Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v... [2023] NSWSC 1405 | Case summary

Supreme Court of NSW|2023-10-30|Before: Stevenson J

Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Offshore International S.A. v Banco Central S.A. [1977] 1 WLR 399 Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380 R v International Trustee for the Protection of Bondholders Aktiengesellschaft [1937] AC 500 Ralli Brothers v Compania Naviera Sota y Aznar [1920] 2 KB 287 Sinotani Pacific Pte Ltd v Agricultural Bank of China [1999] 2 SLR(R) 970 United City Merchants (Investments) Ltd v Royal Bank of Canada (The American Accord) [1983] 1 AC 168 Texts Cited: A V Dicey, Dicey, Morris & Collins on the Conflict of Laws (15th ed, 2012, Sweet & Maxwell) J E Byrne, The Official Commentary on the International Standby Practices (2nd ed, 2005, ICC Publishing S.A.) M Davies, A S Bell, P L G Brereton and M Douglas, Nygh's Conflicts of Law (10th ed, 2020, LexisNexis Butterworths Australia) P Herzfeld and T Prince, Interpretation, (2nd ed, 2020, Thomson Reuters) Category: Principal judgment Parties: Shinetec (Australia) Pty Ltd (Plaintiff) The Gosford Pty Ltd (First Defendant/Cross-Claimant) David Anthony Hurst (Second Defendant) David Anthony Sampson (Third Defendant) Macquarie Bank Limited (Fifth Defendant) Bank of China Limited (Cross-Defendant) Representation: Counsel: A R Zahra SC with M Galvin (Plaintiff) R G McHugh SC with R J May (First Defendant/Cross-Claimant, Second and Third Defendants) N J Owens SC with J B Kay Hoyle SC (Cross-Defendant)

Solicitors: Walker Hedges Forestville (Plaintiff) Johnson Winter Slattery (First Defendant/Cross-Claimant, Second and Third Defendants) King & Wood Mallesons (Cross-Defendant) File Number(s): 2021/220732

JUDGMENT

By a "Design and Construction Head Contract" (the "Contract") made on 15 June 2020, the plaintiff, Shinetec (Australia) Pty Ltd, agreed with the defendant, The Gosford Pty Ltd, to design and construct, as well as partly finance, a $185 million [1] development (the "Project") on a property owned by Gosford in Mann Street in Gosford. The Project was to be named "The Archibald". The Project was commenced and the site cleared. However, construction did not commence. Indeed, the requisite construction certificate was not issued by the local council. The property has since been sold.
It was a term of the Contract that Shinetec would fund the first $37 million [2] of the total construction costs. Shinetec also agreed, to secure that obligation, to provide a standby letter of credit in the sum of $37 million in favour of Gosford from its parent, a Chinese corporation: Shanxi Construction Investment Group Co Ltd ("Shanxi"). On 26 November 2020, Shinetec entered a "Loan Agreement" with Gosford in relation to that amount. I return to these documents below.
On 14 July 2020, Shanxi procured such a standby letter of credit (the "Letter of Credit") from the cross-defendant, Bank of China Limited (the "Bank").
On 26 July 2021, a secured creditor of Gosford, Gemi 149 Pty Ltd, appointed the second and third defendants as receivers and managers of Gosford (the "Receivers").
On 30 July 2021, [3] the Receivers served on the Bank a demand (the "Demand") under the Letter of Credit.
A question in these proceedings is whether Gosford, or the Receivers, were entitled to issue the Demand and whether, as Shinetec contends, it is invalid and of no effect.
There is an order of this Court restraining the Receivers from receiving any funds under the Letter of Credit until further order.
The Bank is not subject to that order. The Bank is, however, the subject of a "Civil Ruling" of the Taiyuan Intermediate People's Court of Shanxi Province (the "Chinese Court") suspending payment under the Letter of Credit.
The Bank has neither honoured, nor dishonoured its obligations under the Letter of Credit and contends that it has not refused to pay. It contends that, because of an issue relating to the Demand and because of the Civil Ruling of the Chinese Court, it is not yet obliged to do so.
A further question for me is whether that is so.
For convenience, I will not refer separately to Gosford and the Receivers, but rather simply to Gosford, unless the context otherwise requires.

The issues

Shinetec brings these proceedings against Gosford. Gosford has cross-claimed against the Bank.
Shinetec claims as against Gosford: 1. a declaration that the Demand "is invalid and of no effect"; and 2. an order that Gosford return the Letter of Credit to it.
Gosford claims as against the Bank an order that the Bank pay it $37 million in accordance with the Letter of Credit and judgment accordingly.
The questions are whether: 1. as Shinetec contends, Gosford was only entitled to make the Demand if Shinetec had failed to secure finance as required by cl 37.1A and Item 6A of Part A of the Contract; [4] 2. Shinetec in fact made such finance available to Gosford; [5] 3. the Demand for that reason was and remains invalid; [6] 4. the Demand was and remains invalid for the further reason that it contains assertions that were false; [7] 5. these matters have any bearing on Gosford's rights against the Bank now that the Demand has been made; 6. the Bank was entitled to withhold payment under the Letter of Credit.
The answer to question (6) requires consideration of: 1. the governing law of the Letter of Credit; 2. the terms and effect of International Standby Practices ISP98 ("ISP98"), to which the Letter of Credit was expressed to be subject; 3. whether the Receivers were persons who claim "to succeed to the interests of the beneficiary" for the purposes of ISP98; and 4. the effect of the Civil Ruling of the Chinese Court.

Decision

Shinetec's case as against Gosford fails.
Gosford's case against the Bank succeeds. Gosford is entitled to judgment against the Bank. I will invite submissions as to whether the judgment should be stayed, and if so, on what terms.

