He v Sunnya Pty Ltd; Supermega Market Ltd v Sunnya Pty Ltd

1. [1]

   BELL CJ: There are three appeals before the Court arising from a detailed judgment of Williams J (the primary judge) following a 15 day hearing, involving allegations of breach of directors’ and fiduciary duties owed to Sunnya Pty Ltd (Sunnya) by Ms Yanxia Lu (Ms Lu) and Mr Yinghan He (Mr He) (together, the He Parties), and claims of involvement in and knowing assistance in a fraudulent and dishonest design against various other parties: In the matter of Sunnya Pty Ltd [2024] NSWSC 403 (primary judgment or PJ).

2. [2]

   Some but not all the alleged breaches were held to have been made out including breaches of fiduciary obligations which her Honour held to have continued to subsist following the He Parties’ resignation as directors of Sunnya on 25 November 2022. The He Parties challenge her Honour’s findings in this regard and Sunnya challenges her Honour’s rejection of a number of claims made by it in relation to conduct of the He Parties while directors of Sunnya. These latter challenges are dealt with in the companion judgment: Sunnya Pty Ltd v He [2025] NSWCA 79.

3. [3]

   It was not controversial that, as a matter of principle, a director (or senior employee) may not escape his or her fiduciary obligations in relation to a corporate commercial opportunity by resigning where that resignation may fairly be said to have been prompted or influenced by a wish to acquire the corporate opportunity which was being or on the verge of being exploited by the company to whom the fiduciary owed his or her obligations: Canadian Aero Service Ltd v O’Malley [1974] SCR 592; (1973) 40 DLR (3d) 371 (Canadian Aero); Edmonds v Donovan (2005) 12 VR 513; [2005] VSCA 27 at [56]-[58]; Foster Bryant Surveying Ltd v Bryant [2007] EWCA Civ 200 at [55]-[58]; Nicholls v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [178]; Schmidt v AHRKalimpa Pty Ltd [2020] VSCA 193 at [95].

4. [4]

   The seminal statement is that of the Supreme Court of Canada delivered by Laskin J in Canadian Aero at 607:

5. [5]

   The primary judge held that the Canadian Aero principle was engaged and conduct prior to the He Parties’ resignation as directors of Sunnya informed her Honour’s conclusion that their resignations were prompted or influenced by a wish to acquire for themselves maturing corporate opportunities to which they were privy by reason of their position as directors of Sunnya: PJ [804].

6. [6]

   A separate appeal has been brought by Supermega Market Ltd (Supermega), Megadairy Ltd (Megadairy) and NZFDA Limited (NZ) (NZFDA), together, the NZ Parties, whom her Honour found to be knowingly concerned in the breaches of statutory duties by the He Parties, or liable as knowing recipients or knowing assistants in the breaches of fiduciary duties found to have been committed in accordance with Barnes v Addy (1874) LR 9 Ch App 244 (Barnes v Addy). A number of the NZ Parties’ grounds of appeal overlapped with grounds of appeal pursued by the He Parties.

7. [7]

   Her Honour also made extensive declarations and orders including against Guangzhou Aotea Biological Technology Pte Ltd (GABT) for being knowingly concerned in the alleged breaches of statutory duties by the He Parties and liable as a knowing recipient or knowing assistant in the alleged breaches of fiduciary duties by the He Parties. GABT filed a cross-claim against Sunnya, which was dismissed on 7 December 2023 as it did not appear at the hearing (PJ [41]) and has not appealed from orders 5, 6, 11-14, 17, 20, 34-39 and 68-69 made in relation to it. Sunnya in its appeal seeks further orders inter alia against GABT.

8. [8]

   GABT was owned as to 95% by Mr He. Mr Yancheng Lu, his brother-in-law, was its General Manager and Executive Director: PJ [6].

9. [9]

   Orders were also made against the fifth defendant, Sunlife Healthfood Pty Ltd (Sunlife) which also did not appear at the hearing. Ms Yaqing He, the daughter of the He Parties, is the sole director and shareholder of Sunlife, which was the registered owner of the trade marks “Guamis” and “NRIO” in Australia and New Zealand. After the commencement of the proceedings, it transferred those trade marks to NZFDA in late March 2023: PJ [14]. The primary judge declared by order 48 that NZFDA knowingly assisted the breaches of fiduciary duty by Mr He and Ms Lu in the period from 31 March 2023 by holding the New Zealand registered NRIO trade mark from that date.

10. [10]

    Very few of the primary judge’s factual findings in a judgment running to almost 300 pages have been challenged on appeal, and her Honour’s meticulous analysis of the facts which is available on CaseLaw may be read in conjunction with these reasons, obviating the need for undue and extensive repetition. It is necessary, however, to provide some introductory overview before turning to her Honour’s key findings, and introducing and considering the key issues on the He and NZ Parties’ appeals.

Background facts

1. [11]

   Mr He and Ms Lu are husband and wife. In 2014, they together incorporated Sunnya and were its majority shareholders and directors. By mid-2018, when the He Parties sold 51% of their interest in Sunnya to Jaternergy Pty Ltd, a company associated with Jatcorp Ltd (Jatcorp) pursuant to a Share Purchase Agreement (SPA), Sunnya’s business involved the export and sale of formulated milk powder products from Australia and New Zealand to the People’s Republic of China under the brand name “Neurio”. The primary judge extracted the following description of the Neurio brand from a document which had evidently been prepared in relation to the share sale:

2. [12]

   Announcements at the time of the execution of the SPA referred to synergies that would be secured by reason of combining Sunnya’s incipient export business with Jatcorp’s existing Chinese online platforms and offline distribution channels. These synergies were expected to, and did, generate higher growth rates and profitability.

3. [13]

   Following execution of the SPA, Sunnya became the owner of the registered Neurio trade marks in Australia, New Zealand and Indonesia. The Neurio trade marks in China were held by GABT. GABT was registered in China by Ms Lu, and her brother, Mr Lu. Until 10 March 2023, Mr He held 95% of the shares in GABT, with the remaining 5% held by Mr Lu. Ms Yanping Lu, Ms Lu’s sister, is GABT’s “Supervisor”.

4. [14]

   GABT initially acted as Sunnya’s import agent in China, although that role was later taken over by Guangzhou Niurui Trading Co Ltd (GNT), another company registered in China with two of its three shareholders being Ms Yanping Lu and Ms Aiping Zhang, Ms Lu’s sister and sister-in-law respectively.

