• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Category: Procedural rulings

Parties: Xiaowen Su (Applicant)
Zhao’s Brothers Investment Pty Ltd as trustee for the Zhao Family Trust (receiver and manager appointed) (Respondent)
Proceeding 2026/00017227
Xiaowen Su (Plaintiff)
Zhao’s Brothers Investment Pty Ltd as trustee for the Zhao Family Trust (receiver and manager appointed) (First Defendant)
Golden Stone Fund Pty Ltd as trustee for Golden Stone Fund Unit Trust (Second Defendant)
Registrar General of NSW (Third Defendant)
Tung Chit Real Estate Investment Australia Pty Ltd (Fourth Defendant)

Representation: Counsel:
D Allen (Plaintiff/Applicant)
M Condon SC / P Sharp (First Defendant/Respondent)
Solicitors:
ACME Consulting Lawyers (Plaintiff/Applicant)
Auyeung Hencent & Day (First Defendant/Respondent)

File Number(s): 2026/00017227

Publication restriction: Nil

JUDGMENT

1. By an amended notice of motion dated 11 August 2026 (Motion), the plaintiff, Ms Xiaowen Su, seeks orders to set aside the following subpoenas (the Subpoenas) issued by the Court at the request of the first defendant, Zhao’s Brothers Investment Pty Ltd (Zhao**’**s Brothers):

2. a subpoena issued to Mr Howard Cao on 3 July 2026, seeking communications between Mr Cao and Ms Coco Wang, the plaintiff, Mr Yanlin Dou, Ms Xiuhua Huo and Mr Zachary Chang concerning the Magenta Shores land referred to below, including the sale of Zhao’s Brothers’ interest in that land by Ms Wang (as novated to the plaintiff) to Magenta Shores Management Pty Ltd (MSM), in the period from March 2025 to June 2026 (Cao Subpoena);

3. a subpoena issued to Mr Alexander Siu on 3 July 2026, seeking transcripts of the public examinations of Mr Cao and the plaintiff conducted in Federal Court proceeding NSD 212/2026 (First Siu Subpoena); and

4. a subpoena issued to Mr Alexander Siu on 19 July 2026, seeking transcripts of those examinations of Mr Cao and the plaintiff which took place on 15 and 16 July 2026 (Second Siu Subpoena).

5. Mr Cao is the son of the plaintiff and an undischarged bankrupt. The First and Second Siu Subpoenas are issued to Mr Siu of Hall Chadwick in respect of public examinations conducted by him as liquidator of Cao & Du Management Pty Ltd pursuant to summonses issued under s 596A of the Corporations Act 2001 (Cth). Mr Siu is also the receiver and manager appointed to the first defendant.

6. At the hearing of the Motion, Mr D Allen of counsel appeared for the plaintiff/applicant and Mr M Condon SC appeared with Mr P Sharp for the first defendant/respondent.

7. The plaintiff relied on two affidavits of her solicitor, Mr John Tomaras dated 8 July and 11 August 2026, and the first defendant relied on an affidavit of its solicitor, Mr Yan Zhang dated 14 August 2026.

8. Documents have been produced to the Court pursuant to the First Siu Subpoena, but the grant of access is awaiting the determination of the Motion. Documents have yet to be produced pursuant to the other two subpoenas.

Background

6. As set out in Su v Zhao*’*s Brothers Investment Pty Ltd [2026] NSWSC 842 (Judgment), these proceedings are a dispute as to which of two persons is entitled, as purchaser under a transfer of Zhao’s Brothers’ 10% interest in five parcels of land at Magenta Shores, New South Wales (Magenta Shores land), to be registered as proprietor of that interest: the first is Golden Stone Fund Pty Ltd (Golden Stone), the second defendant, under a transfer in its favour made by Zhao’s Brothers dated on or about 16 December 2025 pursuant to a contract for sale dated 23 September 2025 (Golden Stone Transfer), and the second is MSM, under a transfer dated 1 June 2026 made to it by the plaintiff pursuant to a contract for sale dated 23 January 2026 (as novated on 27 April 2026) (MSM Transfer).