The course of events

Under the Contract, Shinetec agreed to provide a standby letter of credit for $37 million in favour of Gosford from a "parent company or nominee". I will return below to the provisions in the Contract dealing with this. But I will first set out the events leading up to, and following, the issue of the Letter of Credit.
On 2 July 2020, Shinetec's parent, Shanxi, applied to the Shanxi branch of the Bank for the Letter of Credit.
The Shanxi branch of the Bank issued the Letter of Credit on 10 July 2020.
The Letter of Credit was expressed to be in favour of Gosford in the sum of $37 million. A copy of the Letter of Credit is attached to these reasons. Letter of Credit
It was expressed to be subject to ISP98. I will return to ISP98 below. [8]
The operative term of the Letter of Credit was as follows: "Therefore, we hereby affirm that we are responsible to you, on behalf of the Contractor, [9] up to a total amount of AUD37,000,000.00 (say Australian dollars thirty seven million only), and we undertake to pay you unconditionally and independently upon our receipt of your first written demand in original paper form declaring the Contractor fails to perform its obligations under the contract and specifying in which respects the Contractor is in failure and amount claimed."
The Letter of Credit also provided: "For the purpose of identification, any such demand in original should be presented to us through your bank confirming that the signatures thereon are authentic with their confirmation by authenticated SWIFT". [10]
The reference in that passage to "your bank" was a reference to Gosford's advising bank, Macquarie Bank Limited. [11] Macquarie Bank sent the Bank such a "confirmation" on 30 July 2021. [12]
The Letter of Credit made no provision for its governing law. It was expressed to expire on, relevantly, 31 July 2021.
On 26 November 2020, Shinetec and Gosford entered the Loan Agreement to which I have referred. I return to this below.
On 4 December 2020 and 21 January 2021, Shinetec issued Gosford with Progress Claims No 1 and 2. Gosford approved those progress claims. They were deemed to have been paid from, in effect, a drawdown of the $37 million that Shinetec agreed to make to Gosford. I describe the mechanism behind this below.
Around this time, the development faltered.
On 3 February 2021, Gosford issued Shinetec with a show cause notice under the Contract. On 8 February 2021, Shinetec issued Gosford with a notice of delay under the Contract. On 12 February 2021, Shinetec responded to the show cause notice.
On 17 March 2021, a secured creditor of Gosford, MPG Property Holdings Pty Ltd, appointed receivers and managers to Gosford.
On 6 April 2021, Shinetec itself appointed different receivers and managers to Gosford. Those receivers and managers remain appointed.
On 28 April 2021, Shinetec served on Gosford a Notice of Suspension of Contract.
As I have said, on 26 July 2021 another secured creditor of Gosford, Gemi 149, appointed the Receivers to Gosford.
On 30 July 2021 Gosford, by the Receivers, made the Demand.
The Demand was delivered to the Bank's Shanxi branch by a solicitor, Ms Kate Wang, on 30 July 2021.
The form of the Demand is attached to these reasons. Demand
The Demand asserted that Shinetec had "failed to perform its obligations under the Contract" in a number of specified ways which were stated in some detail. It asserted that Gosford had "suffer[ed] loss and damage of at least AUD67 million" as well as "loss of profit from resale of the apartments which is presently not quantifiable".
Shinetec contends that the assertions in the Demand were "false" in the sense of "factually inaccurate". It does not assert that the assertions were knowingly false, that is, made fraudulently.
The Demand does not, in terms, allege that Shinetec had not funded the first $37 million of the construction costs. But that allegation is implicit in the allegation at 7(c)(iii) that Gosford had suffered consequential loss because "Gosford will now incur additional financing for the so-called funding amount of AUD37 million … which Shinetec was to provide under the Contract".
At the conclusion of the document, under the heading "Demand", it stated: "A. This letter of demand is being presented by and on behalf of Gosford to the counter at the BOC branch at No. 186 Pingyang Rd, Taiyuan, Shanxi Province, being the branch named in the Letter of Credit. B. Gosford's bank, Macquarie Bank, has duly confirmed via SWIFT that the signatures on the letter of demand are authentic. C. This letter constitutes a demand upon your bank to comply with the unconditional and independent undertaking to Gosford in the Letter of Credit to pay the sum of AUD37 million forthwith. D. This demand is being presented with the original of the Letter of Credit which shall remain in the possession of Gosford's representative. E. Your bank is authorised to make the payment by either delivering to Gosford's representative a bank cheque made out to Gosford for the sum of AUD 37 million or alternatively by EFT to: Account name: The Gosford Pty Ltd (Receiver and Manager Appointed) BSB: [XXXXXX] Account no: [XXXXXX] Swift Code: [XXXXX] In the case of the latter, it is a condition that your bank must provide written details of a completed transfer to Gosford's representative before the representative leaves the branch." (Emphasis in original.)
The Demand was headed as being made by "The Gosford (Receivers and Managers Appointed)". It was signed by each of the Receivers as "Joint Receiver & Manager" on behalf of "The Gosford Pty Limited (Receivers & Managers Appointed)". It used, including in the passage I have set out in the preceding paragraph, the term "Gosford", defined to mean "The Gosford Pty Limited (ACN 630 253 557)".
I will further consider the Demand later in these reasons.
The Bank made a preliminary assessment that the documents presented conformed with the requirements of the Letter of Credit, but that it was necessary the Shanxi branch forward the Demand to the Bank's International Settlement Discount Processing Centre in Beijing for further review.
Later that afternoon, Ms Wang was told that the Beijing Processing Centre was of the opinion that the Demand was compliant but that payment could not be made that day. Ms Wang was told that it was the Bank's usual practice to inform an applicant, here Shanxi, that demand had been made in order to ascertain whether the applicant could arrange for payment, failing which the Bank would make payment.
On 30 July 2021, the Bank wrote to Shanxi notifying it of the presentation of the Demand and stating: "Please kindly review and process the claim immediately if it's correct. If you have any questions or objections, please contact us immediately. If the above claim meets the requirements of the Letter of Guarantee, we shall be entitled to debit your account with us to pay the claim amount together with interest and expenses in accordance with the relevant terms of the application."
Gosford contends that it was not appropriate for the Bank to give such notice to Shanxi. However, in view of the conclusion that I have reached concerning the Bank's obligations in relation to the Demand, it is not necessary that I make any finding about that contention.
On 30 July 2021, Gosford's advising bank, Macquarie Bank, sent a SWIFT communication to the Bank: "In accordance with the terms of the [Letter of Credit], for the purpose of identification, as the bank for the named beneficiary, The Gosford Pty Limited (ACN 630 253 557) … on a bank-to-bank basis via SWIFT, we confirm that the signatures on the attached original demand made by the beneficiary The Gosford Pty Limited (ACN 630 253 557) under the [Letter of Credit] have been sighted by us and are authentic signatures of the officers of The Gosford Pty Limited (ACN 630 253 557)".
This was the identification confirmation called for by the passage in the Letter of Credit that I have set out at [25] above and referred to at "B" of the passage in the Demand set out at [42] above. Macquarie Bank's SWIFT communication attached the Demand. It referred to Gosford as I have set out: that is, not as "The Gosford Pty Limited (Receivers and Managers Appointed)". There is a dispute as to the ambit of Macquarie Bank's assurance in this message.
The Letter of Credit expired on 31 July 2021.
On 2 August 2021 Shanxi wrote to the Bank asserting that "the claiming entity [in the Demand] is not compliant", "the signee is not compliant" and "the counterparty has no right to make the claim". Shanxi concluded "we request the Bank to consider our opinion, review again, and apply appropriate reasons to return the demand and protect the interests and security of overseas state-owned enterprises".
That caused an employee of the Bank to notice that the Demand had been executed by the Receivers.
Also on 2 August 2021, the solicitors for Gosford wrote to the Bank asserting that the Bank was in breach of its obligation to make payment under the Letter of Credit "at sight" and demanding the payment be made by 4pm the following day.
On 3 August 2021, the Bank sent a SWIFT communication to Gosford's advising bank, Macquarie Bank, containing a request for additional documents under r 6.13 of ISP98. [13]
The SWIFT communication stated: "The demand letter dated July 28, 2021 is signed by 'The Gosford Pty Ltd (Receivers & Managers appointed)', but the beneficiary of the standby letter of credit issued by our bank is 'The Gosford Pty Ltd (ACN 630 253 557)'. There are significant differences in the form of the two names."
The requested documents included: "Additional documents issued by public officials mentioned in Article 6.12 of ISP98 … the statement, agreement and indemnity regarding the status of the claimed successor as successor by operation of law."
The document concluded by stating: "Until we receive the above-mentioned documents, our obligation to honour or give notice of dishonour is suspended."
For some reason, Macquarie Bank did not pass on the 3 August 2021 SWIFT communication to Gosford.
On 2 August 2021, Shinetec commenced these proceedings against Gosford, the Receivers, Macquarie Bank and the Bank.
On 2 August 2021, Lindsay J as Duty Judge ordered that: 1. Macquarie Bank be restrained from acting pursuant to the Demand; 2. Macquarie Bank be restrained from taking any steps to transfer any funds relating to the Demand; 3. Gosford and the Receivers be restrained from transferring any funds pursuant to the Demand; 4. the Receivers be restrained from taking any steps from acting pursuant to the Demand; 5. the Receivers be restrained from taking any steps to transfer funds relating to the Letter of Credit into the account identified in the Demand; 6. the Receivers be restrained from issuing any further demand relating to the Letter of Credit; 7. Gosford and the Receivers be restrained from taking any steps to issue any demand relating to the Letter of Credit; and 8. in the event that the Bank transferred the money pursuant to the Letter of Credit into the account nominated in the Demand, that Gosford and the Receivers be restrained from transferring or dealing with any such sum until further order.
As no orders were sought against the Bank, no orders were made against it. Shinetec has since discontinued the proceedings against the Bank.
The orders made by Lindsay J remain in place and, as I have said, are expressed to be "until further order".
Also on 2 August 2021, and unbeknown to Gosford and the Receivers until 12 August 2021, Shanxi filed the Civil Complaint in the Chinese Court. The Complaint was directed to Gosford as defendant and to "Bank of China Limited, Shanxi Branch" as Third Party.
In the Complaint, Shanxi made the following "Claims": "1. The Plaintiff requests to affirm the act of Defendant that demanding Third Party to pay RMB 177 million (AUD 37 million) under a standby letter of credit No. GCO377020000874 has constituted fraud in relation to letter of credit; 2. The Plaintiff requests an order that the Third Party terminate the payment of RMB 177 million (AUD 37 million) under the standby letter of credit No. GCO377020000874".
The Civil Complaint describes the "Complaint Reason" as: "Dispute over fraud in relation to letter of credit."
The fraud allegation is that Gosford: "[K]nowing that the payment conditions of the standby letter of credit were not satisfied, and that the standby letter of credit shall be returned due to the termination of the construction contract as a result of its breach of contract, still requested the Third Party to make the payment as per the letter of credit … which has constituted fraud in relation to the letter of credit…".
Shinetec makes no corresponding allegation in these proceedings.
On 3 August 2021, the Chinese Court issued a "Civil Ruling" addressed to Gosford as Defendant and "Bank of China Limited, Shanxi Branch" as Third Party: "To suspend the payment of RMB 177 million (AUD 37 million) under the standby letter of credit No. GC0377020000874 issued by the third party Bank of China Limited Shanxi Branch with the respondent THE GOSFORD PTY LIMITED as the beneficiary."
The Civil Ruling also provided: "This ruling will be enforced immediately upon service. If you are not satisfied with this ruling, you may apply to the Court for reconsideration within 10 days from the date of service of the ruling."
On 4 August 2021, the Chinese Court issued an Enforcement Assistance Notice which stated: "To Bank of China Limited Shanxi Branch: Whereas: The Civil Ruling ((2021) JIN01 MINCHU No.809) has already taken legal effect, that in relation to the dispute of Shanxi Construction Investment Group Co., Ltd, The Gosford Pty Limited and Bank of China Limited Shanxi Branch over fraud in relation to letter of credit, to suspend the payment of RMB 177 million (AUD 37 million) under a standby letter of credit No. GC0377020000874 issued by the third party Bank of China Limited Shanxi Branch with the respondent THE GOSFORD PTY LIMITED as the beneficiary. Please suspend the payment for 12 months from 4 August 2021 to 4 August 2022. Where the suspension is expired or the freezing is revoked, the payment may resume."
As can be seen, like the Civil Ruling and Civil Complaint, the Enforcement Assistance Notice was directed to "Bank of China Limited, Shanxi Branch". I discuss the significance of this below.
On 4 August 2021, the Bank was served with a copy of the Civil Ruling in the Enforcement Assistance Notice. The Bank contends that the effect of these documents was to prevent it from making any payment under the Letter of Credit.
On 6 August 2021, the Bank notified Gosford by SWIFT communication to Macquarie Bank, as the advising bank, that the Bank was subject to an order suspending payment under the Letter of Credit and was unable to effect payment.
The suspension by the Chinese Court of the Bank's payment obligation under the Letter of Credit has been extended and is currently effective until 24 July 2024.
On 2 March 2023, the Bank approached the Shanxi Higher People's Court to seek a revocation of the Chinese Court Civil Ruling. The application was refused.