5. [15]

   The primary judge found that there was a cooperative relationship between Sunnya and GABT in relation to Sunnya’s use of the Neurio trademark in China. This cooperative relationship was manifested by a “letter of statement” of 17 June 2019 which referred to a “cooperation relationship” between GABT and Sunnya which included the statement that GABT was taking steps to transfer the Neurio trademark in China to Sunnya (which never in fact transpired), and a letter of authorisation dated 1 January 2021 by which GABT purported to give and authorise Sunnya “permanent rights to use” various Neurio trademarks registered in China: PJ [80]-[81], [179]. Her Honour held that “the export of Sunnya’s Australian and New Zealand manufactured Neurio-branded products to China was a significant part of Sunnya’s business, and that GABT did in fact facilitate the distribution and sale of those products in China until October 2022”: PJ [84].

6. [16]

   The cooperative relationship was consistent with cl 4.2(a) of the SPA by which the He Parties, as vendors, had promised that they would cause the business to own and carry on before and after completion “the right to sell Neurio-Health products in Australia and China, including any further registered infant formula…”. The business was, of course, that of Sunnya.

7. [17]

   The Neurio-branded products exported to and sold in China by Sunnya were produced by third party manufacturers. Those third parties included Supermega, and the products supplied by Supermega to Sunnya were manufactured by Megadairy, a company also registered in New Zealand. Mr Yi Wu was the sole director of both Supermega and Megadairy as well as a third company, NZFDA.

8. [18]

   Of importance to the success and value of the export business was the fact that products were manufactured in New Zealand under the New Zealand Neurio trade mark, this evidently conveying a level of quality assurance. Thus, products exported from New Zealand to China by Sunnya carried the New Zealand trade mark which Sunnya owned.

9. [19]

   The He Parties remained as directors and employees of Sunnya following Jatcorp’s acquisition of a 51% controlling interest in 2018. Their 49% shareholding in Sunnya was held on trust for them by All168 Pty Ltd (All168) with Mr He and Ms Lu each holding 50% of the shareholding in All168. Following the SPA, Jatcorp appointed two additional directors to the board of Sunnya.

10. [20]

    Between June and September 2022, changes were made in Jatcorp’s management and new Jatcorp directors were appointed to Sunnya’s board. At 2.18pm on 21 October 2022, Jatcorp notified the He Parties of its intention to increase its representation on the board of Sunnya from two to three directors and issued a notice calling for an extraordinary general meeting (EGM). The notice stated:

11. [21]

    At 9.01 pm on 21 October 2022, Mr Lu, on behalf of GABT, wrote to Mr He and Ms Lu in their capacity as directors of Sunnya as follows (the Termination Notice):

12. [22]

    The primary judge made unchallenged factual findings that the Trademark Registration Authorisation Agreement was not a genuine agreement entered into between GABT and Sunnya and was created by the He Parties “for the purpose of manufacturing a false basis for Sunnya to transfer the Australian and New Zealand Neurio trade marks to GABT in late October and early November 2022, so as to assist the He Parties’ defence of the Sunnya proceedings”: PJ [555].

13. [23]

    The Trademark Registration Authorisation Agreement attached to the Termination Notice purported to provide that:

14. [24]

    The Agreement was purportedly signed on 16 December 2014 by Mr He on behalf of Sunnya and his brother in law, Mr Lu, on behalf of GABT. There was no appeal from the primary judge’s finding that this document had been fabricated.

15. [25]

    The issue of the Termination Notice, terminating the cooperation relationship between GABT and Sunnya and requiring the transfer of the registered ownership of the Australian and New Zealand Neurio trade marks to GABT, in order to enable GABT to manufacture Neurio-branded products in Australia and New Zealand for export and sale in China without any involvement of Sunnya and without any benefit passing to Sunnya, was referred to in the proceedings at first instance as “Plan A”: PJ [759].

16. [26]

    Significantly, as the primary judge found, notwithstanding the serious adverse consequences for Sunnya if the Termination Notice were valid, and if Sunnya were required to comply with GABT’s demands to transfer the Australian and New Zealand Neurio trade marks, Mr He did not inform the Jatcorp-nominated directors of Sunnya, or any other representative of Jatcorp, about the Termination Notice when he received it from GABT. Nor did Mr He convene a meeting of Sunnya’s board to discuss the notice and Sunnya’s response to it. Rather, Mr He withheld the notice from Jatcorp and the Jatcorp-nominated directors of Sunnya at the time, for a period of ten days until 31 October 2022: PJ [699].

17. [27]

    Between 23 October 2022 and 1 November 2022, the He Parties took steps to effect the transfer of the Australian, New Zealand (and Indonesian) Neurio trade marks from Sunnya to GABT with the consequence that GABT could manufacture Neurio-branded products in Australian and New Zealand for export to and sale in China, without involving or benefitting Sunnya. The He Parties took these actions surreptitiously. As the primary judge held, they did so purportedly in their capacity as directors of Sunnya, without informing the Jatcorp-nominated directors of Sunnya, or any other representative of Jatcorp, of their actions that would remove the foundation of Sunnya’s business: PJ [700].

18. [28]

    There was no proper basis for the transfers of the trade marks. The primary judge noted that the sole justification advanced by Mr He and Ms Lu for their conduct in seeking to transfer the Australian, New Zealand and Indonesian Neurio trade marks to GABT was that Sunnya held the trade marks on behalf of GABT pursuant to the agreements purportedly dated December 2014 and January 2020 referred to in the Termination Notice (and which, as noted above at [22], her Honour found to have been fabricated), and that GABT was entitled to require the trade marks to be transferred to it at any time: PJ [701].

19. [29]

    The EGM of Sunnya, for which notice had been given on 21 October 2022 (see [20] above), was brought forward to 31 October 2022 and it was only then that Mr He informed the Jatcorp-nominated directors of Sunnya about the Termination Notice. As the primary judge held, earlier that same day, GABT had become the registered owner of the Australian Neurio trade marks, and had entered into eleven contracts with Supermega which the primary judge found Ms Lu had negotiated on GABT’s behalf for the manufacture and supply of 190,000 cans of Neurio-branded products to be exported to China: PJ [705]. These actions were held to have been in breach of fiduciary duty (PJ [741]) and there is no appeal from this finding or the declarations made to this effect.

