[2024] NSWSC 533

Nature’s Care Holdings Pty Ltd v Chen (No 5)

Undertakings varied

Catchwords

CIVIL PROCEDURE – inter partes undertakings – variation – undertakings not to act on behalf of the plaintiffs or give directions to plaintiffs’ employees – request by receivers of plaintiffs for assistance in relation to proposed regulatory audit

Cases cited

Nature’s Care Holdings Pty Ltd v Chen (No 2)[2024] NSWSC 107
Nature’s Care Holdings Pty Ltd v Chen (No 3)[2024] NSWSC 245
Nature’s Care Holdings Pty Ltd v Chen (No 4)[2024] NSWSC 379

Judgment

[1]
The background of this matter is set out in my earlier judgments. [1]
[2]
As I recorded in my 15 February 2024 judgment, the first and second defendants, Ms Chen and Mr Wu, had earlier given undertakings:
[3]
The undertakings were:
[4]
In my reasons of 15 February I said, incorrectly I think, that the undertakings were given “to Rees J”. In fact, those undertakings were given to the first plaintiff.
[5]
By Notice of Motion filed in Court on 3 May 2024 the defendants seek to have undertakings (c) and (e) discharged so far as concerns Mr Wu.
[6]
On 3 May 2024, I made orders and directions for the service of the motion and the evidence and the affidavits in support of the plaintiffs. Those directions have been complied with. There is no appearance on behalf of the plaintiffs. There is evidence that the receivers of a number of the plaintiffs themselves support orders being made to the effect of those sought by the second defendant and evidence showing that at least some of the other plaintiffs also support the application.
[7]
The background to the matter is otherwise conveniently set out in Mr Afshar's brief submissions in support of the application:
[8]
As I have mentioned, the undertakings were given to the first plaintiff rather than to the Court.
[9]
I discussed with Mr Afshar this afternoon whether, rather than the undertakings being unconditionally discharged, it would be more appropriate to limit them to reflect what the evidence shows Mr Wu's services are likely to be.
[10]
The result is that the orders I propose to make are as follows:
1. (1)
  The undertakings given by the second defendant as recorded in pars 6(c) and (e) in the orders made by Rees J on 22 January 2024, the extension of which was noted in par 11 of the orders made by Rees J on 23 January 2024 and which were varied by me on 3 May 2024, be varied by adding, in Iieu of the words in my order of 3 May 2024, the following words as a qualification to undertakings (c) and (e):
2. (2)
  I grant the second defendant liberty to apply on short notice to seek any further variation to its undertakings as may be necessary.
3. (3)
  I order those orders be taken out forthwith.