Shinetec's funding obligations under the Contract

Before turning to the manner in which Shinetec articulated its claim in its Commercial List Statement, I will set out the relevant provisions from the Contract.
The Contract was comprised of a "Formal Instrument of Agreement" which incorporated "General Conditions of Contract" in the form of AS4902-2000.
In the Formal Instrument of Agreement, the parties recited that Gosford wished to procure the design and construction of the Project and wished to engage Shinetec to carry out the "work under the Contract".
Clause 3 of the Formal Instrument of Agreement provided that, relevantly: "The parties acknowledge and agree that: (a) despite anything to the contrary in the Contract, the rights, entitlements, liabilities and obligations of the parties under the Contract … are suspended until and are subject to, and conditional upon either: (i) all conditions precedent being satisfied; or (ii) where a condition precedent has not been satisfied, that condition has been waived by [Gosford] in writing and all other conditions precedent have been satisfied."
"Conditions Precedent" was defined to mean: "(a) [Gosford] securing finance (on terms acceptable to [Gosford]) sufficient to meet the finance amount; (b) financial close under [Gosford's] finance facility (referred to in (a) above) has been achieved; and (c) [Gosford] has issued a notice instructing [Shinetec] to commence the [work under the Contract]".
The term "finance amount" was defined to mean: "… the amount of finance (other than the funding amount) to be obtained by [Gosford] for payment for [the work under the Contract]."
The "funding amount" was defined to mean the amount in Item 6A of Part A of the Contract; the $37 million.
The Contract also referred to the "Guaranteed Maximum Price" or "GMP", which was stated, in cl 2 of the Formal Instrument of Agreement, to be $185 million.
Thus, in effect, the "finance amount" was the difference between the Guaranteed Maximum Price of $185 million and the "funding amount" of $37 million: $148 million.
Clause 37.1A of the Contract provided, relevantly: "[Shinetec] funded payment The parties acknowledge and agree that: (a) pursuant and subject to the terms of a separate agreement between [Shinetec] and [Gosford], [Shinetec] has agreed to fund the payment of the first part of the GMP … to the amount in the aggregate of the funding amount". (Emphasis in original.)
The clause thus provided that pursuant to a "separate agreement" between Shinetec and Gosford, Shinetec had already agreed ("has agreed") to fund the first part of the Guaranteed Maximum Price of $185 million up to the aggregate of the "funding amount" being $37 million.
There was not, at the time of execution of the Contract, any such "separate agreement". Ultimately five months later, on 26 November 2020, Shinetec and Gosford executed a Loan Agreement.
The amount of the "funding amount" and Shinetec's concomitant obligation to procure the Letter of Credit the subject of these proceedings, was set out in Part A of the Contract as follows: "6A funding amount $37,000,000 (plus GST) and the parties acknowledge and agree that: (a) [Shinetec] shall provide a stand-by letter of credit (SBLC) in favour of [Gosford] from its parent company or nominee for the purpose of securing [Shinetec's] obligation to finance that part of the Works to which the funding amount applies; (b) [Gosford] must return the SBLC to [Shinetec] upon the earlier to occur of: (i) the termination of the Contract; (ii) the whole of the funding amount being deemed to have been paid to [Shinetec] in accordance with clause 37.2(d)." (Emphasis in original.)
There was, handwritten immediately below that passage: "Terms and Conditions of funding subject to the Loan agreement".
This was evidently a reference to the "separate agreement" contemplated by cl 37.1A and to the Loan Agreement ultimately executed by the parties on 26 November 2020.
Clauses 2 and 3 of the Loan Agreement provided: "ADVANCE Subject to the satisfaction (or waiver by [Shinetec]) of the conditions precedent set out in clause 8, [14] [Shinetec] will provide the Principal Sum under this Agreement as an advance by way of loan to [Gosford], which will be available to be drawn by [Gosford] on the date specified or referred to in this Agreement or at such other time or times as agreed by [Shinetec]: (a) upon and subject to the provisions of this Agreement; and (b) in reliance upon the representations made in this Agreement. PURPOSE [Gosford] must only apply the proceeds of the Principal Sum for the Loan Purpose or as otherwise approved in writing by [Shinetec]."
The "Principal Sum" was defined in that document to be $37.5 million, rather than the $37 million referred to in the Contract. Nothing appears to turn on this. The parties referred to the "funding amount" as being $37 million.
The "Loan Purpose" was defined to mean: "To assist with [Gosford's] construction funding for the Property".
As I have set out above, consistently with its obligations set out in Part A of the Contract, Shinetec had, in the meantime, on 10 July 2020, procured that the Bank issue the Letter of Credit.
The manner in which Gosford would draw down the "funding amount" of $37 million was set out in cl 37.1A(b) and cl 37.2 of the Contract. In effect, the procedure was that: 1. in each progress claim, Shinetec would identify that part of the progress claim which related to the Guaranteed Maximum Price of $185 million; [15] 2. the superintendent would then consider the progress claim and issue a progress certificate evidencing the superintendent's opinion of the monies due from Gosford to Shinetec pursuant to the progress claim; [16] 3. Gosford would be "deemed to have paid" Shinetec "the amount of the progress certificate as relates to the GMP" until such time as the whole of the "funding amount" of $37 million had thereby been applied.
The latter provision was contained in cl 37.2(d). As was set out in Item 6A in Part A of the Contract, one factor that would trigger Gosford's obligation to return the Letter of Credit to Shinetec was when the whole of the $37 million was "deemed to have been paid" to Shinetec "in accordance with clause 37.2(d)". [17]
By this means, the $37 million would progressively be advanced, or deemed to be advanced, by Shinetec to Gosford.
These provisions appear inconsistent with the corresponding provisions in the Loan Agreement which provided for Shinetec to make advances to Gosford in response to "Drawdown Notices" [18] and for the amount advanced to be repaid from project sales. [19] For present purposes, nothing appears to turn on this.
The total amount that Gosford was "deemed to have paid" Shinetec, and thus deemed to have drawn down under the Loan Agreement, was some $4.2 million.