20. [30]

    Due to the He Parties having failed to explain their conduct in effecting the trade mark transfers and having failed to attend a board meeting of Sunnya on 2 November 2022, the Sunnya Parties commenced proceedings on 3 November 2022 seeking relief pursuant to s 237 of the Corporations Act 2001 (Cth) (Corporations Act) against Mr He and Ms Lu for alleged breaches of their statutory and fiduciary duties by taking steps in late October and early November 2022 to transfer the Neurio trademarks to GABT for no consideration.

21. [31]

    Interim orders were made in the proceedings below between 3 November and 10 November 2022. These required GABT to transfer the Australian Neurio trade marks back to Sunnya, and precluded Mr He, Ms Lu or GABT from taking any further steps to transfer the New Zealand or Indonesian Neurio trade marks to GABT. These orders in effect put an end to Plan A as described at [25] above (which recognised the importance of the ownership of the Australian and New Zealand trade marks which had been surreptitiously transferred or were in the process of being transferred from Sunnya to GABT for no consideration purportedly pursuant to the fabricated Trademark Registration Authorization Agreement by deed of assignment signed by the He Parties, their daughter and Ms Lu’s brother.)

22. [32]

    From 31 October to 8 November 2022, Ms Lu on behalf of GABT negotiated eleven contracts with Supermega for the manufacture and supply of Neurio-branded products to GABT. The primary judge inferred at PJ [708] that the He Parties undertook these actions:

23. [33]

    What was described in the proceedings as Plan B (and described by the primary judge as a continuation of Plan A and which gave rise to what were described as the Neurio/NRIO claims) involved:

    1. (1)

       Mr He and Ms Lu’s resignation as directors of Sunnya on 25 November 2022;

    2. (2)

       the registration, at Mr He’s request of the NRIO trade mark by Sunlife (a company controlled by Mr He and Ms Lu’s daughter, Yaqing He as noted at [9] above) in Australia and New Zealand on the same day;

    3. (3)

       the registration of the NRIO trade mark by GABT in China on 6 December 2022; and

    4. (4)

       the manufacture of NRIO-branded formulated milk powder sachets by Megadairy in New Zealand which:

24. [34]

    Between 7 December 2022 and 12 January 2023, Supermega also entered into ten contracts with GNT for the manufacture and supply of Neurio-branded products. Seven of the ten contracts listed Shanghai Gainful Industrial Co Ltd (Shanghai Gainful) as the import agent for GNT.

25. [35]

    In about March 2023, NZFDA became the registered owner of the “Guamis” and “NRIO” trademarks in Australia and New Zealand. Those trademarks were formerly held by Sunlife: PJ [378], [455]. This transfer and NZFDA’s receipt of the NRIO trade mark was the subject of order 48 by the primary judge, referred to at [9] above.

26. [36]

    In about late March or early April 2023, the NRIO trade mark began to appear on Neurio-branded products on shelves in China. On 4 April 2023, GABT’s website “neurio.com.cn”, which it described as the “Official Website of the Australian Brand Neurio”, published notices referring to the “upgrade” of the Neurio trade mark to include the NRIO trade mark. The images in the notices depicted the addition of the NRIO trade mark on the tin as well as on the sachets of milk product.

27. [37]

    This post-resignation conduct (including the entry into contracts by GABT and GNT with Supermega and Megadairy) comprising Plan B was held by the primary judge to be in breach of the He Parties’ continuing fiduciary obligations in circumstances where the Canadian Aero principles (see [3]-[4] above) had been engaged: PJ [804].

28. [38]

    By the time of the hearing before the primary judge, the Sunnya Parties’ claims had expanded to include some 200 claims for relief against the He Parties and also against GABT, GNT, Sunlife, Ms He and the NZ Parties. Relevantly for the purposes of these appeals, those claims, as summarised by the primary judge at PJ [459], included that the He Parties had:

29. [39]

    The Sunnya Parties also claimed that each of GABT, GNT, Sunlife, Ms He and the NZ Parties was knowingly concerned in the He Parties’ alleged contraventions of ss 180, 181 and 182 of the Corporations Act and/or knowingly assisted the He Parties’ breaches of fiduciary duty.

Proceedings at first instance and primary judgment

1. [40]

   The hearing before the primary judge took place over some 15 days in November and December 2023. Concurrent with that hearing was the hearing of another proceeding brought by Mr He and Ms Lu disputing the validity of the Sunnya EGM and board meeting of 31 October and 2 November 2023 respectively: PJ [993]. A large volume of evidence was adduced in the proceedings comprising over 15,000 pages of documentary evidence, reports of forensic accounting experts tendered by both the Sunnya Parties and the He Parties and the oral and affidavit evidence of witnesses called by both the Sunnya Parties, namely Mr Wang, Mr Zhang and Ms Chen, and the NZ Parties, namely Mr Wu.

2. [41]

   None of the He Parties gave evidence in the proceedings. Mr He and Ms Lu departed the jurisdiction shortly before the hearing and Ms He failed to attend the hearing. The Sunnya Parties tendered as admissions, or for non-hearsay purposes, various statements made by Mr He, Ms Lu and Ms He in affidavits served by the He Parties prior to the hearing but which were not read at the hearing.

3. [42]

   The hearing at first instance dealt with all questions other than questions of the quantum or compensation the Sunnya Parties were entitled to in relation to established breaches of statutory and fiduciary duties.

4. [43]

   The primary judge found that the Sunnya Parties had failed in respect of (1) the undervalue sales claims, (2) the commercial invoices claims, (8) the improper Neurio products claims, (7) the sale of destroyed products claims, (9) the sale of written off products claim and (5) the European trade mark claim: PJ [1039], [1041], [1043]. Challenges to some of these conclusions are dealt with in the companion judgment dealing with Sunnya’s appeal: see [2] above. Her Honour upheld (4) the trade mark transfer claims and also (3) the improper Neurio contract claims, but only in relation to some of the impugned contracts, and only as against Mr He, Ms Lu and GABT: PJ [1042].

5. [44]

   In relation to (6) the Neurio/NRIO claims, the primary judge upheld the claims relating to breaches of fiduciary duties (other than in relation to the six contracts between GABT and Supermega from March to September 2022) by the He Parties. Her Honour also upheld related knowing assistance claims against Sunlife but only after May 2023: PJ [1042]. The Sunnya Parties additionally succeeded in their claims that GABT had knowingly assisted those breaches of fiduciary duty and had acted in concert with the He Parties during part of the period in which the breaches occurred. The primary judge also upheld the claims that the NZ Parties had knowingly assisted the He Parties in their breaches of fiduciary duty: PJ [1042].

