to frustrate or avoid discovery. That alone is a clear breach of her overarching obligations under the CPA.

Is it appropriate to dismiss Pan's claim and/or defence to counterclaim?

281 In addressing this question, I will follow the same approach as set out in paragraphs 245 to 249 and 251 to 252 above.

282 In my view, it is appropriate to dismiss Pan's claim and her defence to counterclaim. Her failures in respect of her discovery obligations and compliance with discovery orders are extensive, and her conduct in respect of discovery has been particularly egregious.

283 In considering the factors identified in Hodgson v Amcor, I reach the same conclusions regarding Pan as I did in respect of Ren, for the same reasons. Pan's appalling Third Affidavit of Documents and her evasive and inconsistent responses on cross‑examination indicate a serious and continuing recalcitrance in respect of her discovery obligations, which has denied Sinicorp a hearing of the issues in a timely, efficient or fair manner. There is irremediable prejudice to Sinicorp as a result of this conduct, as it and the Court can no longer have any confidence that Pan would make proper discovery now if given the opportunity to do so. For the reasons already stated in respect of Ren, I am not satisfied that any less severe order would be appropriate to address Pan's conduct.

284 It is convenient to summarise here my views about a number of remaining submissions made on behalf of the Plaintiffs which have not been specifically addressed above.

285 First, I reject the Plaintiffs' submissions that they were not obliged to give discovery of many of the documents sought, including those required by the Mukhtar Orders, on the basis of r 29.01.01(4)(a) of the Rules, which provides that:

if a party giving discovery reasonably believes that a document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover that document

(a) at least by the time of the Mukhtar Orders, the Plaintiffs were on notice that Sinicorp did not have many of the documents which the Plaintiffs asserted they must already have;

(b) there is no evidence that the Plaintiffs reviewed the documents produced on subpoena or by Sinicorp on discovery to ascertain whether documents which they had or once had but no longer have were now in Sinicorp's possession;

(c) many of the documents sought by Sinicorp and not discovered by the Plaintiffs were uniquely in the control or possession of the Plaintiffs themselves; and

(d) for the large part, if the Plaintiffs did believe Sinicorp already had the documents, such belief was not reasonable.

287 Second, I reject the Plaintiffs' vociferous submission that Sinicorp has disproportionately, unfairly and unreasonably pursued them in respect of discovery and that the Summons is an abuse of process.[108] Sinicorp has doggedly pursued proper discovery from the Plaintiffs and cannot fairly be criticised for that. There is a real sense in which the time and expense dedicated to discovery in this proceeding has been out of all proportion. Discovery has run over nearly seven years and has occupied the resources of both parties and the Court in the course of the various pieces of correspondence, affidavits, putative efforts at discovery and interlocutory proceedings. However, the disproportionate scale of the discovery process in this proceeding is entirely the Plaintiffs' fault. That is a corollary of my findings, detailed above, that the Plaintiffs have failed to comply with their discovery obligations and have engaged in conduct intended to frustrate, delay and avoid their discovery obligations. The Plaintiffs cannot then say that Sinicorp has 'clogged the wheels of justice' in maintaining its entitlement to proper discovery.

288 Third, I consider the Plaintiffs' submission that the Mukhtar 2015 Orders required them to state whether certain documents were in or had been in their possession but did not order them to make discovery or produce certain documents[109] to be astonishing. That such a disingenuous proposition could be put as an excuse for not discovering documents is remarkable.

289 Fourth, I reject the Plaintiffs' submission that they could not be seen to have continued to fail to comply with the 2015 Mukhtar Orders as those orders were spent. The Plaintiffs said the 2015 Mukhtar Orders were spent because they had complied with them and by virtue of the 2016 Mukhtar Orders. In respect of the latter, paragraphs 1 to 3 of the 2016 Mukhtar Orders were relied upon.[110] This submission is specious. Discharging an earlier order adjourning the balance of the plaintiffs' own application for discovery can hardly be characterised in this way. So too the discharge of the order adjourning Sinicorp's summons in respect of the Plaintiffs' compliance with discovery, when the 2016 Mukhtar Orders themselves set up a mechanism for dealing with that issue. Paragraph 2 of the 2016 Mukhtar Orders goes no further than dismissing Sinicorp's earlier summons: this does not mean that the discovery obligation itself is spent. The discovery orders contained in the 2015 Mukhtar Orders were not discharged and the Plaintiffs' obligations in respect of them are not spent. Mr Lim eventually retreated from the submission that the 2015 Mukhtar Orders were spent by reason of the 2016 Mukhtar Orders, but only after I expressed the view during argument that this was not a proper reading of the latter.

