Bindaree Beef Pty Ltd v Chinatex (Australia) Pty Ltd (No 2); Bindaree Beef Pty Ltd v Chinatex (Australia) Pty Ltd [2018] NSWSC 57

Bindaree Beef Pty Ltd v Chinatex (Australia) Pty Ltd (No 2); Bindaree Beef Pty Ltd v Chinatex (Australia) Pty Ltd [2018] NSWSC 57

Bindaree had a good arguable s 37A case because Chinatex Australia transferred its principal asset, the Unibale shares, to a related Hong Kong company for $38,035,217 and no explanation was given for what happened to the funds. The relationship between the companies supported a good arguable case that Chinatex Hong Kong could not establish good faith without notice. There remained a danger that the judgment would be unsatisfied because the shares could be dealt with within the group, and the undertakings offered were insufficient. The court had power to make the ancillary order restraining Unibale from issuing shares. The stay application was dismissed because any risk that the appeal...

Jurisdiction
Australia
Judgment Date
07 February 2018
Procedural Posture
Equity Commercial List; Procedural and Other Rulings / Hearing of Notice of Motion for Stay Pending Appeal in the 2016 Proceeding and Continuation and Extension of Freezing Orders and Ancillary Orders in the 2017 Proceeding
Outcome
Notice of motion for stay in the 2016 Proceeding dismissed with costs; freezing and ancillary orders in the 2017 Proceeding continued and extended until further order.
Legal Topics
['freezing Orders' 'interim Preservation' 'ancillary Orders' 'stay of Proceedings Pending Appeal' 'conveyancing Act S 37 a Claim' 'fraudulent Alienation of Property']
['civil Procedure' 'equity' 'commercial Law'] ['freezing Orders' 'interim Preservation' 'ancillary Orders' 'stay of Proceedings Pending Appeal' 'conveyancing Act S 37 a Claim' 'fraudulent Alienation of Property']

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Procedural Posture

Equity Commercial List; Procedural and Other Rulings / Hearing of Notice of Motion for Stay Pending Appeal in the 2016 Proceeding and Continuation and Extension of Freezing Orders and Ancillary Orders in the 2017 Proceeding

Legal Issues

  1. 1 ['Whether the stay granted in the 2016 Proceeding should continue pending appeal.' 'Whether Bindaree had a good arguable case in the 2017 Proceeding under s 37A of the Conveyancing Act 1919 (NSW).' 'Whether there was a danger that any judgment in the 2017 Proceeding would be wholly or partly unsatisfied because shares in Unibale might be disposed of, dealt with or diminished in value.' 'Whether the court had power to make an ancillary order restraining Unibale from issuing shares or equivalent securities.' 'Whether the court should exercise its discretion to continue and extend freezing orders and ancillary orders against Chinatex Hong Kong and Unibale.']

Ratio Decidendi

Bindaree had a good arguable s 37A case because Chinatex Australia transferred its principal asset, the Unibale shares, to a related Hong Kong company for $38,035,217 and no explanation was given for what happened to the funds. The relationship between the companies supported a good arguable case that Chinatex Hong Kong could not establish good faith without notice. There remained a danger that the judgment would be unsatisfied because the shares could be dealt with within the group, and the undertakings offered were insufficient. The court had power to make the ancillary order restraining Unibale from issuing shares. The stay application was dismissed because any risk that the appeal...

Court Disposition

Notice of motion for stay in the 2016 Proceeding dismissed with costs; freezing and ancillary orders in the 2017 Proceeding continued and extended until further order.

Orders

  • ['The order of the court in the 2016 Proceeding is that the notice of motion filed on 14 December 2017 be dismissed with costs.' 'Without admission by the first and second defendants, order 1 made by his Honour Justice Ball on 14 December 2017 be continued until further order.' 'Without admission and upon the...