6. [45]

   Key parts of her Honour’s reasoning are contained at PJ [708], as set out at [32] above.

7. [46]

   At PJ [795]-[796], her Honour held that:

8. [47]

   The primary judge went on to find (at PJ [800]) that the resignation of Mr He and Ms Lu as directors of Sunnya on 25 November 2022 was “in order to distance themselves from the company immediately before embarking on their endeavour to register the NRIO trade mark through Sunlife and to procure the manufacture of NRIO-branded products in New Zealand for the benefit of GABT, with the intention and purpose that I have found at [795]-[796]”.

9. [48]

   Her Honour held (at PJ [802]-[803]) that:

10. [49]

    In relation to the failure of Ms Lu, Mr He and Ms He to give evidence in the proceedings, the primary judge held that that failure was unexplained in a sense that could attract the rule in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel): PJ [541]. That rule, of course, allows for the more comfortable drawing of inferences which are otherwise available on the evidence.

11. [50]

    The primary judge held that Supermega and Megadairy knowingly assisted both Mr He and Ms Lu’s dishonest and fraudulent breaches of fiduciary duty from December 2022 by “contracting to supply (in the case of Supermega) and by manufacturing (in the case of Megadairy) the NRIO-branded sachets of formulated milk powder products with the knowledge that those products would be marketed and sold in Neurio/NRIO tins in China, as subsequently occurred”: PJ [838]. Central to her Honour’s findings was a consideration of Mr Wu’s knowledge, which was accepted by the NZ Parties as being attributable to Supermega, Megadairy and NZFDA: PJ [834]. The primary judge enumerated at PJ [835]-[836] ten propositions of which Mr Wu was found to have been aware during the relevant period:

12. [51]

    The primary judge concluded that those ten propositions, taken as a whole, “amounted to knowledge of the essential matters comprising Mr He and Ms Lu’s dishonest and fraudulent breaches of fiduciary duty diverting to GABT Sunnya’s business of selling Australian and New Zealand manufactured Neurio-branded products or, alternatively, knowledge of circumstances which would indicate those essential matters to an honest and reasonable person in Mr Wu’s position”: PJ [837].

13. [52]

    At PJ [839], the primary judge granted relief in respect of the Neurio/NRIO claims in the following terms:

14. [53]

    The primary judge then turned to consider NZFDA’s liability under the second limb of Barnes v Addy, having found that the first limb was not satisfied on the basis that the New Zealand NRIO trade mark was not the property of Sunnya: PJ [842]-[843], [848]. Her Honour held that, having regard to the ten propositions outlined at [50] above, by receiving the transfer of the New Zealand NRIO trade mark from Sun Life, “NZFDA knowingly assisted Mr He and Ms Lu’s dishonest and fraudulent scheme by facilitating the registered ownership of the trade mark being held by an entity that was not yet a defendant to the Sunnya proceedings while Sunlife continued to market the NRIO-branded milk powder sachets manufactured by Megadairy in New Zealand under the Neurio brand in China”: PJ [844].

15. [54]

    Her Honour further held that that the Plaintiffs were entitled to orders restraining NZFDA from taking steps to “market, manufacture, sell, distribute, or export” any NRIO branded product or any product that is to be “sold to ultimate consumers in China in Neurio-branded packaging to or for any person other than Sunnya”: PJ [847].

The appeals

1. [55]

   The three appeals before the Court were, in short summary, as follows:

   1. (1)

      2024/171961 (the He Parties’ Appeal) appealing from the orders made by the primary judge in relation to those parts of the Neurio/NRIO claims against Mr He and Ms Lu for breaches of fiduciary duties that were upheld;

   2. (2)

      2024/161624 (the NZ Parties’ appeal) appealing from the orders made by the primary judge in relation to those parts of the Neurio/NRIO claims against the NZ Parties for knowingly assisting Mr He and Ms Lu’s breaches of fiduciary duties that were upheld; and

   3. (3)

      2024/183502 (the Sunnya Parties’ appeal or the Cross Appeal) appealing from the primary judge’s dismissal of the under value sales claims and commercial invoices claims against Mr He, Ms Lu and GNT, the improper Neurio product claims against each of Mr He, Ms Lu, GABT, GNT, Supermega and NZFDA and the Neurio/NRIO claims against GNT. As already noted, this appeal is addressed in the companion judgment.

2. [56]

   The He Parties raised the following grounds of appeal:

3. [57]

   Dr Baron Levi, counsel for the He Parties, accepted in argument that a “significant amount” of the He Parties’ appeal turned on success under ground 4: Transcript, 25 November 2024, p13 lines 22-28. This concession reflected his argument that it was speculative for her Honour to have found that the He Parties encouraged GABT to terminate the cooperation relationship with Sunnya and that an equally available inference was that GABT reached this decision independently and without the encouragement of the He Parties and that, if this was the case, Sunnya would not have been able to pursue its business in China such that there was no business opportunity of Sunnya able to be diverted. As will be seen, the primary judge was correct in my view in holding that Mr He and Ms Lu encouraged GABT to terminate the cooperation relationship with Sunnya, and ground 4 must fail, and with it at least ground 3 and, as was implicit in the concession, ground 1 as well.

4. [58]

   Ground 1 of the NZ Parties’ Appeal mirrored ground 3 of the He Parties’ Appeal and ground 3 of the NZ Parties’ appeal mirrored the He Parties’ appeal ground 5. The NZ Parties also raised two additional grounds of appeal:

Ground 4 of the He Parties’ Appeal

1. [59]

   Given Dr Baron Levi’s concession as referred to in [57] above, it is convenient to commence with consideration of ground 4 of the He Parties’ appeal.

2. [60]

   By this ground 4, the He Parties challenged the primary judge’s findings (at PJ [693], [708], [719] and [802]) that Mr He and Ms Lu had “encouraged”, and not merely “endorsed”, the termination of the cooperation agreement between Sunnya and GABT in relation to the use of the Chinese Neurio trade mark. As already noted, Dr Baron Levi accepted in the course of oral argument that each of the other grounds of appeal raised in the He Parties Appeal, with the exception of ground 5 challenging the extent of the restraints imposed on the He Parties, were contingent upon the success of ground 4.