7. MSM’s claim depends upon a series of documents said to have been executed in 2018, including a loan agreement dated 4 March 2018, a variation agreement dated 16 July 2018 (Variation Agreement), an undated mortgage in favour of Ms Wang (Wang Mortgage), and a transfer of the Wang Mortgage made in 2025 in favour of the plaintiff, with the MSM Transfer purporting to be pursuant to the exercise of a mortgagee’s power of sale under the Wang Mortgage: Judgment [7]–[9].

8. Zhao’s Brothers alleges that the Variation Agreement and the Wang Mortgage were not executed in 2018, but were instead signed and backdated to 2018 in 2025, and that Mr Zhao, whose signature appears on the documents, was not in 2025 a director of Zhao’s Brothers and lacked authority to bind it: Judgment [9(2)], [11]. In the Judgment, I concluded that there is a serious question to be tried in relation to those allegations, and observed that the final relief sought is likely to include a declaration that the documents are invalid on that basis: Judgment [16], [29].

9. The proceedings were commenced by summons on 14 January 2026, together with an affidavit in support by the plaintiff’s solicitor, Mr John Tomaras, dated 13 January 2026 (First Tomaras Affidavit). The summons sought, relevantly, orders that the Registrar-General be restrained from registering the Golden Stone Transfer and be permitted and authorised to register the transfer of the Wang Mortgage to the plaintiff. The affidavit in support set out details of the transactions on which the plaintiff relied, including the transfer of the Wang Mortgage to the plaintiff, in support of the relief sought in the summons.

10. No defence has been (or is required to be) filed, and there has been no order for pleadings except the order made on 16 July 2026 for the first defendant to file a cross claim raising for determination the authenticity of the Variation Agreement and the Wang Mortgage, together with Mr Zhao’s authority to execute those documents on behalf of Zhao’s Brothers: see Judgment at [16], [39(4)]. The time for filing the cross claim has been extended to 3 September 2026.

11. The cross claim is necessary in order to make both MSM and ACapital Finance No 5 Pty Ltd (which has taken a mortgage of the land from MSM) parties to the proceedings and resolve the priority dispute between Golden Stone on one side and MSM (with ACapital Finance No 5 Pty Ltd) on the other. However, it is necessary to bear in mind that there is a live dispute between the plaintiff and Zhao’s Brothers under the summons over the authenticity of the Variation Agreement and the Wang Mortgage which is not (and is not required to be) the subject of any pleading.

Consideration

12. I will address in turn each of the grounds relied on by the plaintiff for the contention that the Subpoenas should be set aside.

13. First, the plaintiff submits that there is no legitimate forensic purpose to the Cao Subpoena and the First Siu Subpoena because they were issued to advance the notice of motion filed by Zhao’s Briothers on 18 June 2026, which was resolved by the Judgment. A related submission by the plaintiff is that all of the Subpoenas were issued before the close of pleadings on the cross claim, and consequently amount to an abuse of process, relying on Neil Street Co Pty Ltd v Ibrahim (2024) 115 NSWLR 285; [2024] NSWSC 1382 at [42]–[43]. It is convenient to deal with both submissions together.

14. While the stated purpose for which the Cao Subpoena and the First Siu Subpoena were issued was to advance the notice of motion filed on 18 June 2026, that purpose was not extinguished by the determination of that notice of motion. To the contrary, the orders made on 16 July 2026 require Zhao’s Brothers to bring a cross claim concerning the very matters to which the Subpoenas relate on the basis that there is a serious question to be tried that Golden Stone is entitled to registration of the Golden Stone Transfer in priority to the MSM Transfer, and also that the MSM Transfer is ineffective because the Wang Mortgage is not a valid mortgage: Judgment at [29].

15. A subpoena will be presumed to have been issued for a legitimate forensic purpose if the documents sought are apparently relevant to an identified issue, or there is a reasonable basis, beyond mere speculation, for concluding that the documents will assist on an identified issue and/or bear on cross examination of witnesses expected to be called in the proceedings: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council (2021) 118 NSWLR 336; [2021] NSWCA 145 at [65], [80], [89].

16. As Bell P (as the Chief Justice then was) explained in Blacktown at [68], the apparent relevance of the documents sought to an issue in the proceedings is determined:

by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.

17. To the same effect is the statement by Moffit P in Waind v National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372 at 385 that what is necessary is ‘to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings’.