290 Fifth, I reject the Plaintiffs' submissions in respect of the error in the 2019 Mukhtar Orders relating to Pan. The Plaintiffs submit that it is possible Sinicorp and its lawyers did not know about this error. So much may be true, and it certainly appears that the Plaintiffs made no effort to draw it to their attention. But the Plaintiffs go further, submitting that Sinicorp and its lawyers 'had no interest in making sure that Orders made by the Court were correct because they were not going to accept whatever affidavits of documents Ms Ren and Ms Pan may make'.[111] The 2019 Mukhtar Orders were made on the papers by consent, signed minutes having been provided by the parties, and were just as much the Plaintiffs' responsibility as Sinicorp's. More importantly, there is no proper basis for the Plaintiffs to cast the aspersions they have on Sinicorp and its lawyers by making this submission in the manner in which they have done.

291 Sixth, I reject the Plaintiffs' submissions that Sinicorp's pursuit of their discovery over the years has been an attempt to drain their resources and weaken their resolve to pursue their claims and defend the counterclaim. There is no proper basis for this: Sinicorp has given the Plaintiffs every opportunity to make proper discovery and they have continually failed to do so. Sinicorp has not acted unreasonably in the course of this protracted discovery process.

292 Seventh and relatedly, I reject the Plaintiff's submissions that instead of making this application Sinicorp could have applied for specific discovery but had not done so as it would have been unable to satisfy the Court that the documents it was seeking were likely to exist. Having made the efforts it already had to extract proper discovery from the Plaintiffs, I fail to see how it can reasonably be said that Sinicorp ought to have kept making what would likely be futile discovery applications instead of pursuing the course that it has done. I also reject the submission that to the extent Sinicorp needs bank statements which have not been discovered by the Plaintiffs, it should have subpoenaed them from the banks. That is no answer to the Plaintiffs' failures to comply with their discovery obligations.

293 For all of the reasons set out herein, I have reached the conclusion that the Plaintiffs' claims and defences to counterclaim as between them and Sinicorp should be struck out.

294 In doing so, I should state that I have not given any weight to Sinicorp's submissions about the Plaintiffs' conduct in respect of discovery where those submissions are based on the cross-examination of the Fourth Plaintiff or his affidavit of 11 May 2021. Consequently, I have not viewed it necessary to summarise those submissions at all.

295 As noted by John Dixon J in Bolitho v Banksia Securities Ltd (No 18) (remitter):[112]

The proper discharge of discovery obligations by parties and practitioners has long been recognised as fundamental to the goal of a just, efficient, timely and cost-effective quelling of disputes.

296 The Plaintiffs' conduct of their discovery in this proceeding has been such as to make the achievement of the goal identified by John Dixon J in the preceding paragraph impossible. Further, I embrace his Honour's observation that an inexcusable failure to provide discovery when ordered to do so is 'a form of suppression of evidence'.[113]

297 I fully accept that striking out the Plaintiffs' claims and their defences to counterclaim has grave consequences for them. However, I consider that the conduct of the Plaintiffs in this case calls for that sanction and that it is the 'least that is necessary to achieve the ends of appropriate case management.'[114] Further, I consider it the least that is necessary to do justice between the parties.

298 I will hear from the parties as to the form of orders and as to costs.

299 To that end, the parties should confer as to the form of final orders and as to costs. If an agreed position is reached, then proposed consent orders giving effect to this ruling and dealing with the matter of costs should be sent to my Chambers by 4.00 pm on 26 November 2021. If the parties do not reach agreement, then each party is to send to my Chambers, by 4.00 pm on 26 November 2021, their preferred form of orders and a short written submission (of no more than 3 pages) in respect of costs. In the latter instance, the proceeding will be listed for 3 December 2021 for the making of orders and a determination on costs.

[1] The Defence and Counterclaim, and Reply, include Jiann Gwo Ni as an additional nominee for Apartments 102, 103 and 106.

[2] Affidavit of Chuen Lim sworn 10 May 2016, [3]; Exhibit CL-1.

[3] Orders of Mukhtar AsJ, 28 June 2017, Other Matters 'A'.

