Keynes Capital Global Ltd v Guo [2022] NSWCA 254

Keynes Capital Global Ltd v Guo [2022] NSWCA 254

Leave to appeal from the primary judge’s refusal to discharge the consent freezing order was refused as no exceptional circumstances were shown. However, the further freezing order for October 2019 dividends was set aside because the respondent had not established a good arguable case to a judgment for the additional amount, and to allow such would result in double-counting since the claim to capital gain as at 12 October 2018 already included the right to future dividends. Therefore, the threshold for an additional freezing order was not met.

Parties
First Applicant: Keynes Capital Global Limited; Second Applicant: General Energy International Holdings Limited; Respondent: Hui Guo
Jurisdiction
Australia
Judgment Date
09 December 2022
Procedural Posture
Civil Appeal / Court of Appeal Judgment on Application for Leave to Appeal and Substantive Appeal
Outcome
Orders made: (1) Application for leave to appeal orders 3 and 4 of primary judge dismissed; (2) Leave granted to appeal order 1 of primary judge, only as to ground 5; (3) Appeal from order 1 allowed and orders 1 and 2 of primary judge set aside; (4) Respondent's notice of motion dismissed; (5) Respondent to pay...
Legal Topics
Freezing Orders, Asset Preservation, Trusts, Enforcement of Overseas Judgments, Consent Orders, Breach of Fiduciary Duty
Civil Procedure Equity Commercial Law Freezing Orders Asset Preservation Trusts Enforcement of Overseas Judgments Consent Orders +1 more

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Parties

Keynes Capital Global Limited

First Applicant

General Energy International Holdings Limited

Second Applicant

Hui Guo

Respondent

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Application for Leave to Appeal and Substantive Appeal

Legal Issues

  1. 1 Whether exceptional circumstances existed to warrant discharge of a consent freezing order
  2. 2 Whether the primary judge erred in making a further freezing order for additional dividends
  3. 3 Whether the applicant established a good arguable case to judgment in Hong Kong in the amount secured by the further order

Ratio Decidendi

Leave to appeal from the primary judge’s refusal to discharge the consent freezing order was refused as no exceptional circumstances were shown. However, the further freezing order for October 2019 dividends was set aside because the respondent had not established a good arguable case to a judgment for the additional amount, and to allow such would result in double-counting since the claim to capital gain as at 12 October 2018 already included the right to future dividends. Therefore, the threshold for an additional freezing order was not met.

Court Disposition

Orders made: (1) Application for leave to appeal orders 3 and 4 of primary judge dismissed; (2) Leave granted to appeal order 1 of primary judge, only as to ground 5; (3) Appeal from order 1 allowed and orders 1 and 2 of primary judge set aside; (4) Respondent's notice of motion dismissed; (5) Respondent to pay...

Orders

  • Dismiss the application for leave to appeal from orders 3 and 4 of the primary judge made on 3 May 2021.
  • Grant leave to the applicants to appeal from order 1 of the primary judge made on 3 May 2021, only as to ground 5 of appeal.