18. It is clear from these statements that there is no inflexible rule that the legitimate forensic purpose can only be identified from the pleadings. This is particularly so in a case where the proceedings are commenced by summons so that there are no pleadings and no direction is made by the court that the proceedings continue on pleadings. This was the case when the Cao Subpoena and the First Siu Subpoena were issued, and continues to be the position in so far as Zhao’s Brothers’ defence to the plaintiff’s case in these proceedings is concerned notwithstanding the order made on 16 July 2026 to require Zhao’s Brothers to file a cross claim.

19. It is clear from the summons, the First Tomaras Affidavit and the evidence referred to in the Judgment that when the Cao Subpoena and the First Siu Subpoena were issued, a central issue on which the plaintiff’s case depended and still depends is the authenticity of the Variation Agreement and the Wang Mortgage, together with Mr Zhao’s authority to execute those documents on behalf of Zhao’s Brothers. Both of those subpoenas serve a legitimate forensic purpose in that they are likely to add, in some way or another, to the relevant evidence on that central issue in the plaintiff’s claim. That is also true in relation to the Second Siu Subpoena (based on the evidence on the Motion of Mr Zhang who attended the public examinations of Mr Cao and the plaintiff). That legitimate forensic purpose, which existed when each of those subpoenas was issued, continues to exist and does so independently of the cross claim.

20. This conclusion is entirely consistent with the observation of Kunc J in Neil Street at [43], on which Mr Allen relied, that:

For pleaded cases, “apparent relevance” and the “identified issue” will be identified from the matters put in issue in the pleadings. In a case commenced by summons, the issues may be identified from the affidavit evidence and the relevant legal issues. In the present case, there could be no “apparent relevance” because there were no relevantly identified issues given that pleadings had not closed.

21. In Neil Street, the proceedings were commenced by the plaintiff filing a statement of claim, whereas here they were commenced by summons, and in my view, each of the Subpoenas has apparent relevance to Zhao’s Brothers’ conduct of its defence to the summons.

22. Second, the plaintiff submits that the Subpoenas are an abuse of process because they seek to work around the rules for preliminary discovery. It was said that they do not go to any pleaded issue, but rather are issued for the purpose of finding out whether there may be a further claim which can be brought, and hence are a form of fishing expedition which is an abuse of process. In my view, that is not a proper characterisation of the Subpoenas. Zhao’s Brothers has articulated a case supported by the evidence referred to in the Judgment, and the Subpoenas are targeted at identified documents which are relevant to that articulated case.

23. Third, the plaintiff submits that the Cao Subpoena subverts Practice Note SC Eq 11 because the documents sought are expressed in wide terms and they are clearly discoverable from the plaintiff or from other people who will be joined as parties to the proceedings. I reject this submission. First, Mr Cao is not a party to the proceedings, and he is not a necessary party to the cross claim. His communications with identified third parties are not, without more, documents that would necessarily be discoverable from the plaintiff, nor is there any basis to assume that the plaintiff holds complete copies of those communications. Second, while the description of the documents sought by the Cao Subpoena is wide, it satisfies the requirement that it must specify with reasonable particularity the documents which are required to be produced and for that reason does not amount to an attempt to obtain discovery from a stranger to the proceedings (Mr Cao): Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573. Nor does the Cao Subpoena require Mr Cao to make a judgment as to which of his documents relate to the issues between the parties in these proceedings: Small at 573.

24. I note that Mr Allen did not submit that compliance with the Cao Subpoena would be burdensome or oppressive. Rather, the width of the subpoena was relied on in support of a submission that it was an impermissible attempt to obtain discovery from a third party, which I reject.

25. Fourth, the plaintiff raises a further objection applicable specifically to the First and Second Siu Subpoenas which seek the transcripts of public examinations of the plaintiff and Mr Cao, and any MFIs marked by the Registrar conducting the examination. It is submitted that s 597 of the Corporations Act contains a regime overseen by the Federal Court as to what use can be made of a transcript of a public examination by a third party and there is no legislative intention that a third party who is not a creditor would have access to the transcript except following an application to the Federal Court for permission to use the transcript.

26. Further, on 18 August 2026, the plaintiff and Mr Cao filed an interlocutory application in the Federal Court in proceedings NSD 212/2026 (Interlocutory Application) in which they seek various relief including relevantly:

7. Pursuant to section 37AF of the Federal Court of Australia Act 1976 (Cth), the evidence given and the transcripts of the examinations of Xiaowen Su and Howard Hao Ting Cao, any notes taken of the examinations are not to be published and are not to be used in any other proceedings, without leave of the Court.