Shinetec's case as articulated in its Commercial List Statement

In closing written submissions, Mr Zahra SC, who appeared with Mr Galvin for Shinetec, submitted, repeatedly, [20] that the Demand "was not made pursuant to any contractual entitlement" of Gosford under the Contract.
Mr McHugh SC, who appeared with Mr May for Gosford, submitted that such a submission was not available to Shinetec on the "pleadings" [21] as it sought to invoke what Mr McHugh described as an allegation of an "implied negative covenant" in the Contract, to the effect that Gosford was not entitled to make a demand under the Letter of Credit unless there was a contractual entitlement to do so under the Contract. Mr McHugh submitted that no such matter was articulated in Shinetec's Commercial List Statement.
At the outset of the hearing on 25 October 2023, and perhaps recognising the matter at [102], Mr Zahra sought to amend Shinetec's Commercial List Statement to add: 1. an allegation that it was an implied term of the Contract that Gosford was only entitled to make a demand pursuant to the Letter of Credit "when there was a contractual entitlement to do so" under the Contract; [22] and 2. the consequential allegation that the Demand was invalid because "there was no entitlement for it to be made" under the Contract. [23]
Mr McHugh said that he would be prejudiced if the amendment was allowed and was not in a position to meet it.
I refused leave on that basis.
In a note delivered following closing submissions at my invitation, Mr Zahra and Mr Galvin said: "Shinetec did not bring a breach of contract case and did not allege a breach of the negative stipulation in the Construction Contract. It was prevented from amending to plead and bring such a case. The Court will find no such case being advanced in any written or oral submission made on behalf of Shinetec."
In those circumstances, it is necessary to examine, with some care, the case articulated by Shinetec in its Commercial List Statement.
That case is that: 1. the Contract provided that the parties' rights and obligations were suspended until the "conditions precedent", as defined in the Contract, [24] were satisfied; [25] 2. the Contract provided that Shinetec was required to provide a stand-by letter of credit from its parent company or nominee for the purpose of securing its obligation to finance that part of the "Works" to which the "funding amount" (that is, the $37 million) applied; [26] 3. the parties entered the Loan Agreement; [27] 4. "by reason of the Loan Agreement" Shinetec "made finance available" of $37 million to Gosford; [28] 5. Gosford was only able to make a valid demand on the Letter of Credit "in circumstances where … Shinetec had failed to secure finance as required by Item 6A of Part A of the Construction Contract and as reflected in the Loan Agreement"; [29] 6. the Demand "was and remains invalid" because: [30] 1. the assertions made in the Demand "were false" [31] in that it was not true to assert in the Demand that: 1. the "conditions precedent" had been satisfied; 2. Shinetec had failed to perform its obligations under the Contract; 3. Shinetec had ceased construction work at the Site in or about October 2020; 4. Shinetec had unlawfully suspended all activity on the Site and abandoned work under the Contract; 5. Shinetec had committed various breaches, including fundamental breaches of the Contract; and 6. Gosford had suffered loss and damage of at least $67 million as a result of Shinetec's alleged breaches of the Contract; [32] and 1. Shinetec "provided finance in the amount of $37 million in connection with the construction of the development at the Site pursuant to the Loan Agreement". [33]
As can be seen, Shinetec alleged that the Contract provided that the parties' entitlements, liabilities and obligations were suspended until the satisfaction of the "conditions precedent" that I have set out at [81] above.
In its Commercial List Statement, Shinetec does not allege, in terms, that the "conditions precedent" were not satisfied although, as I have set out, Shinetec alleges that it was "false" for Gosford to have alleged in the Demand that the "conditions precedent" had been satisfied.
In its submissions, Shinetec contended that none of the conditions precedent had been satisfied. That submission was seemingly directed to its case, as articulated in the Commercial List Statement, that the Demand falsely claimed that they had been.
But the operative part of the Commercial List Statement, that I have summarised, does not assert a link between any want of satisfaction of the conditions precedent and the invalidity of the Demand, save for the alleged falsity of the allegations made in the Demand.
Under the heading "Nature of Dispute", Shinetec had contended earlier in the List Statement that: "[Gosford] was only entitled to make demand on the stand-by letter of credit if relevant conditions precedent were satisfied, including a failure by [Shinetec] to secure finance as required by Item 6A of Part A of the Construction Contract …". [34]
This is the only assertion in the Commercial List Statement concerning Gosford's "entitlement" to make the Demand by reason of the satisfaction of the conditions precedent.
But the conditions precedent, as defined in the Contract, were not directed to the "funding amount" of $37 million. They were directed to Gosford's securing of the "finance amount" being the balance of $148 million required to satisfy the Guaranteed Maximum Price of $185 million. Shinetec's obligation concerning the $37 million finance was not one of the conditions precedent specified in the Contract. [35] It was simply one of Shinetec's obligations. The contention set out at [113] is awkwardly worded, but appears intended to convey, consistently with what follows, that Gosford was only entitled to make demand under the Letter of Credit if Shinetec failed to "secure finance" of the $37 million.
Shinetec does not contend in its List Statement that it was not obliged to make funding available until the conditions precedent, as defined in the Contract, were satisfied, and that Gosford was, for that reason, not entitled to make the Demand. On the contrary, although in submissions Shinetec contended that none of the conditions precedent had in fact been satisfied and that its obligations under the Contract were for that reason "suspended", its case as articulated in its Commercial List Statement is that it had in fact "provided finance" of $37 million; and that the Demand was, for that reason, invalid.
In those circumstances, and leaving aside the question of the alleged falsity of the allegations made in the Demand, I am unable to see a link between any want of satisfaction of the conditions precedent and Shinetec's contention that the Demand "was and remains invalid".
Shinetec's case focused on the contention that, by entry into the Loan Agreement, Shinetec provided the $37 million finance and that the Demand "was and remains invalid" for that reason.
Thus, in his reply address, Mr Zahra said: "… there's no valid demand. It's invalid because of, importantly … Shinetec had provided the finance of $37 million. That's the case that was pleaded. That's the case I opened on a great detail in writing and also orally, and as the case we have prosecuted and closed on".
That reflected the following submission made in opening, and which Mr Zahra and Mr Galvin emphasised in closing: "In circumstances where clause 37.1A and Item 6A of Part A of the Construction Contract expressly provided that the [Standby Letter of Credit] was to be provided for the purposes of securing [Shinetec's] obligation to finance the first part of the GMP up to $37 million, a necessary precondition to the making of a valid demand on the [Standby Letter of Credit] by [Gosford] pursuant to the terms of the Construction Contract was a failure by Shinetec to provide such finance."
To repeat, Shinetec's case is that it did "provide" the $37 million finance and did so by entering into the Loan Agreement; and thus that Gosford was not entitled to issue the Demand on the Letter of Credit because Shinetec had performed the obligation for which the Letter of Credit was security.
It was not Shinetec's case that Gosford was not entitled to make the Demand because Shinetec had performed, or had commenced to perform, its obligation to finance the $37 million by advancing, or being deemed to have advanced, the $4.2 million to which I referred at [100] above. A case may have been available to Shinetec that it had so commenced to "fund" or "finance" the $37 million but had been prevented from advancing the whole $37 million by reason of some event or events occurring in the underlying project for which it was not responsible; and for that reason Gosford had no entitlement to make the Demand.
But that is not the case Shinetec has sought to advance in its Commercial List Statement. Any such case would have required far greater consideration than occurred in these proceedings to the parties' conduct in relation to the project underlying the Contract.
For example, my attention was not directed to any evidence explaining why no more than $4.2 million was advanced, or deemed to have been advanced.
Mr McHugh made a passing reference in oral submissions to a dispute between the parties as to whether Shinetec "should have advanced the money that would have allowed the construction certificate to be issued". This matter was not further explored. Indeed, Mr Zahra and Mr Galvin referred in closing written submissions to there having been "no final determination of the substantive rights and obligations, claims and counterclaims between the parties under the Construction Contract". They observed that "there will be no such determination in these proceedings (other than in relation to the question of any entitlement to make the Demand)".

Did Shinetec fulfil its funding obligations by entry into the Loan Agreement?

The vital question thus is whether, as Shinetec contends, it had by entering the Loan Agreement, and without more, "provided" the $37 million finance.
It is important to note the words used in the relevantly operative clauses of the Contract. Clause 37.1A speaks of Shinetec's agreement "to fund" the $37 million. Item 6A in Part A speaks of Shinetec's "obligation to finance" the $37 million. Thus, looking at the words used in cl 37.1A of the Contract, the question is whether, for the purposes of cl 37.1A of the Contract when read with Item 6A of Part A of the Contract, by entry into the Loan Agreement, Shinetec performed its agreement "to fund" [36] or "obligation to finance" [37] that part of the Guaranteed Maximum Price of $185 million constituted by the "funding amount" of $37 million.
This may be contrasted with the reference in the first of the defined conditions precedent to Gosford "securing finance", presumably from someone other than Shinetec, of the "finance amount" of $148 million. [38]
The expression "secure finance", seemingly borrowed from this different part of the Contract, is incorrectly used in the Commercial List Statement to describe the nature of Shinetec's obligations concerning the $37 million. [39]
But Shinetec's obligation under the Contract was not merely to "secure finance" in the sum of $37 million. It was to "fund" and "finance" the $37 million.
That is made clear by the reference in subpar (b) of Item 6A to Gosford's obligation to return the Letter of Credit on the earlier of, relevantly, "the whole of the funding amount being deemed to be paid to [Gosford] in accordance with clause 37.2(d)" (emphasis added).
That clause contemplates that, until the funding amount of $37 million was "paid", that is actually or deemed to be advanced, Gosford may retain, and thus be entitled to call on the Letter of Credit, assuming it was otherwise able to do so. As Gosford submitted, that reflected the manifest commercial purpose of the Letter of Credit, which was to ensure that Gosford did not bear the risk that Shinetec would fail to advance funds, pending determination of any underlying dispute.
If by entry into the Loan Agreement Shinetec thereby, and without more, "funded" [40] the payment of the $37 million and satisfied its "obligation to finance" [41] the $37 million, there would be no need for the Letter of Credit to endure beyond the date on which the Loan Agreement was executed. But the Contract did not contemplate, let alone provide for the Letter of Credit to be returned upon execution of the Loan Agreement. Instead, the Contract provided that Gosford return the Letter of Credit on the earlier termination of the Contract or, as I have said, the deemed payment of "the whole of the funding amount".
Further, if Shinetec's entry into the Loan Agreement, without more, discharged its "obligation to finance that part of the works to which the funding amount applies", the Letter of Credit would secure no more than Shinetec's obligation to enter into the Loan Agreement, but not its obligation to perform it.
Further, the wording of cl 37.1A makes clear that the parties contemplated that the Loan Agreement would be executed at the same time or prior to execution of the Contract. Thus, the clause recited that by a "separate agreement" Shinetec "has agreed" to "fund" the $37 million. If, as the parties obviously contemplated, they had then executed the Loan Agreement, the subsequently issued Letter of Credit would have stood as security for an obligation already performed.
In any event, the Loan Agreement does not, on its face, purport to constitute the "funding" or the "financing" of the $37 million. It is a promise that Shinetec "will provide" the $37 million.
For those reasons, my conclusion is that the answer to the question at [126] is that Shinetec had not, by entering the Loan Agreement, and without more, "provided" the $37 million finance.

What remains of Shinetec's case?