[4] The references in the schedule to paragraph numbers in the amended statement of claim is to a version of it which is no longer current, such that the paragraph numbers do not necessarily correlate with those in the current version, being that which I have defined as the Statement of Claim.

[5] Lim 5 June Affidavit, [31]-[32].

[6] Citing Re Lenijamar Pty Ltd; Domenico Picone and Margaret Anne Picone v AGC (Advances) Limited [1990] FCA 520; (1990) 27 FCR 388, 396 (Wilcox and Gummow JJ) ('Lenijamar'); Freeman v Rabinov [1981] VicRp 52; [1981] VR 539, 544 (Lush J, with whom Murray and King JJ agreed) ('Freeman').

[7] Citing Octagon Inc v Hewitt [2011] VSC 138.

[8] Citing Finance Sector Union of Australia v Commonwealth Bank of Australia Limited [2000] FCA 1389, [9]-[10] ('FSU v CBA'); Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No. 4) [2010] FCA 863, [9] ('Sunland').

[9] [2020] VSC 710, [78] ('Muchnicki'), agreeing with the Mukhtar AsJ in Austructures Pty Ltd & Anor v Makin & Anor [2016] VSC 289, [42].

[10] [2016] VSC 573 ('Volunteer Fire Brigades').

[11] Volunteer Fire Brigades, [36]. The Plaintiffs also cite Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, 323 [56]-[57] ('Armstrong').

[12] See also National Builders Group IP Holdings Pty Ltd v ACN 092 675 164 Pty Ltd (in liq) [2015] VSCA 260, [37]-[38] (Maxwell P and Kaye JA) ('National Builders Group Appeal').

[13] Lenijamar, [36]; Hodgson v Amcor Ltd; Amcor Ltd v Barnes & Ors [2011] VSC 63, [98] ('Hodgson v Amcor').

[14] Ting Ting Jia v Lee & Ors [2018] VSC 164, [58] ('Jia v Lee').

[15] Hodgson v Amcor, [99]-[100].

[16] British American Tobacco Australia Services Ltd v Cowell [2002] VSCA 197; (2002) 7 VR 524, [178] ('Cowell') citing the decision of US District Judge Rosenbaum in Capellupo v FMC Corporation 126 FRD 545 (1989).

[18] In Jia v Lee, Derham AsJ applied this principle without discriminating between r 24.02 and the inherent jurisdiction of the Court, on the one hand, and s 56(2)(j) of the CPA on the other.

[19] Kennedy v Lyell (No 5) [1882] WN 137, CA.

[20] Logicrose Ltd v Southend United Football Company Ltd (unreported, Ch Div, 5 February 1988) as cited by the Court of Appeal in Cowell [178].

[21] National Builders Group Appeal, [33]-[38].

[22] National Builders Group Appeal, [33][38]; Freeman, 544; Hodgson v Amcor, [99].

[27] See paragraph 76 above.

[28] Volunteer Fire Brigades, [45]-[54].

[29] Volunteer Fire Brigades, [34].

[30] [1959] HCA 23; (1959) 103 CLR 341, 343 (citations omitted) ('Mulley').

[31] See especially FSU v CBA, [31]. See also the authorities on this point cited by Graham J in Seven Network Limited v News Limited [2005] FCA 915, [25].

[32] Sunland, [10] (citations omitted).

[33] Briginshaw v Briginshaw (1938) 60 CLR 336, 361 ('Briginshaw'). The other proposition often cited to Briginshaw, that the seriousness of an allegation bears on the level of proof it is required to be put to establish a reasonable satisfaction in its existence, is also relevant.

[34] [2014] VSC 530 ('National Builders Group'). His Honour's exercise of the discretion to dismiss the defence was upheld as justified, subject to a concern regarding inconsistent verdicts between the defendants, by the Court of Appeal: see National Builders Group Appeal.

[35] National Builders Group, [54]-[61].

[36] Ren's First Examination Transcript, 7.30-8.2.

[37] Ren's First Examination Transcript, 6.16-7.10.

[38] Ren's First Examination Transcript, 6.26-30.

[39] Ren's First Examination Transcript, 6.31-7.10.

[40] Ren's First Examination Transcript, 9.11-28.

[41] Ren's First Examination Transcript, 9.9-13.8.

[42] Ren's Fifth Affidavit of Documents, [15].

