Xu v Cao & Du Management Pty Ltd; Cao v Tung Chit Real Estate Investment Australia Pty Ltd

ex tempore judgment (REVISED)

1. I have had before me today two notices of motion in separate proceedings involving only some common parties. The first application in the first set of proceedings in time, Xu v Cao & Du Management Pty Ltd & Anor, is for an expedited hearing. That proceeding is matter-number 2022/00078620 (the 2022 proceedings). The second motion in time is in the matter of Cao v Tung Chit Real Estate Investment Australia Pty Ltd & Anor. That proceeding is matter-number 2024/00320302 (the 2024 proceedings). It seeks an order that the 2024 proceedings be heard together with the 2022 proceedings and that evidence in one stands as evidence in the other with some ancillary orders for case-management.
2. It is clear that some of the parties are the same. However, the plaintiff in the 2022 proceedings, Mr Xu, is not a party to the 2024 proceedings. The common parties are the cross-defendants joined by the Cao parties to the 2022 proceeding. The claim in debt the subject of the 2024 proceedings could probably have been pleaded in that cross-claim but was not.
3. Without descending into great detail about the proceedings, given I am dealing with case management issues, the facts in the matter and the general background to the proceedings were fully discussed by my colleague Coleman J in his judgment in the 2022 proceedings, having the medium neutral citation of [2024] NSWSC 1596. That was a successful application by the plaintiff for an interim asset preservation order.
4. Essentially the facts that were persuasive from his Honour's point of view in making that order form the basis of the application for expedition. They relate to what, on any view of it, must be the individual defendant's perilous or at least extremely attenuated financial position as demonstrated by the evidence before Colman J. That individual is the controlling mind of the corporate defendant in the 2022 proceedings, although his estranged wife apparently still has shares in that corporation.
5. By the 2022 proceedings, Mr Xu claims recovery of a sizeable debt. It was originally a loan of $3.3 million repayable within a period of two years. The accumulated interest due upon repayment (but not before) was a further sum of $3.3 million. The total being, of course, $6.6 million. It fell due in or about the latter part of 2018 and default interest compounding on a monthly basis has brought the total now due, on the plaintiff's case, to the vicinity of $55 million.