For these reasons, I find that Shinetec had not "provided finance in the amount of $37 million in connection with the construction of the development at the Site pursuant to the Loan Agreement" [42] and thus that the Demand is not for that reason invalid.
What remains for consideration is whether the Demand is invalid by reason of the "false" statements alleged to be in it.

The Demand

Shinetec contends that the Demand contains statements that are "false".
As I have set out, the statements in the Demand that are said to be false are particularised in the Commercial List Statement as follows: [43] "(a) the 'conditions precedent' under clause 3 of the Formal Instrument of Agreement forming part of the [Contract] had been satisfied; (b) Shinetec had failed to perform its obligations under the [Contract]; (c) Shinetec had ceased construction work at the Site in or about October 2020; (d) Shinetec had unlawfully suspended all activity on the Site and abandoned the work under the [Contract]; (e) Shinetec had committed various breaches, including fundamental breaches, of the [Contract]; (f) [Gosford] had suffered loss and damage of at least A$67 million as a result of Shinetec's alleged breaches of the [Contract]."
Shinetec contends these statements are false in the sense of being "factually incorrect". As I have said, Shinetec does not contend that the statements were made knowingly falsely. That is, it is not alleged the statements were made fraudulently.
In its Commercial List Summons, Shinetec seeks a declaration that the Demand "is invalid and of no effect". That may have suggested that Shinetec's contention was that the Demand was invalid for all purposes, and not only as between Shinetec and Gosford. Indeed, at one point, Mr Zahra submitted that "our case is that the Demand was invalid full stop".
However, Mr Zahra and Mr Galvin made clear that Shinetec's "case did not seek to impugn the validity of the Demand as against the Bank of China".
Thus, in closing written submissions, Mr Zahra and Mr Galvin said: "It should be noted at the outset that Shinetec does not cavil with the propositions that (1) a bank in the position of the Bank of China, which is presented with an apparently compliant demand on a standby letter of credit, is required to pay; and (2) on the face of it, subject to the identity point involving the Receivers & Managers, the Demand was (as between [Gosford] and Bank of China) sufficient to engage the [Standby Letter of Credit]. That was made clear in opening and Shinetec does not resile from that position."
This concession was correctly made. As between an issuer and a beneficiary, the existence of "factually incorrect" statements in a demand under a Letter of Credit are, absent fraud, immaterial.
Further, ISP98 r 1.06 provides that "an issuer's obligations [under a standby letter of credit] depends on the presentation of documents and an examination of required documents on their face".
As issuers of letters of credit "deal in documents not goods", an issuer of a letter of credit is bound to pay on presentation of conforming documents even if the issuer is actually aware of a dispute between the underlying parties. That is because the commercial purpose of letters of credit being to give the beneficiary an assured right to be paid regardless of any underlying dispute; with the exception that "fraud unravels all". [44]
Indeed, at the conclusion of oral argument, Mr Zahra sought leave to amend Shinetec's Summons to add a declaration that the Demand was invalid and of no effect as between Shinetec and Gosford.
The submission set out at [145] continued: "Fundamentally, however, Shinetec's position is that [Gosford] and the Receivers & Managers had no entitlement under the Construction Contract to make the Demand and it should not have been made."
I have not accepted Shinetec's "pleaded" case as articulated in its Commercial List Statement, that for the reasons there contended Gosford and the Receivers "had no entitlement under the Construction Contract to make the Demand".
I am unable to see how any false, but not fraudulent, statements made in the Demand can take Shinetec's case any further.

The result

Shinetec's claim against Gosford fails and must be dismissed.

The nature of the Bank's obligations - the Rules on International Standby Practices - ISP98

I turn now to Gosford's claim against the Bank.
As I have said, the Letter of Credit was stated to be subject to the International Standby Practices ISP98.
ISP98 became effective on 1 January 1999. It was issued by the Institute of International Banking Law & Practice, Inc ("IIBLP") following the deliberations of the working group of the Banking Commission of the International Chamber of Commerce ("ICC").
Its preface states: "The International Standby Practices (ISP98) reflects generally accepted practice, custom, and usage of standby letters of credit. It provides separate rules for standby letters of credit in the same sense that the Uniform Custom and Practice for Documentary Credits (UCP) … do for commercial letters of credit."
Its official text is English, although it had been translated into a number of languages, including Chinese.
It is accompanied by "The Official Commentary on the International Standby Practices" (the "Official Commentary"), [45] also issued by the IIBLP.
I return below to the status of the Official Commentary and the use to which it may be put in construing ISP98.

General principles

ISP98 sets out the following "General Principles": 1. a standby is an "irrevocable, independent, documentary and binding undertaking when issued and need not so state"; [46] 2. the enforceability of the issuer's obligations under a standby does not depend on the issuer's right or ability to obtain reimbursement from the applicant; [47] 3. an issuer's obligations depend on presentation of documents and an examination of required documents "on their face"; [48] 4. an issuer is not responsible for performance or breach of any underlying transaction or for the accuracy, genuineness or effect of any document presented under the standby. [49]

Obligations of issuers of standby letters of credit

ISP98 specifies the issuer of a standby, such as the Letter of Credit, to undertake the following obligations: 1. honour a presentation that appears "on its face" to comply with the terms and conditions of the standby; [50] 2. honour a "complying presentation made to it by paying the amount demanded of it at sight" by "timely accepting the draft"; [51] 3. an issuer acts in a "timely manner" if it pays "at sight" or gives notice of dishonour "within the time permitted for examining the presentation and giving notice of dishonour"; [52] and 4. an issuer honours "by paying in immediately available funds in the currency designated in the standby". [53]

Timely notice of dishonour

As to the "timely notice of dishonour", ISP98 provides that: 1. notice of dishonour must be given within a time after presentation of the documents "which is not unreasonable"; [54] 2. notice given within three business days is deemed to be not unreasonable and notice given beyond seven business days is deemed to be unreasonable; [55] 3. time for such calculation begins "on the business day following the business day of presentation"; [56] and 4. unless the standby otherwise expressly states a shortened time within which notice of dishonour must be given (and the Letter of Credit did not so provide), "the issuer has no obligation to accelerate its examination of a presentation". [57]
Thus, the "outer limit" [58] for the Bank to pay or give notice of dishonour under the Letter of Credit was seven business days after presentation. The Demand was presented on Friday 30 July 2021. Subject to the invocation of ISP98 r 6.11, to which I will return, the Bank was obliged to dishonour the Letter of Credit by close of business on Tuesday 10 August 2021; or pay. A binary choice.

The proper law of the Letter of Credit

As I have said, the Letter of Credit did not have a choice of law clause.
In those circumstances, the proper law of the Letter of Credit is to be determined by either consideration of the parties' inferred intention, or consideration of the system of law with which the Letter of Credit has the closest and most real connection. [59]
As the Bank has pointed out, there is difficulty in inferring a mutual intention to the parties as to the proper law to be applied to the Letter of Credit as: 1. the Letter of Credit was issued unilaterally by the Bank on the application of Shanxi; 2. Gosford was a mere recipient of the Letter of Credit and had no opportunity to negotiate its terms with the Bank; and 3. there was no relationship or interaction between Gosford and the Bank until after the Letter of Credit had already been issued.
It has also been held that, in the case of a letter of credit, if there is no express choice of law, the governing law is best determined by applying the closest and most real connection test. [60]
There is some connection between the Letter of Credit and New South Wales. The beneficiary of the Letter of Credit, Gosford, is or was resident and trading in New South Wales; the project in connection with which the Letter of Credit was issued was to be undertaken in Gosford, in New South Wales; and the Letter of Credit was issued as security for Shinetec's obligations under the Contract relating to that project.
However, the Letter of Credit has far stronger connections with China.
The place of issue of the Letter of Credit was China, a factor that has been described as a highly significant "connecting factor". [61]
Further, r 1.08(d) of ISP98 provides that: "An issuer is not responsible for … observance of law or practice other than that chosen in the standby [62] or applicable at the place of issuance."
The Letter of Credit required presentation of demand in China.
Payment under the Letter of Credit was to be made in China. Thus, China was the place of performance of the Letter of Credit, a factor that Mr McHugh accepted is usually of significant weight. [63]
These factors point, overwhelmingly in my opinion, to the conclusion that the proper law of the Letter of Credit is that of China.