[43] Ren's First Examination Transcript, 29.4-9.

[44] Ren's First Examination Transcript, 29.14-19; 30.16-22.

[45] Ren's First Examination Transcript, 30.4-12.

[46] Ren's First Examination Transcript, 31.13-32.23.

[47] Ren's First Examination Transcript, 31.24-31.26.

[48] Ren's First Examination Transcript, 32.25-29.

[49] Ren's First Examination Transcript, 33.2-12.

[50] Ren's First Examination Transcript, 33.13-34.3.

[51] Ren's First Examination Transcript, 34.13-17.

[52] Ren's First Examination Transcript, 34.18-23; 34.5-14.

[53] Ren's First Examination Transcript, 34.24-27.

[54] Ren's First Examination Transcript, 37.25-41.16.

[55] Ren's First Examination Transcript, 42.26-43.10.

[56] Ren's First Examination Transcript, 43.2-5.

[57] Ren's Second Examination Transcript, 143.29-30; 145.2-12.

[58] Ren's Second Examination Transcript, 125.30-127.17.

[59] Ren's Second Examination Transcript, 145.27-30.

[60] Ren's Fifth Affidavit of Documents, [24]-[25].

[61] I do not consider that Ren has been deliberately evasive here.

[62] Whether this was produced on discovery from Sinicorp's own records or obtained on subpoena was not in evidence before me.

[63] Ren's First Examination Transcript, 61.2-5.

[64] Ren's First Examination Transcript, 57.22-25.

[65] Ren's Second Affidavit of Documents, [11].

[66] Ren's First Examination Transcript, 49.5-11.

[67] Ren's First Examination Transcript, 47.1-48.6.

[68] Ren's First Examination Transcript, 47.7-17.

[69] Ren's First Examination Transcript, 49.24-31.

[70] Ren's First Examination Transcript, 51.18-52.5.

[71] Ren's Second Affidavit of Documents, [9].

[72] Ren's Fifth Affidavit of Documents, [30]-[31].

[73] Ren's Fifth Affidavit of Documents, [29].

[74] Ren's First Examination Transcript, 59.3-8.

[75] Ren's First Examination Transcript, 57.15-18.

[76] Ren's First Examination Transcript, 56.23-31 and 57.9-25.

[77] Ren's First Examination Transcript, 58.13-20.

[78] Ren's First Examination Transcript, 57.1-13.

[79] Ren's First Examination Transcript 57.23-58.1.

[80] Ren's First Examination Transcript, 64.8-16.

[81] Ren's Fifth Affidavit of Documents, [21].

[82] Ren's Sixth Affidavit of Documents, [20].

[83] Ren's Second Examination Transcript, 139.20-22.

[84] Ren's Second Examination Transcript, 139.23-140.31.

[85] Ren's Second Examination Transcript, 141.13-17.

[86] Affidavit of Documents sworn by Baoer Shi on 1 November 2014.

[87] CPA, ss 7 and 8.

[90] See paragraph 100 above.

[91] Pan's Examination Transcript, 86.10-22.

[92] Pan's Examination Transcript, 94.9-13.

[93] Pan's Examination Transcript, 96.13-29.

[94] Pan's Examination Transcript, 94.19-22.

[95] Pan's Examination Transcript, 96.13-29.

[96] Pan's Examination Transcript, 88.26-28.

[97] Pan's Examination Transcript, 89.21-23.

[98] Pan's Examination Transcript, 101.9-13.

[99] Pan's Examination Transcript, 89.23-28 and 99.22-29.

[100] Pan's Examination Transcript, 87.2-7.

[101] Pan's Examination Transcript, 87.109.7-9.

[102] Pan's Examination Transcript, 100.3-7.

[103] Pan's Examination Transcript, 100.11-13.

[104] Pan's Examination Transcript, 85.9-13.

[105] Pan's Examination Transcript, 100.19-21.

[106] Pan's Examination Transcript, 100.21-26.

[107] Pan's Examination Transcript, 111.16-27.

[108] See paragraph 94 above.

[109] Plaintiffs' Second Outline, [9]-[10].

[110] The 2016 Mukhtar Orders are relevantly set out in paragraph 46 above.

[111] Plaintiffs' Second Outline, [30].

[112] [2021] VSC 666, [2127] ('Bolitho v Banksia No 18').

[113] Bolitho v Banksia No 18, [1238].