[2023] NSWSC 604

Tsai v Australia and New Zealand Banking Group Limited

Equitable discovery granted

Catchwords

CIVIL PROCEDURE – representative proceedings in Hong Kong – equitable discovery in aid of Hong Kong proceedings sought from defendant banks

Cases cited

Austin Engineering Pty Ltd v Podulova[2023] FCA 419
Breen v Williams (1996) 186 CLR 71;[1996] HCA 57
Computershare Ltd v Perpetual Registrars Ltd & Ors[2000] VSC 139
New Aim Pty Ltd v Leung[2021] FCA 1329
Norwich Pharmacal Co v Commissioners of Customs and Excise[1974] AC 133
Petrochemical Commercial Company International Ltd v Commonwealth Bank of Australia[2019] NSWSC 849

Legislation cited

Uniform Civil Procedure Rules 2005 (NSW)

Judgment

[1]
The plaintiffs, Tsai Lee Ting and Lee Ping Chen, are also the plaintiffs in representative proceedings commenced in the Hong Kong Court of First Instance. The plaintiffs have brought the Hong Kong proceedings on their own behalf and on behalf of 1,373 other investors who allege that they were fraudulently induced to invest in a Ponzi Scheme and/or fraudulent investment scheme by the “Best Leader Finance Group”.
[2]
There are 10 defendants in the Hong Kong proceedings, including two companies known as Best Leader Markets Pty Ltd, one being an Australian company and the other being a Hong Kong company.
[3]
On 20 January 2023, Lok J made ex parte orders in the Hong Kong proceedings which, amongst other things, imposed a proprietary injunction in respect of the two Best Leader Markets companies.
[4]
One of those orders was that those companies not dispose of, deal with or diminish the value of funds in a total of six nominated accounts (“the Accounts”) maintained with the three defendants to these proceedings, Australia and New Zealand Banking Group Limited, Commonwealth Bank of Australia and Westpac Banking Corporation (“the Banks”).
[5]
Each of the Banks has written to those representing the plaintiffs in Hong Kong, stating that none of the Accounts is operative in Hong Kong.
[6]
In those circumstances, the plaintiffs seek equitable discovery pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 1.4, and pursuant to the principles stated by the House of Lords in Norwich Pharmacal Co v Commissioners of Customs and Excise. [1]
[7]
As against the Banks, the plaintiffs seek orders requiring production of documents which would show dealings on the Accounts.
[8]
The stated purpose of the orders sought was to assist those advising the plaintiffs to:
[9]
The Banks did not oppose the orders sought by the plaintiffs.
[10]
On 25 May 2023, I made the orders sought by the plaintiffs. The form of those orders is attached to these reasons.
[11]
These are my reasons for making those orders.
[12]
The relevant principles were stated by Lord Reid in Norwich Pharmacal as follows:
[13]
It is now well established that the principles expressed in Norwich Pharmacal are not limited to identity discovery, but extend to information discovery, as is sought here. [3]
[14]
It is also now well established that Norwich Pharmacal relief may be granted in aid of foreign proceedings. [4]
[15]
Based on the material before me, I was satisfied that the plaintiffs have an arguable case that a wrong has been carried out by the named defendants in the Hong Kong proceedings, and also by another company, Imperial Company Pty Ltd, which is soon to be joined as a defendant in the Hong Kong proceedings.
[16]
I was also satisfied that the orders were necessary to enable the plaintiffs to seek legitimate redress for that wrongdoing.