CIP Group Pty Ltd v So (No 5) [2024] FCA 1373

CIP Group Pty Ltd v So (No 5) [2024] FCA 1373

A material change of circumstances, specifically the significant diminution in the value of the applicant's undertaking as to damages (due to Mr Clancy's disposal of assets), along with the impact of the injunction on the defence's ability to conduct the proceedings, justifies a variation of the interlocutory injunction. An order should be made varying the injunction to permit the So interests to use up to $3.5 million of the restrained funds to meet legal expenses, subject to conditions and undertakings as set out.

Parties
First Applicant: CIP Group Pty Ltd ACN 610 483 577; Second Applicant: CIP 1 Pty Ltd ACN 611 408 710; Third Applicant: PYRMONT PORTFOLIO PTY LTD ACN 608 496 617; First Respondent: SHAN NGAI SO; Second Respondent: GGPG PTY LTD ACN 609 675 505 (RECEIVER AND MANAGER APPOINTED); Third Respondent: PARK RIDGE 94 PTY LTD ACN 616 893 924 (RECEIVER AND MANAGER APPOINTED); Fourth Respondent: PARK RIDGE 96 AND 98 PTY LTD ACN 618 802 618 (RECEIVER AND MANAGER APPOINTED); Fifth Respondent: PARK RIDGE 132 PTY LTD ACN 619 053 735 (RECEIVER AND MANAGER APPOINTED); Sixth Respondent: 168 PARK RIDGE PTY LTD ACN 619 549 334 168 (RECEIVER AND MANAGER APPOINTED); Seventh Respondent: PARK RIDGE 180 PTY LTD ACN 616 431 157 (RECEIVER AND MANAGER APPOINTED); Eighth Respondent: ROCHEDALE HOLDINGS PTY LTD ACN 610 535 076 (RECEIVER AND MANAGER APPOINTED); Ninth Respondent: ROCHEDALE HOLDINGS NO. 1 PTY LTD ACN 610 550 199 (RECEIVER AND MANAGER APPOINTED); Tenth Respondent: GGPG DEVELOPMENTS (NO.48) PTY LTD ACN 608 771 857 (RECEIVER AND MANAGER APPOINTED); Eleventh Respondent: PARK RIDGE DEVELOPMENT MANAGEMENT PTY LTD ACN 627 401 094 (RECEIVER AND MANAGER APPOINTED); Twelfth Respondent: COORPAROO HOLDINGS PTY LTD ACN 609 979 446 (RECEIVER AND MANAGER APPOINTED); Thirteenth Respondent: AXIS NORTH PTY LTD ACN 609 653 821 (RECEIVER AND MANAGER APPOINTED); Fourteenth Respondent: SIP GROUP PTY LTD ACN 610 480 914 (RECEIVER AND MANAGER APPOINTED); Fifteenth Respondent: SIP 1 PTY LTD ACN 611 408 925 (RECEIVER AND MANAGER APPOINTED); Sixteenth Respondent: MT FAMILY PTY LTD ACN 605 720 947; Seventeenth Respondent: ULTIMATE INVESTMENT PORTFOLIO PTY LTD ACN 611 531 778; Eighteenth Respondent: UIP 1 PTY LTD ACN 655 578 733; Nineteenth Respondent: LAI WAH WONG; Twentieth Respondent: SUK KUEN LEUNG; Twenty First Respondent: SEL PROPERTY INVESTMENTS PTY LTD ACN 612 436 950; Twenty Second Respondent: PAUL WONG; Twenty Third Respondent: THYNNE & MACARTNEY (A FIRM)
Jurisdiction
Australia
Judgment Date
04 December 2024
Procedural Posture
Application to Vary Interlocutory Order (injunction) / Post Interlocutory, Pre Trial
Outcome
Interlocutory application allowed. Orders varied.
Legal Topics
Interlocutory Injunctions, Variation of Orders, Proprietary Injunctions, Balance of Convenience, Undertaking as to Damages, Costs
Practice and Procedure Commercial Law Corporations Interlocutory Injunctions Variation of Orders Proprietary Injunctions Balance of Convenience Undertaking as to Damages +1 more