3. [61]

   At PJ [693], the primary judge held that:

4. [62]

   The He Parties did not dispute that it was Mr He who informed GABT as to the EGM and the proposed resolutions but contested the finding that Mr He informed GABT that the proposed resolutions “would result in Mr He and Ms Lu no longer having effective control over Sunnya”. It was put that this finding, although “only a small thing”, was “gratuitous and unfounded in circumstances where such a fact would be plain to any cogent reader of the notice”. This point may be put to one side as Dr Baron Levi, having raised it both in writing and oral argument, almost immediately volunteered that “in the end, nothing really turns on that contest”. I agree.

5. [63]

   In relation to the primary judge’s finding that Mr He “used his influence derived from his majority shareholding in GABT to encourage the issue of the GABT Termination Notice”, the He Parties submitted that there was no evidence that GABT required any encouragement to issue the Termination Notice and that there was at least an equally compelling inference that GABT, upon learning about the EGM at which additional Jatcorp directors were to be appointed, independently took actions in its inherent commercial interests, and which were in the interest of its primary shareholder, Mr He, to terminate the cooperation agreement with Sunnya.

6. [64]

   The forensic significance of GABT terminating the cooperation arrangement with Sunnya of its own accord, as it were, and without the encouragement of Mr He and his wife, was seemingly to found an argument that, without GABT’s cooperation, Sunnya would have had no opportunity in China to exploit and, thus, the He Parties could not be found liable for breach of fiduciary duty in pursuing such an opportunity other than through Sunnya. If, however, GABT was encouraged to the position it took by the He Parties, they could not rely on their later resignation as directors to bring an end to their fiduciary obligations to Sunnya. (This is why any success on ground 1 of the He Parties’ appeal is linked to success on ground 4).

7. [65]

   Considerable time was spent in oral argument emphasising that, while the primary judge indicated in various paragraphs of her judgment that the He Parties had “encouraged” GABT to terminate the cooperation arrangement (see, for example, PJ [693]; [708]; [719]), at PJ [802], her Honour held that the He Parties “encouraged or endorsed” the sending of the Termination Notice which brought to an end the cooperation between Sunnya and GABT. Read as a whole, her Honour must be taken to have found that the He Parties encouraged GABT to send the Termination Notice. The primary judge said so expressly on no fewer than three occasions in her reasons. Her alternative use of the word “endorse” at PJ [802] does not, in context, imply approval after the event but, rather, approval in advance. Such submissions unduly sought to “read the reasons for judgment minutely, with an eye keenly fixed on minor textual variations which, if appearing in a statute, might carry significant weight”: M Leeming, Common Law, Equity and Statute: A Complex Entangled System (2023, Federation Press) at 90.

8. [66]

   Further, her Honour’s conclusion that the He Parties encouraged GABT to issue the Termination Notice was based upon an inference which was open to her Honour and which, on a rehearing, is comfortably able to be drawn by this Court.

9. [67]

   Mr He controlled 95% of GABT and was identified in a company extract as the “actual controlling person” of GABT: PJ [6]. GABT’s Executive Director was his brother-in-law, Mr Lu. Mr He and Mr Lu were signatories to the fabricated purported 2014 Trademark Registration Authorization Agreement which was attached to the Termination Notice. That fabricated document was expressly referred to in the Termination Notice and was designed fraudulently to provide GABT with authority to terminate GABT’s relationship with Sunnya: see [21]-[22] above. It is inconceivable that Mr He would have been a party to such a document without knowing why it was being brought into existence and the use intended to be made of it. Had he not approved of it and known and approved of its use, he would not have lent his signature to the document. As was submitted by Mr Foreman SC on behalf of Sunnya:

10. [68]

    Mr He, moreover, as the 95% controlling shareholder in GABT, had the clear economic incentive to effect the termination of relations with Sunnya, especially in circumstances where it was he and his wife (Mr Lu’s sister) who had just lost management control of Sunnya. One would not expect a director of a company such as GABT to bring an existing, otherwise profitable relationship with Sunnya to an end without the encouragement or approval of its 95% shareholder. That was all the more so when that shareholder was his brother-in-law. This analysis is further strengthened when regard is had to GABT’s Articles of Association, to which the primary judge referred at PJ [176], including that:

11. [69]

    In written submissions, the He Parties contended that GABT “did not need Sunnya’s right to the trade marks in Australia and New Zealand, because the mark could be applied in China even if the product was manufactured in Australia”. This submission is entirely at odds with GABT’s attempts to have the Australian and New Zealand trade marks transferred to it, and the lengths that it went to, with the support of its dominant shareholder, Mr He, to fabricate agreements calculated to provide a basis for the demand for retransfer.

12. [70]

    There was, with respect, a complete unreality to Dr Baron Levi’s submissions that Mr Lu, as the Executive Director of GABT, was acting quite independently of the He Parties and without receiving their encouragement as to the strategy put in place by the Termination Notice. That is in part illustrated by the fact that it was Ms Lu, and not her brother, who arranged the entry by GABT into the eleven contracts with Supermega between 31 October and 8 November 2022 to which the primary judge referred at PJ [708] (see [32] above), notwithstanding that she did not appear to hold any office in GABT. The volume of milk products the subject of these contracts was more than the total volume manufactured and exported under the six contracts entered into during the six-month period to September 2022: PJ [685].

13. [71]

    Her Honour’s impugned conclusion challenged by ground 4 was also supported by the “events that occurred in the ten days following” the Termination Notice to which the primary judge referred at PJ [693] and which were in addition to what has been noted in the previous paragraph. These included Mr He’s failure to inform Jatcorp, or its nominee directors, of the Termination Notice (PJ [699]); the steps which he took to effect the transfers of trade marks (PJ [700]-[703]); his objection to bringing forward the EGM of Sunnya to 31 October (PJ [704]); and his informing Jatcorp’s directors of the Termination Notice only after the EGM was held on 31 October 2022: PJ [705].

14. [72]

    I also accept Sunnya’s submission that drawing the inference that Mr He and Ms Lu encouraged the termination of the cooperation arrangement was consistent with and supported by the primary judge’s (unchallenged) finding that Mr He and Ms Lu had the intention and purpose of diverting to GABT Sunnya’s business of selling Australian and New Zealand-manufactured Neurio-branded products in China: PJ [708].