…

10. The Court review the Registrars decision to permit questions and answers pertaining to all matters, correspondence and transactions relating to the Magenta Shores Element Project.

11. Upon review the court restrain the liquidator from making any use of the questions and answers, including an order restraining the liquidator from publishing parts of any transcript recording any questions and answers pertaining to all matters, correspondence and transactions relating to the Magenta Shores Development Project.

27. In essence, the complaint of the plaintiff and Mr Cao is that the manner in which the examinations were conducted by Mr Siu involved an abuse of process in that they were used to gather evidence for these proceedings rather than the liquidation of Cao & Du Management Pty Ltd.

28. Relevant to this ground are ss 596F(1)(f) and 597(13)–(14A) of the Corporations Act.

29. Section 596F(1)(f) provides:

Subject to section 597, the Court may at any time give one or more of the following:

…

(f) a direction prohibiting publication or communication of information about the examination (including questions asked, and answers given, at the examination) …

30. Section 597(13)–(14A) provides (emphasis added):

(13) [Court may order questions to be put]

The Court may order the questions put to a person and the answers given by him or her at an examination to be recorded in writing and may require him or her to sign that written record.

(14) [Record of examination may be used]

Subject to subsection (12A), any written record of an examination so signed by a person, or any transcript of an examination of a person that is authenticated as provided by the rules of court, may be used in evidence in any legal proceedings against the person.

(14A) [Who may examine record]

A written record made under subsection (13):

(a) is to be open for inspection, without fee, by:

(i) the person who applied for the examination; or

(ii) an officer of the corporation; or

(iii) a creditor of the corporation; and

(b) is to be open for inspection by anyone else on paying the prescribed fee.

31. The transcript of the examinations of the plaintiff and Mr Cao is prima facie within s 597(14). However, it is established that an order precluding access to a transcript of proceedings of the kind mentioned in s 597(14) can be made under s 596F(1)(f): Re Strarch International Pty Ltd (2005) 191 FLR 225; [2005] NSWSC 583 at [28]; Re Plutus Payroll Australia Pty Ltd (in liq) (2020) 143 ACSR 234; [2020] NSWSC 46 at [21]–[22]. The relief sought in the Interlocutory Application set out above includes orders that would restrict the use of information about the evidence given by the plaintiff and Mr Cao in the public examinations, including transcripts of that evidence and any MFIs marked by the Registrar in conducting the examinations. In view of this, as things presently stand, there is potential for the Federal Court to make an order under s 596F(1)(f) which would prevent the use of some or all of the documents produced under the First and Second Siu Subpoenas or communication of information contained in them.

32. In my view, while the potential for such an order does not render the First and Second Siu Subpoenas an abuse of process or presently liable to be set aside, it does mean that there is a real risk that if access is given to those documents following production to the Court before the Interlocutory Application has been determined, it may turn out that they are not be capable of being used for any purpose in these proceedings.

33. After the production of documents pursuant to a subpoena to the Court, there is a second stage in which the Court has a discretion to permit inspection or delay inspection where good cause is shown: Waind at 385–386. In my view, it would not be appropriate to permit inspection of the documents produced under the First and Second Siu Subpoenas until the outcome of the Interlocutory Application is known. This can be accommodated by deferring the inspection of the documents produced to the Court under the First and Second Siu Subpoenas until the commencement of the trial subject to further order of the Court. I note that this approach will not prevent the first defendant from pleading the cross claim.

34. In my view, the appropriate order as to costs is that the costs of the Motion are reserved and determined at the conclusion of the proceedings.

35. For these reasons, the Court will make the following orders:

36. Subject to further order, access to the documents produced to the Court under the subpoenas issued to Mr Alexander Siu on 3 July 2026 and 19 July 2026 be deferred until the first day of the hearing of these proceedings.

37. The amended notice of motion dated 11 August 2026 is otherwise dismissed.

38. Liberty to apply on 3 days’ notice for access to the documents referred to in Order 1 following final determination of the interlocutory application filed by the plaintiff and Mr Howard Cao in Federal Court of Australia Proceedings NSD 212/2026.

39. Costs reserved.

**********