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Parties

CIP Group Pty Ltd ACN 610 483 577

First Applicant

CIP 1 Pty Ltd ACN 611 408 710

Second Applicant

PYRMONT PORTFOLIO PTY LTD ACN 608 496 617

Third Applicant

SHAN NGAI SO

First Respondent

GGPG PTY LTD ACN 609 675 505 (RECEIVER AND MANAGER APPOINTED)

Second Respondent

PARK RIDGE 94 PTY LTD ACN 616 893 924 (RECEIVER AND MANAGER APPOINTED)

Third Respondent

PARK RIDGE 96 AND 98 PTY LTD ACN 618 802 618 (RECEIVER AND MANAGER APPOINTED)

Fourth Respondent

PARK RIDGE 132 PTY LTD ACN 619 053 735 (RECEIVER AND MANAGER APPOINTED)

Fifth Respondent

168 PARK RIDGE PTY LTD ACN 619 549 334 168 (RECEIVER AND MANAGER APPOINTED)

Sixth Respondent

PARK RIDGE 180 PTY LTD ACN 616 431 157 (RECEIVER AND MANAGER APPOINTED)

Seventh Respondent

ROCHEDALE HOLDINGS PTY LTD ACN 610 535 076 (RECEIVER AND MANAGER APPOINTED)

Eighth Respondent

ROCHEDALE HOLDINGS NO. 1 PTY LTD ACN 610 550 199 (RECEIVER AND MANAGER APPOINTED)

Ninth Respondent

GGPG DEVELOPMENTS (NO.48) PTY LTD ACN 608 771 857 (RECEIVER AND MANAGER APPOINTED)

Tenth Respondent

PARK RIDGE DEVELOPMENT MANAGEMENT PTY LTD ACN 627 401 094 (RECEIVER AND MANAGER APPOINTED)

Eleventh Respondent

COORPAROO HOLDINGS PTY LTD ACN 609 979 446 (RECEIVER AND MANAGER APPOINTED)

Twelfth Respondent

AXIS NORTH PTY LTD ACN 609 653 821 (RECEIVER AND MANAGER APPOINTED)

Thirteenth Respondent

SIP GROUP PTY LTD ACN 610 480 914 (RECEIVER AND MANAGER APPOINTED)

Fourteenth Respondent

SIP 1 PTY LTD ACN 611 408 925 (RECEIVER AND MANAGER APPOINTED)

Fifteenth Respondent

MT FAMILY PTY LTD ACN 605 720 947

Sixteenth Respondent

ULTIMATE INVESTMENT PORTFOLIO PTY LTD ACN 611 531 778

Seventeenth Respondent

UIP 1 PTY LTD ACN 655 578 733

Eighteenth Respondent

LAI WAH WONG

Nineteenth Respondent

SUK KUEN LEUNG

Twentieth Respondent

SEL PROPERTY INVESTMENTS PTY LTD ACN 612 436 950

Twenty First Respondent

PAUL WONG

Twenty Second Respondent

THYNNE & MACARTNEY (A FIRM)

Twenty Third Respondent

Procedural Posture

Application to Vary Interlocutory Order (injunction) / Post Interlocutory, Pre Trial

Legal Issues

  1. 1 Whether there has been a material change of circumstances justifying variation of an interlocutory injunction
  2. 2 Whether the value of the applicant's undertaking as to damages has sufficiently diminished to require variation of the injunction
  3. 3 Appropriate extent of variation to allow use of disputed funds to defend proceedings

Ratio Decidendi

A material change of circumstances, specifically the significant diminution in the value of the applicant's undertaking as to damages (due to Mr Clancy's disposal of assets), along with the impact of the injunction on the defence's ability to conduct the proceedings, justifies a variation of the interlocutory injunction. An order should be made varying the injunction to permit the So interests to use up to $3.5 million of the restrained funds to meet legal expenses, subject to conditions and undertakings as set out.

Court Disposition

Interlocutory application allowed. Orders varied.

Orders

  • The interlocutory application dated 1 November 2024 is allowed.
  • The interlocutory injunction made on 24 May 2023 is varied to permit the first and fourteenth to twentieth respondents to use up to $3,500,000 of the Stage 7 to 11 proceeds, subject to specified undertakings, including repayment and mortgages to secure repayment.