15. [73]

    The inference which the primary judge drew, and which I would also draw, was able to be drawn more comfortably because of the failure of Mr He, Ms Lu and Mr Lu to give evidence: Jones v Dunkel at 308, 312, 320-321; Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165]-[167], [232]; Jagatramka v Wollongong Coal Limited [2021] NSWCA 61 at [49]. I reject the submission that her Honour’s finding was speculative and that Sunnya did not establish it on the balance of probabilities.

16. [74]

    The primary judge was justified in her conclusion at PJ [711] that:

17. [75]

    It was also submitted orally on appeal that the Sunnya parties did not plead that the encouragement or termination of the cooperation agreement between Sunnya and GABT was a breach of fiduciary duty in relation to the Neurio/NRIO claim. This aspect of the argument can be dealt with briefly. By way of a Third Further Amended Statement of Claim filed on 1 November 2023, the Sunnya parties pleaded that:

18. [76]

    The Sunnya Parties also pointed to the following passages of their pleadings:

19. [77]

    By way of their Defence filed on 22 November 2023, the He Parties denied paragraph 122A of the Third Further Amended Statement of Claim.

20. [78]

    In my view, Mr He’s encouragement of GABT issuing its Termination Notice was sufficiently pleaded. Part of that Termination Notice included the purported termination of a suite of agreements which were signed by Mr He but found to have been fabricated.

21. [79]

    Ground 4 of the He Parties’ appeal must be dismissed.

Grounds 1 and 3 of He Parties’ appeal and ground 1 of the NZ Parties’ appeal

1. [80]

   These grounds can be treated together (as they were in written submissions) and with relative brevity by reason of the acceptance by Dr Baron Levi that success or failure in the appeal principally turned on achieving success under Ground 4 of the appeal which has been dealt with above.

2. [81]

   Grounds 1 and 3 have been reproduced at [56] above. As noted at [3], it was not controversial that, as a matter of principle, a fiduciary’s obligations as a director of a company may continue post-resignation in certain circumstances. The issue was whether those circumstances existed in the present case. The primary judge held that they did and that the opportunity that the He Parties continued to pursue after their resignation as directors of Sunnya existed (and was being exploited by Sunnya) prior to their resignation. As such, their actions not only before their resignation but also after were held to amount to a breach of continuing fiduciary obligations, consistent with the principles closely associated with Canadian Aero.

3. [82]

   These post-resignation activities relied upon by the primary judge, as identified by the He Parties in their submissions, included the following:

   1. (1)

      Ms He, acting at the request of her father, causing Sunlife to apply for the registration of the NRIO trade mark in Australia and in New Zealand on 25 November 2022 with Mr He carrying out some preparatory work for the applications to register the NRIO trade mark in Australia and New Zealand prior to 25 November 2022, including designing the NRIO logo;

   2. (2)

      Mr He and Ms Lu resigning as directors of Sunnya on 25 November 2022 in order to distance themselves from the company immediately before embarking on an endeavour to, inter alia, procure the manufacture of NRIO-branded products in New Zealand for the benefit of GABT, and allowing GABT in China to capitalise on the established Neurio brand, [that being the established business by which the Australian and New Zealand branded Neurio products were being imported into China];

   3. (3)

      During the period from at least 25 November 2022, GABT and Mr He and/or Ms Lu were in communication with one another about, and were aware of, and encouraged and endorsed, all of one another’s activities. The essential plan was that between them, they would hold the rights to use the NRIO trade mark for the manufacture of formulated milk powder products in Australia and New Zealand, and for the sale of those products in China where GABT would have the rights to both the Neurio and the NRIO trademarks, and that those products would be packaged, marketed and sold by GABT in China using the Neurio brand in conjunction with the NRIO brand. During that same period, the He Parties expressly or impliedly encouraged or endorsed GABT’s actions;

   4. (4)

      GABT applying to register the NRIO trade mark in China on 6 December 2022;

   5. (5)

      Ms Lu negotiating, on behalf of a Chinese company associated with GABT, the manufacture and supply of NRIO-branded sachets of formulated milk powder with lactoferrin on 7 December 2022 which were delivered before April 2023; and

   6. (6)

      In early April 2023, GABT publishing notices associating the Neurio and NRIO brands, as part of actively marketing Neurio/NRIO co-branded cans in China as a new or upgraded version of the Neurio brand of formulated milk powder products, and marketing itself as the company behind the “Australian Brand Neurio”. These cans were manufactured by Megadairy and supplied by Supermega.

4. [83]

   In relation to this last matter, the primary judge referred to three notices extracted from the “corporate notices” tab of GABT’s website “neurio.com.cn” on 6 April 2023 and observed at PJ [359]:

5. [84]

   The essence of the He Parties’ argument under ground 1 was encapsulated in the following two paragraphs of the written submissions:

6. [85]

   This description of Plan B as “involving the exploitation of GABT’s Chinese Neurio trademarks” fundamentally under-describes the essence of the plan which her Honour found at PJ [795] was essentially a continuation of Plan A, albeit by different means and following the failure of Plan A as a result of the Court’s interlocutory orders requiring retransfer of the trademarks. The purpose of Plan A was to secure the transfer of the Australian and New Zealand Neurio trade marks from Sunnya so as to permit the He Parties, via GABT or other entities which they controlled, to use those trade marks to secure the benefits and opportunities which Sunnya had begun to exploit in China. That Plan B was a continuation of Plan A is highlighted by the matters the primary judge emphasised in PJ [359] extracted above at [83]. Plan B was not designed to embark on a “fresh initiative” in the sense used in some of the cases but rather was an attempt to exploit the opportunity that had been developed in China by Sunnya in the preceding years. As the primary judge held at [803]:

7. [86]

   Insofar as the He Parties submitted in writing that the scope of their fiduciary obligations did not extend over opportunities “which it was impossible for Sunnya to exploit”, it is well established that there may still be a breach of fiduciary obligations if the party or person to whom those obligations are owed is unable to exploit (or fully exploit) the opportunities in question: Birtchnell v Equity Trustees, Executors and Agency Co Ltd (1929) 42 CLR 384 at 408-409; [1929] HCA 24; Furs Ltd v Tomkies (1936) 54 CLR 583 at 592; [1936] HCA 3; Canadian Aero at 611; Warman International v Dwyer (1995) 182 CLR 544 at 558; [1995] HCA 18 (Warman); Addstead Pty Ltd (In Liq) v Liddan Pty Ltd (1997) 70 SASR 21 at 44, 59; (1997) 25 ACSR 175; Murdoch v Mudgee Dolomite & Lime Pty Ltd (In Liq) (2022) 398 ALR 658; [2022] NSWCA 12 at [112], [115]. Indeed, in oral submissions, Dr Baron Levi said:

8. [87]

   For the above reasons, grounds 1 and 3 of the He Parties’ appeal must be dismissed as must ground 1 of the NZ Parties’ appeal.

