BCEG International (Australia) Pty Ltd v Xiao (No 2) [2022] NSWSC 1102

BCEG International (Australia) Pty Ltd v Xiao (No 2) [2022] NSWSC 1102

The Court had elided separate corporate entities and individuals at [436] of the primary judgment by treating repayments by the defendants collectively as giving West Wyalong Marketplace Pty Ltd a set-off against profits it was otherwise obliged to disgorge. The principal repayments were made by Interlink Laboratory Pty Ltd, there was no evidence that West Wyalong Marketplace paid for construction of the project, and its identified payments post-dated completion and were not shown to relate to construction. The misapprehension was the Court's own and was not attributable to BCEG's neglect or default, so Order 11 should be varied under rule 36.16(3A).

Jurisdiction
Australia
Judgment Date
17 August 2022
Procedural Posture
Consequential Orders; Motion to Vary Judgment and Orders / After Primary Judgment; Notice of Motion Under Rule 36.16(3 A) of the Uniform Civil Procedure Rules 2005 (nsw)
Outcome
Order 11 varied under rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW).
Legal Topics
['variation of Judgment or Order' 'rule 36.16(1) and Rule 36.16(3 A) of the Uniform Civil Procedure Rules 2005 (nsw)' 'account of Profits' 'equitable Compensation' 'accessorial Liability' 'finality of Litigation']
['civil Procedure' 'equity' 'corporations and Directors Duties' 'remedies'] ['variation of Judgment or Order' 'rule 36.16(1) and Rule 36.16(3 A) of the Uniform Civil Procedure Rules 2005 (nsw)' 'account of Profits' 'equitable Compensation' 'accessorial Liability' 'finality of Litigation']

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Procedural Posture

Consequential Orders; Motion to Vary Judgment and Orders / After Primary Judgment; Notice of Motion Under Rule 36.16(3 A) of the Uniform Civil Procedure Rules 2005 (nsw)

Legal Issues

  1. 1 ['Whether Order 11 should be varied under rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the primary judgment proceeded on a misapprehension by treating repayments by the defendants collectively as reducing the account of profits payable by West Wyalong Marketplace Pty Ltd.' 'Whether West Wyalong Marketplace Pty Ltd was entitled to a deduction or set-off for West Wyalong payments when the principal repayments were made by Interlink Laboratory Pty Ltd.']

Ratio Decidendi

The Court had elided separate corporate entities and individuals at [436] of the primary judgment by treating repayments by the defendants collectively as giving West Wyalong Marketplace Pty Ltd a set-off against profits it was otherwise obliged to disgorge. The principal repayments were made by Interlink Laboratory Pty Ltd, there was no evidence that West Wyalong Marketplace paid for construction of the project, and its identified payments post-dated completion and were not shown to relate to construction. The misapprehension was the Court's own and was not attributable to BCEG's neglect or default, so Order 11 should be varied under rule 36.16(3A).

Court Disposition

Order 11 varied under rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW).

Orders

  • ['Pursuant to rule 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW), vary Order 11 made on 22 July 2022 to delete the words "less the West Wyalong payments, as described in the judgment of Rees J".' 'The monetary judgment in Order 11 made 22 July 2022 be varied to $3,731,547.75.']