Naidenov, in the matter of 30 Denham Pty Ltd (in liq) [2023] FCA 134

Naidenov, in the matter of 30 Denham Pty Ltd (in liq) [2023] FCA 134

There was no material non-disclosure justifying discharge of the asset preservation orders, and reconsideration of the discretion in the absence of a damages undertaking did not warrant discharge as there was no evidence of likely loss and the statute precludes any requirement for such an undertaking.

Parties
First Plaintiff, First Respondent (on 17 February Ip): Steven Naidenov in his capacity as liquidator of 30 Denham Pty Ltd (in liquidation) (ACN 634 787 705); Second Plaintiff, Second Respondent (on 17 February Ip): Ian Niccol in his capacity as liquidator of 30 Denham Pty Ltd (in liquidation) (ACN 634 787 705); Third Plaintiff, Third Respondent (on 17 February Ip): 30 Denham Pty Ltd (in liquidation) (ACN 634 787 705); First Defendant: DC RD DC Pty Ltd (ACN 634 893 459); Second Defendant: David John Dawson; Third Defendant, First Respondent (on 14 February Ip): Dong (Tony) Zhang; Fourth Defendant, Second Respondent (on 14 February Ip): Derrick Martin De Souza; Fifth Defendant: Stanley Xue; Third Respondent (on 14 February Ip): Zhengjun Cai also known as Bob Cai; Fourth Respondent (on 14 February Ip): Charm Team Development Limited; Fifth Respondent (on 14 February Ip): Central Advisory Group Asia Limited; Sixth Respondent (on 14 February Ip): Central Advisory Capital Pty Ltd (ACN 621 169 015); Seventh Respondent (on 14 February Ip): DSZ Accountants Pty Ltd (ACN 161 148 545); Eighth Respondent (on 14 February Ip): Lian Li; Ninth Respondent (on 14 February Ip), First Applicant (on 17 February Ip): Belrose COB Pty Ltd (ACN 640 327 153); Tenth Respondent (on 14 February Ip), Second Applicant (on 17 February Ip): Link Investments Limited
Jurisdiction
Australia
Judgment Date
17 February 2023
Procedural Posture
Corporations Asset Preservation / Interlocutory Application / Interlocutory Application to Discharge Interim Asset Preservation Orders; Orders Continuing to Hearing of Final Application
Outcome
Application to discharge interim asset preservation orders dismissed; costs ordered to be costs in the cause.
Legal Topics
Interlocutory Relief, Asset Preservation Orders, Liquidators' Powers, Non Disclosure in Ex Parte Applications, Duty of Candour
Corporations Law Interlocutory Relief Asset Preservation Orders Liquidators' Powers Non Disclosure in Ex Parte Applications Duty of Candour

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Parties

Steven Naidenov in his capacity as liquidator of 30 Denham Pty Ltd (in liquidation) (ACN 634 787 705)

First Plaintiff, First Respondent (on 17 February Ip)

Ian Niccol in his capacity as liquidator of 30 Denham Pty Ltd (in liquidation) (ACN 634 787 705)

Second Plaintiff, Second Respondent (on 17 February Ip)

30 Denham Pty Ltd (in liquidation) (ACN 634 787 705)

Third Plaintiff, Third Respondent (on 17 February Ip)

DC RD DC Pty Ltd (ACN 634 893 459)

First Defendant

David John Dawson

Second Defendant

Dong (Tony) Zhang

Third Defendant, First Respondent (on 14 February Ip)

Derrick Martin De Souza

Fourth Defendant, Second Respondent (on 14 February Ip)

Stanley Xue

Fifth Defendant

Zhengjun Cai also known as Bob Cai

Third Respondent (on 14 February Ip)

Charm Team Development Limited

Fourth Respondent (on 14 February Ip)

Central Advisory Group Asia Limited

Fifth Respondent (on 14 February Ip)

Central Advisory Capital Pty Ltd (ACN 621 169 015)

Sixth Respondent (on 14 February Ip)

DSZ Accountants Pty Ltd (ACN 161 148 545)

Seventh Respondent (on 14 February Ip)

Lian Li

Eighth Respondent (on 14 February Ip)

Belrose COB Pty Ltd (ACN 640 327 153)

Ninth Respondent (on 14 February Ip), First Applicant (on 17 February Ip)

Link Investments Limited

Tenth Respondent (on 14 February Ip), Second Applicant (on 17 February Ip)

Procedural Posture

Corporations Asset Preservation / Interlocutory Application / Interlocutory Application to Discharge Interim Asset Preservation Orders; Orders Continuing to Hearing of Final Application

Legal Issues

  1. 1 Whether there was material non-disclosure justifying discharge of ex parte asset preservation orders under s 1323(3) Corporations Act 2001 (Cth)
  2. 2 Whether the Court should reconsider and discharge the interim asset preservation orders in the absence of an undertaking as to damages

Ratio Decidendi

There was no material non-disclosure justifying discharge of the asset preservation orders, and reconsideration of the discretion in the absence of a damages undertaking did not warrant discharge as there was no evidence of likely loss and the statute precludes any requirement for such an undertaking.

Court Disposition

Application to discharge interim asset preservation orders dismissed; costs ordered to be costs in the cause.

Orders

  • Prayer 3 of the Interlocutory Process filed 17 February 2023 dismissed, costs in the cause of the interlocutory process filed 14 February 2023.
  • Final relief on 17 February IP to be listed for hearing before Jackman J on 2 and 3 March 2023.