Ground 2 of the He Parties’ Appeal

1. [88]

   By ground 2 of their appeal, the He Parties submitted that the primary judge ought to have made a factual finding that Sunnya would contravene the law of the People’s Republic of China by exporting Neurio-branded products to China without the consent of GABT which was the owner of the Neurio trade marks in China.

2. [89]

   This argument was not developed in oral submissions. The primary judge explained why it was not necessary to determine the issue (at least on the question of liability) at PJ [802], reproduced at [48] above. The ability or inability of Sunnya to continue to be able to exploit the corporate opportunity it was successfully exploiting in China prior to the breaches is legally irrelevant, as the primary judge held in accordance with the authorities collected in [86] above.

3. [90]

   It follows that ground 2 of the He Parties’ Appeal must be dismissed.

Ground 5 of the He Parties’ Appeal

1. [91]

   Ground 5 of the He Parties’ appeal was directed to the width of the injunctive relief granted by the primary judge in relation to the Neurio/NRIO claims. That relief was in the form of orders restraining Mr He and Ms Lu:

2. [92]

   The He Parties made three arguments in relation to the breadth of the injunctive relief ordered by the primary judge.

3. [93]

   First, it was contended that the injunctive relief was overly broad in the sense that it would simultaneously compensate Sunnya for the loss of an opportunity which it was not possible in law for it to exploit and prohibit the He Parties from lawfully exploiting that opportunity. That argument is met by the principles and authorities set out in [86] above.

4. [94]

   As submitted by the Sunnya Parties in response, there is no merit to the He Parties’ contention that the Sunnya Parties should not obtain the benefit of the injunctions as well as equitable compensation. The restraints were directed to the prevention of any prospective benefit to the He Parties associated with the breaches of their fiduciary duty while the order for equitable compensation was directed towards compensating the Sunnya Parties for the losses already incurred by Sunnya associated with the loss of its business of selling Australian and New Zealand Neurio-branded products into China.

5. [95]

   Secondly, the He Parties contended that the injunctive relief granted by the primary judge failed to take into account the time period over which the restraint arising from the breach of fiduciary obligations operates. It was put that there was no basis for the indefinite time period of the restraint in circumstances where it had been several years since the relevant opportunity ceased to be available to Sunnya and since the He Parties had resigned.

6. [96]

   In oral argument, Dr Baron Levi put that, in this respect, the Court ought to be guided by the principles that apply in terms of non-compete arrangements and that it is “very rare” that any restraint in that context would extend to a period of more than three years. Rather, he argued, any time limit affixed to the restraint ought to have already expired, or should expire in the next six months. The analogy with a contractual restraint is inapposite. The doctrines of equity properly insist upon a robust response to the violation of fiduciary obligations entailing a conflict of duty and interest, such as was found in the present case: Warman at 562-3. This was a clear case of a breach of continuing fiduciary duties and it was open to the primary judge to exercise her discretion in formulating the injunctive relief in the way she did.

7. [97]

   Further, given that the precise quantification of equitable compensation to be paid by the He Parties is to be addressed at the quantification stage of the proceedings, subject to an election being made between equitable compensation and an account of profits, the Sunnya Parties submitted that, in circumstances where there is no evidential foundation for a finding that the He Parties will in fact pay any equitable compensation, the restraints ordered by the primary judge should not be temporally limited.

8. [98]

   Thirdly, the He Parties submitted that the orders made by the primary judge have the effect of restraining the He Parties from involvement in the manufacture of generic products in Australia and New Zealand where the Neurio trade mark is affixed, with GABT’s consent, in China. It was put that there would be nothing unlawful about that conduct and it should not have been the subject of a restraint.

9. [99]

   Mr Foreman submitted in response that Sunnya’s business was, relevantly, the sale of Australian or New Zealand manufactured Neurio-branded products in China and that the breaches of fiduciary duties by the He Parties were not just the affixing of the Sunnya-owned Australian and New Zealand Neurio trade marks to the product which was exported to China but, rather, the use of the NRIO trade mark, in conjunction with the Chinese Neurio trade mark, to establish themselves as the Australian brand Neurio, thereby circumventing the protections afforded to Sunnya by its interest in the Australian and New Zealand Neurio trade marks and misappropriating Sunnya’s business.

10. [100]

    It was put that, notwithstanding the fact that the Neurio trade marks in China were owned by GABT, the conduct of the He Parties, particularly in circumstances where they had made a contractual promise by way of cl 4.2(a) of the SPA to carry on Sunnya’s business, meant they had forfeited the right to market anything as associated with the Neurio brand which was manufactured in Australia or New Zealand because, as evidenced by the marketing materials associated with the products, the place of manufacture was an integral part of Sunnya’s business.

11. [101]

    It was also put by the Sunnya Parties that, in a practical sense, in so far as submissions were made that the He Parties should be entitled to assist GABT in asserting its intellectual property rights in China, GABT had not sought to enforce those rights by appealing against the orders restraining it from “taking any steps to manufacture any NRIO-branded products in Australia or New Zealand, or to market, sell, distribute or export any such products” and from “taking any steps to manufacture in Australia or New Zealand any other products that are to be sold to ultimate consumers in China in packaging bearing the Neurio brand, or to market, sell, distribute or export any such products, to or for any person other than Sunnya”.

12. [102]

    By way of reply, the He Parties submitted that this did not account for the fact that GABT may, at some point in the future, seek a variation or setting aside of the restraints imposed on it. This last submission raised a hypothetical matter which is inconsistent with GABT’s evident lack of interest or involvement in the appeal. Were the hypothesis to materialise, any material change of circumstances may provide a basis for the He Parties to seek a variation of the injunctive relief granted. But for the reasons advanced by Mr Foreman on behalf of Sunnya and set out above, I am not convinced that the injunctive orders formulated by the primary judge and challenged in Ground 5 of the He Parties’ appeal were unreasonably or illegitimately broad. That ground of appeal should be rejected.