Transfer by operation of law

The following rules appear in ISP98 under the heading "Transfer by operation of law".
Rule 6.11 provides: "Where an heir, personal representative, liquidator, trustee, receiver, successor corporation, or similar person who claims to be designated by law to succeed to the interests of a beneficiary presents documents in its own name as if it were the authorised transferee of the beneficiary, these Rules on transfer by operation of law shall apply."
Rule 6.12 provides: "Additional document in event of drawing in successor's name A claimed successor may be treated as if it were an authorised transferee of a beneficiary's drawing rights in their entirety if it presents an additional document or documents which appear to be issued by a public official or representative (including a judicial officer) and indicate: (a) that the claimed successor is the survivor of a merger, consolidation, or similar action of a corporation, limited liability company, or other similar organisation; (b) that the claimed successor is authorised or appointed to act on behalf of the named beneficiary or its estate because of an insolvency proceeding; (c) the claimed successor is authorised or appointed to act on behalf of the named beneficiary because of death or incapacity; or (d) that the name of the named beneficiary has been changed to that of the claimed successor."
Rule 6.13 provides: "An issuer or nominated person which receives a presentation from a claimed successor which complies in all respects except for the name of the beneficiary: (a) may request in a manner satisfactory as to form and substance: (i) a legal opinion; (ii) an additional document … from a public official; (iii) statements … regarding the status of the claimed successor as successor by operation of law…".
Rule 6.13(b) provides that where there has been a request for documentation under r 6.13(a), an issuer's obligation to give notice of dishonour is suspended until the issuer receives the requested documentation.
The Bank accepts that "apart from the question of the name", the Demand was compliant with the requirements of the Letter of Credit.
In the circumstances I have described above, and because the perceived discrepancy between the beneficiary named in the Letter of Credit (The Gosford Pty Limited) and the name of the presenter of the Demand (it was signed by the Receivers on behalf of The Gosford Pty Ltd (Receivers & Managers Appointed)), the Bank took the view that the rules in ISP98 dealing with "Transfer by operation of law" were engaged.
Thus, on 3 August 2021 the Bank made the SWIFT enquiry of Macquarie Bank set out at [56] above seeking documents "regarding the status of the claimed successor". It did this purportedly pursuant to r 6.13(a) of ISP98.
The Bank claims that by reason of r 6.13(b) of ISP98, its obligation to honour or give notice of dishonour under the Letter of Credit was suspended until it received the requested documentation.
Macquarie Bank was enjoined from responding to that enquiry by reason of the orders made by Lindsay J on 2 August 2021 and, the following day, the Chinese Court made the Civil Ruling suspending payment under the Letter of Credit, which ruling was notified to the Shanxi branch of the Bank by the Enforcement Assistant Notice.
The critical question as between Gosford and the Bank is whether it was entitled to take this step. That involves the question of whether r 6.11 of ISP98 was engaged.

Construing ISP98

The Letter of Credit incorporates the terms of ISP98 by reference. Those terms thus form part of the terms of the contract represented by the Letter of Credit.
It is common ground that ISP98 is a transnational set of rules that is intended to apply uniformly across the world. As the Bank has submitted, ISP98 is designed to facilitate harmonised practice in respect of standby letters of credit.
ISP98 contains its own "Interpretative Principles". Thus r 1.03 provides: "1.03 Interpretive principles These Rules shall be interpretated as mercantile usage with regard for: (a) integrity of standbys as reliable and efficient undertakings to pay; (b) practice and terminology of banks and businesses in day-to-day transactions; (c) consistency within the worldwide system of banking operations and commerce; and (d) worldwide uniformity in their interpretation and application."
Rule 1.11 provides, relevantly: "1.11 Interpretation of these Rules (a) These Rules are to be interpreted in the context of applicable standard practice."
Thus, it has been said, in respect of the Uniform Customs and Practice for Documentary Credits UCP600, which provides a corresponding regime for documentary credits as ISP98 provides for standby letters of credit that: "English courts have repeatedly emphasised that in conducting that exercise of construction, regard must be had to the UCP's international character, and to its purpose and function, facilitating international cross-border trade". [64]
Similarly in Fortis Bank SA/NV v Indian Overseas Bank, [65] Thomas LJ said: In my view, a court must recognise the international nature of the UCP and approach its construction in that spirit. It was drafted in English in a manner that it could easily be translated into about 20 different languages and applied by bankers and traders throughout the world. It is intended to be a self-contained code for those areas of practice which it covers and to reflect good practice and achieve consistency across the world. Courts must therefore interpret it in accordance with its underlying aims and purposes reflecting international practice and the expectations of international bankers and international traders so that it underpins the operation of letters of credit in international trade. A literalistic and national approach must be avoided." [66]
Nonetheless, as the Bank has pointed out, the parties' Chinese law experts, Professor Gao for the Bank and Dr Godwin for Gosford, agreed that under Chinese law any interpretive question as to the meaning and effect of ISP98 is to be determined by reference to text, context and purpose. The Bank relied upon that to support the submission that the "approach to ISP98 would be the same" whether the Letter of Credit was governed by Chinese or NSW law.
The concepts of text, context and purpose are central to the principles in Australian law concerning the construction of contracts.
Thus, in the familiar statement in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd, [67] it was stated: "The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context … and purpose."
It has been said in relation to Australian law: "… the only relevant meaning is that which the text conveys. This follows from the need to ascertain the intention expressed in the document. Although … context and purpose are relevant, ultimately the court must attribute meaning to the words actually used." [68] (Emphasis in original.)
Those observations were not made in respect of ISP98 which, I have found, is governed by Chinese law. In view of the experts' agreement as set out at [193], they are nonetheless apposite.
Assuming that a "literalistic" and "national" (whatever that means) approach is to be avoided and accepting the desirability of worldwide uniformity in the construction of ISP98, regard must be had to the words actually used in ISP98.
The Bank drew attention to a number of authorities in aid of a submission that international instruments, including ISP98, are to be interpreted in a more "liberal manner" than normal commercial documents. [69]
In Applicant A v Minister for Immigration and Ethnic Affairs, [70] McHugh J said, speaking of the Convention Related to the Status of Refugees, that such documents are the result of negotiation and compromise and that international instruments often fail to exhibit the precision of domestic legislation, commonly for reasons of multinational political comity, and that for those reasons: "… international instruments should be interpreted in a more liberal manner than would be adopted if the court was required to construe exclusively domestic legislation." [71]
Nonetheless, as Dawson J said in the same case, speaking of a rule under the Vienna Convention on the Law of Treaties: "Under that rule, the starting point must be the text of the treaty. Of course, the text of a treaty is often couched in fairly general terms due to differences in language and legal conceptions among those to whom it is to be addressed and as part of an attempt to reach agreement among diverse nations. Accordingly, technical principles of common law construction are to be disregarded in construing the text." [72]

The Official Commentary

The Bank also sought to call in aid of the proper construction of rr 6.11 to 6.13 of ISP98 a number of observations made about those rules in the Official Commentary.
The question thus arises as to the status of the Official Commentary and the extent to which it can be used in order to construe the rules in ISP98.
After judgment was reserved, I invited submissions from Gosford and the Bank on that topic.
Neither Gosford nor the Bank was able to locate any decisions in Australian or foreign courts that have referred to the Official Commentary to resolve a question of construction of ISP98. Nor have I.
The preface to ISP98 refers to the Official Commentary and states: "The ISP is drafted as a set of rules intended for use in daily practice. … While it is recognised that specific rules would benefit from explanatory comments, such comments are not appended to the ISP because the resulting work would be too cumbersome for daily use. Instead, introductory materials and Official Comments are available in the Official Commentary on the International Standby Practices (ISP98)."
As the Bank submitted, the preface makes explicit reference to, and recommends reading, ISP98 in conjunction with the Official Commentary.
The Bank submitted that: "In this regard ISP98 appears to incorporate by reference the contents of the [Official Commentary] having only excluded explanatory comments from the text of ISP98 for reasons of procedural economy and the ease of day to day use in international transactions".
I think it overstates matters to say that ISP98 incorporates by reference the Official Commentary. Indeed, the Bank submitted only that it "appears" to do so. What the preface states is that the Official Commentary is "available" as a statement of "Official Comments" in relation to ISP98.
It may be that the correct conclusion is that the Official Commentary is available as extrinsic evidence, resort to which could be had were there any ambiguity or uncertainty in the words used in ISP98. But I think Gosford was correct to submit that the Official Commentary could have no more than a limited role of aiding in the construction of ISP98, and could not prevail or change what appears from the text of ISP98.
As Gosford submitted, the Letter of Credit incorporates by reference the terms of ISP98 and makes no mention of the Official Commentary.
And the transnational nature of ISP98 surely would require that it is able to be construed in accordance with its terms and without the need also to turn to the Official Commentary.
In any event, in view of my conclusions as to the nature of the information in fact before the Bank in this case, it is not necessary to express any final view about these matters.

Was r 6.11 engaged?