Ground 3 of the NZ Parties’ Appeal

1. [103]

   Ground 3 of the NZ Parties’ Appeal was also concerned with the breadth of the injunctions ordered by the primary judge in relation to the Neurio/NRIO claims and was largely equivalent to ground 5 of the He Parties’ appeal.

2. [104]

   Like the He Parties, the NZ Parties contended that the injunctions restraining Supermega and Megadairy were excessively broad in that they would prevent the sale of generic milk powder sachets to a purchaser (including GABT or the He Parties) in China to be placed in Neurio-branded cans. It was put that the manufacture of generic, unbranded product in New Zealand for ultimate sale in China in Neurio-branded cans would “involve nothing more than the exercise of the rights held by the NZ Parties and the rights of the registered owner of the Chinese Neurio trademarks.” The NZ Parties argued that the effect of the injunctions made by the primary judge was to confer “upon Sunnya legal protection over the Chinese Neurio trademarks which Sunnya had not secured by commercial dealing”.

3. [105]

   I do not agree. This submission ignores the context of the impugned conduct in relation to which the NZ Parties were held to have been accessorially liable.

4. [106]

   The injunctive relief ordered against the NZ Parties did not interfere with the rights of the registered owner of the Chinese Neurio trademarks and any such interference, in any event, was not a matter for the NZ Parties to agitate. Nor did the injunctions restrain the manufacture of generic, unbranded product in New Zealand by the NZ Parties provided it was unassociated with the Neurio brand that had been developed by Sunnya but in effect misappropriated by the He Parties with the knowing assistance of the NZ Parties.

5. [107]

   As with ground 5 of the He Parties’ Appeal, ground 3 of the NZ Parties’ Appeal must fail.

Ground 2 of the NZ Parties’ Appeal

1. [108]

   Ground 2 of the NZ Parties’ Appeal has been set out at [56] above. It was the subject of relatively brief written submissions in chief filed by Mr Gronow KC on behalf of the NZ Parties before he and his juniors withdrew from the case shortly before the hearing of the appeal. The thrust of those submissions on this ground of appeal was that, although it was accepted that, by April 2023, the NZ Parties, through Mr Wu, had sufficient knowledge for the purpose of the NZ Parties’ accessorial liability, there was insufficient evidence to justify the primary judge’s conclusion as to the requisite degree of knowledge from December 2022.

2. [109]

   The primary judge’s findings in relation to Mr Wu’s knowledge in the context of the findings of the accessorial liability of the NZ Parties have been set out at [50] above. The individual matters of which Mr Wu was found to have been aware and upon which the primary judge drew to found her ultimate conclusion on accessorial liability were not the subject of individual challenge by the NZ Parties in their written or oral submissions. Nor, it should be observed, was there any challenge to the primary judge’s strong conclusion that Mr Wu was not a credible witness.

3. [110]

   The NZ Parties’ submissions in support of this ground of appeal were flawed insofar as they asserted that the primary judge’s inference as to Mr Wu’s knowledge was drawn from a more limited set of circumstances than had in fact been relied upon by the primary judge, as pointed out by Sunnya in its written submissions. The primary judge’s reference to the requisite knowledge existing from December 2022 (as opposed to April 2023) was tied to the fact that it was in December 2022 that Mr Wu negotiated two contracts for the supply of NRIO-branded sachets to Shanghai Gainful. Her Honour’s findings as to Mr Wu’s knowledge were based in part on her assessment of Mr Wu’s prior dealings with the He Parties and Sunnya, a matter she dealt with in [792] of the primary judgment:

4. [111]

   This passage makes it abundantly clear that Mr Wu was cognisant of the developments that had been taking place during November 2022 in relation to the control of Sunnya including the commencement of these proceedings at first instance and the allegations made therein. The unchallenged findings as to Mr Wu’s dishonest evidence with regard to the state of his knowledge and his participation in the fabrication of documents for the purposes of the proceedings, as referred to in PJ [792], allowed the primary judge more comfortably to draw the inference she did as to Mr Wu, and therefore the NZ Parties’ knowledge for the purposes of her finding of accessorial liability and the time by which that knowledge was acquired.

5. [112]

   Her Honour was justified in finding that Mr Wu and thus the NZ Parties held the requisite knowledge for the purposes of Barnes v Addy liability from December 2022. Ground 2 of the NZ Parties’ Appeal should be dismissed.

Ground 4 of the NZ Parties’ Appeal

1. [113]

   This ground (see [56] above) is a narrow one and relates to orders 49 and 50 which were to the effect that:

2. [114]

   No argument was developed on behalf of NZFDA by way of challenge to order 48 to the effect that NZFDA was knowingly concerned in the breaches of fiduciary duty of Mr He and Ms Lu in the period from 31 March 2023 by holding the New Zealand registered NRIO trade mark from that date: see [9] above.

3. [115]

   The essence of NZFDA’s argument on appeal was that order 48 provided no foundation for the injunctive relief formulated in orders 49 and 50 because NZFDA did not manufacture, market, sell, distribute or export anything, nor permit any such thing to occur, and that there was no evidence to suggest that NZFDA might do so in future.

4. [116]

   Her Honour’s justification for orders 49 and 50 derived from NZFDA’s holding of the NRIO trade mark and was explained in PJ [846] by reference to her Honour’s assessment as to the existence of:

5. [117]

   On this footing, and contrary to NZFDA’s submission, it is not to the point that there was no evidence that NZFDA manufactured, marketed, sold, distributed or exported anything. Her Honour’s concern, in light of her adverse findings as to the knowing assistance that NZFDA had afforded to Mr He and Ms Lu, was that there was a risk that it, as the holder of the New Zealand NRIO trade mark, would permit it to be used in the manufacturing, marketing etc of product for ultimate sale in China. In view of the findings as to Mr Wu’s knowledge and his willingness to engage in false testimony in support of not only the defence of the NZ Parties’ position but also, in substance, the defence of Mr He and Ms Lu, the primary judge was entirely justified in assessing the existence of a risk that was addressed by the injunctive relief reflected in orders 49 and 50.

6. [118]

   It follows that ground 4 of the NZ Parties’ appeal should also be dismissed.

Costs

1. [119]

   In both appeals, costs should follow the event.

Orders

1. [120]

   I would propose that the following orders be made:

2. [121]

   LEEMING JA: I agree with the Chief Justice.

3. [122]

   BASTEN AJA: I agree with Bell CJ.