To repeat, r 6.11 of ISP98 provides: "Where an heir, personal representative, liquidator, trustee, receiver, successor corporation, or similar person who claims to be designated by law to succeed to the interests of a beneficiary presents documents in its own name as if it were the authorised transferee of the beneficiary, these Rules on transfer by operation of law shall apply."
Looking at the text of r 6.11, it is enlivened only if documents are presented to the issuer of the standby by a party in one of the recited categories (here a receiver) who: 1. "claims to be designated by law to succeed to the interests of a beneficiary"; 2. presents those documents "in its own name"; and 3. does so "as if it were the authorised transferee of the beneficiary"
As to the first element, the Bank submitted the rule does not require that the presenting party claim in the demand, in terms, to be a successor to the beneficiary, and that it is sufficient to enliven the rule that the demand asserts, in effect, that the person making the demand stands in the place of the beneficiary.
That may be so. As the Bank pointed out, in Hawkesbury Development Co Ltd v Landmark Finance Pty Ltd, [73] Street J said that a "valid receivership and management will ordinarily supersede, but not destroy, the company's own organs through which it conducts its affairs". [74]
There is a further point. Rule 6.11 refers to the "documents" (plural) that the relevant party "presents" to the issuer of the standby. Such "documents" must include all the documents so presented, including any documents, beyond the demand itself, required by the standby to be presented by the beneficiary to the issuer.
The question is whether any difference between the beneficiary in the Letter of Credit, "The Gosford Pty Limited", and the name or identity of the claimant in the Demand was sufficient to bespeak, so far as the Bank was concerned, a "claim" by the Receivers "to be designated by law to succeed" to Gosford's interests under the Letter of Credit.
The Bank accepted that a "'name change' would, without more, not be considered to be a "succession" as a matter of Australian law because the underlying corporation remains the same".
However, the Bank submitted "that the terms of ISP98 indicate that a name change is precisely the situation contemplated for succession" and that this was because "it is the name in the face of the document that is important to the discharge of the parties' obligations under the standby letter of credit".
In that regard, the Bank pointed to the following passage from the Official Commentary: "[Rule 6.11] deals with the situation where another person is a successor operation of law entitled to act for the named beneficiary. The event triggering the succession may be death, incapacity, insolvency, bankruptcy, incompetence, a merger or name change, or some similar situation." [75] (Emphasis added.)
As r 6.11 contemplates a party presenting documents "in its own name", it "may be", as the Official Commentary states, that a "change of name" will itself bespeak a "claim" by the presenting party to be "designated by law to succeed to the interests of the beneficiary". But the rule does not state, expressly or by implication that this will necessarily be so. Nor does the Official Commentary.
Here, the Demand was expressed to be made by "Gosford", a term defined in the Demand to be "The Gosford Pty Limited (ACN 630 253 557)". The defined term "Gosford" was used repeatedly throughout the Demand and, critically, under the heading "DEMAND".
The Demand required that payment be made to "Gosford's representative" by EFT to an account in the name "The Gosford Pty Limited (Receivers and Managers Appointed)"; thus, making clear that the Receivers were Gosford's representative, and not persons claiming to succeed to Gosford's interests.
The Demand was signed by the Receivers, each stating to be a "Joint Receiver & Manager" of Gosford. But in light of the matters in the two preceding paragraphs, I do not see how that involves an assertion by the Receivers to the status of "claimed successor".
In any event, and assuming, contrary to those conclusions that the Demand should be read as coming from an entity with a different name to the name of the beneficiary in the Letter of Credit, the Receivers made clear in a communication required by the Letter of Credit to be made to the Bank "for the purpose of identification" that they were not claiming to be successors to the interests of Gosford.
It will be recalled that the Letter of Credit required that: "For the purpose of identification, any such demand in original should be presented to us through your bank confirming that the signatures thereon are authentic with their confirmation by authenticated SWIFT." [76]
In the Demand it was stated: "Gosford's bank, Macquarie Bank, has duly confirmed via SWIFT that the signatures on the letter of demand are authentic." [77]
Macquarie Bank sent the SWIFT communication on 30 July 2021, the day the Demand was delivered. It read: "In accordance with the terms of the [Letter of Credit], for the purpose of identification, as the bank for the named beneficiary, The Gosford Pty Limited (ACN 630 253 557) … on a bank-to-bank basis via SWIFT, we confirm that the signatures on the attached original demand made by the beneficiary The Gosford Pty Limited (ACN 630 253 557) under the [Letter of Credit] have been sighted by us and are authentic signatures of the officers of The Gosford Pty Limited (ACN 630 253 557)". (Emphasis added.)
Thus, at least one working day before the Bank sent its 3 August 2021 SWIFT communication to Macquarie Bank [78] purportedly under ISP98 r 6.13(a) seeking documents "regarding the status of the claimed successor as successor by operation of law", Gosford's bank, Macquarie Bank, had "for the purpose of identification" confirmed that the signatures on the Demand, that is those of the Receivers, were "authentic signatures of the officers" of Gosford.
That made clear to the Bank that the Receivers were not claiming to be successors to Gosford, but to be "officers" of Gosford. As Gosford submitted, the SWIFT communication from Macquarie Bank "was the relevant document and method for ensuring that the demand that was being presented was one which was made by the beneficiary named in the" Letter of Credit.
Mr Owens submitted in reply that "the requirement in the letter of credit in relation to the confirmation required from a bank in the position of Macquarie Bank was only as to authenticity of signatures, in other words not fraudulently applied signatures" and that "this is the limit of the representation made by Macquarie Bank, and the limit of the function of that provision in the letter of credit".
That submission elides two matters.
First, it may be that a purpose of the requirement in the Letter of Credit that Gosford's bank confirm that the signatures on any demand were "authentic" was to confirm to the Bank, as the issuer of the Letter of Credit, that the signatures on any demand were "not fraudulently applied". But it was also "for the purpose of identification". [79]
Second, the Macquarie Bank 30 July 2021 SWIFT communication went further, and confirmed that the signatures on the Demand were the authentic signatures of "officers" of Gosford. That may not have been called for by the Letter of Credit. But it was a vital part of the documentary material placed before the Bank. It confirmed that the Receivers were not claiming to be successors to Gosford.
It follows from this that r 6.11 was not enlivened. The Bank was not entitled to make a request for further documents under r 6.13, as it purported to do in its 3 August 2021 SWIFT communication to Macquarie Bank. The Bank's obligations to honour or give notice of dishonour were, for those reasons, not suspended.
Rule 6.12 takes the matter no further, as it is only relevant if the presenting party is a "claimed successor" for the purpose of r 6.11.
As the Bank accepts that the Demand was otherwise compliant, and subject to the matters to which I will now turn concerning the effect of the Civil Ruling in the Chinese Court, it follows that Gosford is entitled to judgment against the Bank.

The effect of the Civil Ruling and Enforcement Assistance Notice

Mr Owens and Mr Kay Hoyle submitted that "even if this Court were to find that [the Bank] had no right to request additional documents pursuant to Rule 6.11 - 6.13 of ISP", there was no breach by the Bank of its obligations under the Letter of Credit because: 1. "the earliest point in time at which [the Bank] could have breached the [Letter of Credit] was 11 August 2021" (the first business day after 10 August 2021, which was seven business days after presentation); [80] 2. by then the Bank, or at least its Shanxi branch, had been ordered by the Chinese Court to suspend payment under the Letter of Credit; it being agreed between the experts that the Shanxi branch of the Bank, if not the Bank itself, remains bound by the Civil Ruling; and 3. "any failure by the [Shanxi branch of the Bank] to make payment does not amount to a breach of the [Letter of Credit]". [81]
Mr McHugh pointed out that the Civil Ruling was not expressed to prevent the Bank, or its Shanxi branch, from giving notice of dishonour under the Letter of Credit. The Civil Ruling was expressed to "suspend payment" under the Letter of Credit. Mr McHugh submitted that, leaving aside the effect of the Civil Ruling that the Bank or its branch "suspend payment", it followed from the conclusion that the Bank was not entitled to invoke r 6.11 of ISP98, and from the fact that the Bank did not give notice of dishonour under the Letter of Credit by 10 August 2021 (it not being enjoined by the Civil Ruling from doing so), that Gosford had an accrued right in debt against the Bank in the sum of $37 million.
In closing oral submissions, Mr Owens submitted that it was not open to Gosford to argue for an accrued right in debt as, in its Commercial List Cross Claim List Statement, it had only claimed "damages of AUD37 million and consequential loss" arising from the Bank's alleged breach of its obligations under the Letter of Credit. [82] Mr Owens submitted that had he been aware that Gosford contended for an accrued right in debt, his conduct of the concurrent evidence of Professor Gao and Dr Godwin the following day would have been different, and that he would have sought to adduce evidence from Professor Gao as to the effect of the Civil Ruling in relation to any such accrued debt.
But, as Mr McHugh pointed out, in its Amended Commercial List Cross-Summons, Gosford claimed both: 1. "an order that [the Bank] pay to [Gosford] the sum of AUD37 million in accordance with [the Letter of Credit]" and 2. "in the alternative, an order that [the Bank] pay to [Gosford] damages in the sum of AUD37 million and consequential losses".
Further, in the Amended Commercial List Cross-Summons itself, Gosford asserted that the Letter of Credit gave rise to a present right to payment. [83]
Those matters made clear enough, in my opinion, that Gosford was making a claim both in debt and for damages.
Further, Mr McHugh made very clear in his opening submissions, the day before the concurrent evidence of Professor Gao and Dr Godwin, that Gosford claimed to have an accrued right to payment under the Letter of Credit, assuming the Bank was not entitled to engage r 6.13 of ISP98.
And, in their closing written submissions, Mr Owens and Mr Kay Hoyle submitted that as the Bank was subjected to the Civil Ruling prior to 10 August 2021, "it does not matter that Gosford now tries to characterise its right as an accrued right". [84]
In any event, the wider question is what this Court should do in light of the Civil Ruling, having found that the Bank was not entitled to engage r 6.13 and call for further documents, and thus that its obligations under the Letter of Credit were not suspended by reason of r 6.13(b) of ISP98.
As to the effect of the Civil Ruling, Professor Gao and Dr Godwin expressed conflicting opinions. For example: 1. Dr Godwin opined that the Civil Ruling bound only the Shanxi Branch of the Bank (to which, in terms, it was directed [85] ) whereas Professor Gao said "the bank itself or even branches of other banks, including their overseas branches, have to observe the ruling"; and 2. Dr Godwin opined that a "foreign judgment" including a judgment of this Court would constitute a circumstance under which the Chinese Court would "consider it necessary that the execution [of the Civil Ruling] be suspended or terminated" under identified Articles of Chinese law; [86] whereas Professor Gao expressed the view that "foreign judgment or rulings will not affect the decision or a ruling of a Chinese court, because court rulings are a matter of sovereignty or public policy" and that under Chinese law "a foreign judgement has no legal force within the [Peoples' Republic of China] before it is recognised".
One matter on which the experts were agreed is, as I have said, that the Civil Ruling is binding on, at least, the Shanxi Branch of the Bank. Another is that the Civil Ruling is, under Chinese law, in the nature of an interim and not final ruling.
Both Gosford and the Bank advanced arguments as to why I should prefer their expert over the other. Both Professor Gao and Dr Godwin are highly qualified experts in matters of Chinese law. I cannot see any basis on which I could or should come to any overall conclusion about their evidence such as would enable me unreservedly to accept the opinions of one and reject those of the other. Nor do I think it would be satisfactory to endeavour to resolve this matter on the basis of onus of proof.
There is longstanding English authority that: "English courts will not enforce performance or give damages for non-performance of an act required to be done under a contract, whatever be the proper law of the contract, if the act would be illegal in the country in which it is required to be performed." [87]
And: "A contract, whether lawful by its proper law or not, is, in general, invalid insofar as … the performance of it is unlawful by the law of the country where the contract is to be performed." [88]
In that regard, it has been said that: "… an English court will not enforce a contract where performance of the contract is forbidden by the law of the place where it must be performed." [89]
It has been stated in Australia that the "rule in this form has been accepted as orthodoxy". [90]
The Bank did not dispute that, as Gosford submitted, entry of judgment against a defendant does not "in terms, impose an obligation upon the defendant to do something". The consequence is that "unlike a decree in equity, which consisted of a command addressed to the defendant, a common law judgment could not be enforced by the processes of contempt, the writ of attachment and the writ of sequestration", but rather by "writ of fieri facias, which authorised the sheriff to levy on the property of the defendant for the judgment amount and costs". [91]
Thus, the mere entry of judgment in favour of Gosford against the Bank would not, itself, cause the Bank to contravene the Civil Ruling.
The Bank also accepted that any response it made under compulsion of Australian law to steps taken by Gosford to enforce any judgment would not itself cause it to contravene the Civil Ruling.
I am inclined to resolve this difficult matter by entering judgment in favour of Gosford against the Bank in the sum of $37 million plus interest, but to stay that judgment pending further approach by Gosford or the Bank to the Chinese Court, and pending Gosford taking steps to have the judgment recognised under Chinese law. The Bank submitted that this was "one way in which to deal with this issue".
However, I propose to give the parties an opportunity to consider these reasons and then to invite further submissions on this topic.

Conclusion

The parties should confer and agree on the steps that it is now necessary to be taken in the proceedings.

Endnotes

Plus GST.
Plus GST.
The Demand was dated 28 July 2021 but delivered on 30 July 2021.
As appears to be alleged in List Statement C2: see [113] - [115] below.
As alleged in List Statement C20.
As alleged in List Statement C27(b).
As alleged in List Statement C27(a).
See [154] below.
That is, Shinetec.
Society for Worldwide Interbank Financial Telecommunications.
Macquarie Bank is a defendant. It has entered a submitting appearance.
See [49] below.
To which I refer below: see [179] ff.
None of which are said to be relevant.
Clause 37.1A(b).
Clause 37.2(a).
See [89] above.
Clause 4.
Item 3 in the Schedule.
At pars 1(a), 2, 19, 22(a), 36 and 38.
Commercial List Statements are not, strictly, pleadings, as proceedings in the Commercial List are commenced by Summons, and not by Statement of Claim. Nonetheless a List Statement should define, and also confine, a party's case. As the parties referred to each other's "pleadings" I shall, where appropriate, do the same.
Proposed amended pars C18 and C23(d).
Proposed amended par C27.
See [81] above.
Par C16.
Par C17.
Par C19.
Par C20.
Par C23(a) - three other circumstances were identified but were either satisfied in fact or are no longer pressed.
Two other matters allegedly bespeaking invalidity were not pressed in closing submissions.
Par C27(a).
Par C27(a) when read with par C26.
Par C27(b).
And two other matters no longer pressed.
See [81] above.
The words in cl 37.1A(a).
The words in Item 6A.
See [81] above.
List Statement [A2] and [C23(a)]; see [108(5)] and [113] above.
Clause 37.1A.
Item 6A in Part A.
As alleged at C27(a) of the Commercial List Statement; see [108(6)] above.
At C26.
United City Merchants (Investments) Ltd v Royal Bank of Canada (The American Accord) [1983] 1 AC 168 at 183-184 (Diplock LJ).
J E Byrne, The Official Commentary on the International Standby Practices (2nd ed, 2005, ICC Publishing S.A.).
Rule 1.06(a).
Rule 1.06(c)(i).
Rule 1.06(d).
Rule 1.08.
Rule 2.01(a).
Rule 2.01(b)(i)(a).
Rule 2.01(c).
Rule 2.01(e).
Rule 5.01(a).
Rule 5.01(a)(i).
Rule 5.01(a)(iii).
Rule 5.01(a)(iv).
Mr McHugh's term.
Akai Pty Ltd v People's Insurance Co Ltd (1996) 188 CLR 418; [1996] HCA 39 at 440-442 (Toohey, Gaudron and Gummow JJ).
Offshore International S.A. v Banco Central S.A. [1977] 1 WLR 399 at 401 (Ackner J).
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A. t/as Rabobank, Hong Kong Branch v Bank of China [2004] 3 HKLRD 477 at [104] (Stone J).
There was none.
And see: Offshore International S.A. v Banco Central S.A. (supra) at 402 (Ackner J); Attock Cement Co Ltd v Romanian Bank for Foreign Trade [1989] 1 WLR 1147 at 1159 (Staughton LJ); Olex Focas Pty Ltd v Skodaexport Co Ltd [1998] 3 VR 380 at 393-394 (Batt J); Sinotani Pacific Pte Ltd v Agricultural Bank of China [1999] 2 SLR(R) 970 at [19]-[23] (Goh Joon Seng J); M Davies, A S Bell, P L G Brereton and M Douglas, Nygh's Conflicts of Law (10th ed, 2020, LexisNexis Butterworths Australia) at [19.35].
Heytex Bramsche GMBH v Unity Trade Capital Ltd [2022] EWHC 2488 (Ch) at [21] (Deputy ICC Judge Greenwood).
[2011] 2 All ER (Comm) 288.
At [29] (with whom Etherton and Arden LJJ agreed).
(2015) 256 CLR 104; [2015] HCA 37 at [46] (French CJ, Nettle and Gordon JJ).
P Herzfeld & T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [19.60].
See, for example, Fortis Bank SA/NV v Indian Overseas Bank (supra) at [26]-[29] (Thomas LJ, Etherton and Arden LJJ agreeing).
(1997) 190 CLR 225; [1997] HCA 4.
At 255.
At 240.
[1969] 2 NSWR 782.
At 790.
At p 259.
See [25] above.
See [42] above.
30 July 2021 was a Friday and 3 August 2021 was a Tuesday.
See [25] above.
See [164] above.
Citing Kredietbank NV v Sinotani Pacific Pte Ltd [1999] 1 SLR(R) 274 at [126]; upheld in Sinotani Pacific Pte Ltd v Agricultural Bank of China (supra).
Par C15 of the Commercial List Cross Claim List Statement.
Par C8(c).
Submissions at par 111; the submission proceeded on the basis that the accrued right contended for was said to exist "upon presentation of a complying demand on 30 July 2021". Mr McHugh had made clear in opening that the right was said to have accrued seven [business] days after presentation.
See [69]-[72] above.
Law of Civil Procedure of the People's Republic of China arts 267-268.
Mackender v Feldia AG [1967] 2 QB 590 at 601 (Diplock LJ).
Ralli Brothers v Compania Naviera Sota y Aznar [1920] 2 KB 287 at [291], [295] and [300] (Sterndale MR, Warrington and Scrutton LJJ), citing A V Dicey, Dicey, Morris & Collins on the Conflict of Laws (15th ed, 2012, Sweet & Maxwell).
R v International Trustee for the Protection of Bondholders Aktiengesellschaft [1937] AC 500 at 519 (Lord Wright).
Nygh's Conflicts of Law at [19.75], citing Dicey, Morris & Collins on the Conflict of Laws at [32-097].
Morgan v State of Victoria (2008) 22 VR 237; [2008] VSCA 267 at [93] (Nettle and Ashley JJA). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2023

Shinetec (Australia) Pty Ltd v The Gosford Pty Ltd; The Gosford Pty Ltd v Bank of China Ltd

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Judgment (24 paragraphs)

Cases Cited (8)

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