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[2025] NSWSC 1615

Australian Capital Land Pty Limited v Ng;; Gateway Parramatta One Pty Ltd (In Liquidation) v Ng

Proceedings stayed

Catchwords

CIVIL PROCEDURE – stay of proceedings – concurrent civil and criminal proceedings – prejudice to defendants – Australian civil proceedings and Hong Kong criminal proceedings

Cases cited

  • Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153;[2016] FCAFC 97

Judgment

Summary

  1. [1]

    This judgment concerns substantively identical motions filed on 12 August 2025 in two proceedings: the ACL proceedings and the Gateway proceedings. On 8 December 2025 the Court heard and determined the motions, respectively brought by the defendants/applicants in the relevant proceedings for a stay of those proceedings. Both proceedings arise from the alleged misappropriations in Australia by the defendants of funds advanced from China.

  2. [2]

    Two of the natural defendants are now the subject of criminal proceedings in Hong Kong which they contend traverse the same subject matter as these two civil proceedings. While the defendants have filed defences in these proceedings, they have not yet filed any evidence.

  3. [3]

    The Court accepted the defendants’ submissions that there was a real risk of prejudice to the defendants in conducting their defences in the criminal proceedings if these proceedings were not stayed until the resolution of the criminal proceedings. The Court was satisfied that prejudice outweighed the prejudice (delay) that would be caused to the plaintiffs/respondents by a stay of these proceedings.

  4. [4]

    The Court made these orders in each proceeding at the conclusion of the hearing:

    1. (1)

      Grants leave to the defendants to file in Court the second affidavit of Sui Chung (Dominic) Wai sworn 4 December 2025.

    2. (2)

      Subject to order 3, the proceedings be stayed pursuant to section 67 of the Civil Procedure Act 2005 (NSW) and the inherent jurisdiction of the Supreme Court pending the date of resolution of criminal proceedings in Hong Kong criminal case ESCC 2887 of 2024, HKSAR v Ng Wai (the first defendant) and Han Shang-min (the second defendant).

    3. (3)

      The stay in order 2 does not prevent the plaintiffs from taking such steps as may be available to them under the Rules to obtain evidence from parties other than the defendants including, without limitation, the issue of subpoenas or letters of request.

    4. (4)

      Order the plaintiffs to pay the defendants’ costs of and incidental to this motion.

    5. (5)

      Liberty to any party to apply in relation to these orders on 3 days’ notice.

  5. [5]

    At the time of making those orders, I gave short, summary oral reasons. The parties, as is their right, requested these formal reasons.

  6. [6]

    Mr J S Lockhart of Senior Counsel appeared with Mr B Dziubinski for the defendants. Mr E Hyde of Senior Counsel appeared for the plaintiffs.

The ACL proceedings

  1. [7]

    The first plaintiff in the ACL proceedings is Australian Capital Land Pty Ltd (ACL). It is a subsidiary of a Chinese company, Beijing Capital Ltd (BCL). BCL was the holding company of each of the four plaintiffs in the ACL proceedings.

  2. [8]

    The defendants in the ACL proceedings are Mr Wai Ng (to whom, without disrespect, I will refer by his English name of David), his parents Madam Han and Mr Ng Senior, and Ocean Jet Enterprises (a Hong Kong company of which Madam Han and Mr Ng Senior were directors).

  3. [9]

    David was a director of the plaintiffs at the time of the alleged misappropriations. The plaintiffs lent very large sums of money to property development companies in the Dyldam Group, including Gateway Parramatta One Pty Ltd, which is now in liquidation. The Dyldam Group was controlled by Mr Sam Fayad. In general terms, BCL was the source of the funds which the plaintiffs advanced to the Dyldam Group.

  4. [10]

    The plaintiffs allege that David diverted funds intended to be advanced to the Dyldam Group for unrelated purposes to the advantage of himself and his family. David is sued for in excess of $40,000,000 for conduct engaged in between 2014 and 2020, including alleged overpayment of bonuses between March 2016 and July 2019, and transactions entered into in 2015, 2017 and 2019. His parents and Ocean Jet are sued for lesser sums. Two impugned transactions particularly featured in the argument before the Court:

    1. (1)

      $7.5 million alleged to have been diverted to Madam Han in December 2017 (see paragraph 63 of the ACL statement of claim); and

    2. (2)

      $1.44 million alleged to have been diverted in January 2019 to Ocean Jet.

  5. [11]

    As I have already noted, the ACL proceedings include a claim for approximately $1.2 million for funds said to have been overpaid in the guise of bonuses to which David was allegedly not entitled (bonus claim).

  6. [12]

    The defendants have filed their defences, which as to most of the transactions comprise denials and non-admissions. However, in relation to the impugned transactions, the defences plead:

  7. [13]

    The plaintiffs have filed their evidence, but the defendants have not. In accordance with the practice of the Equity Division, discovery has not yet occurred.

The Gateway proceedings

  1. [14]

    The Gateway proceedings are brought by the liquidator of Gateway against David and Madam Han. They also concern the funds which constitute the first of the impugned transactions [see [10] above], which are alleged to be the subject of a loan by Gateway to David and Madam Han.

  2. [15]

    David and Madam Han’s filed defence to that claim includes:

  3. [16]

    The plaintiffs, but not the defendants, have filed their evidence. Again, in accordance with the practice of the Equity Division, discovery has not yet occurred.

The criminal proceedings

  1. [17]

    The facts proven in relation to the criminal proceedings are established by a press release from the Hong Kong ICAC dated 5 November 2024 and unchallenged evidence by the defendants’ Hong Kong solicitor, Mr Siu Chung (Dominic) Wai.

  2. [18]

    The press release states:

  3. [19]

    There was no dispute that the Australian businessman referred to in the press release is Mr Sam Fayad.

  4. [20]

    Mr Wai’s first affidavit included:

  5. [21]

    Mr Wai’s second affidavit (which I permitted to be filed and read at the hearing over the objection of the plaintiffs) included:

The parties’ submissions

  1. [22]

    Mr Lockhart SC’s submissions for the defendants may be summarised as:

    1. (1)

      In practical and forensic terms there was almost complete overlap between the criminal proceedings and these proceedings. The only thing unique to these proceedings was the bonus claim. The overlap was not confined to the impugned transactions, central as they may be to the criminal proceedings. Both sets of proceedings refer to conduct and transactions over a wider period and the transactions that were the subject of the ACL proceedings were part of a pattern that would be relevant to the criminal proceedings.

    2. (2)

      The defendants do not just rely on the overlap itself. To go into evidence in these proceedings would require evidence of matters at the heart of the criminal proceedings. It was obvious that these proceedings could not be defended without the defendants going into evidence. For them to be, in effect, forced to do so in the face of the criminal proceedings would directly impinge upon their rights to silence and their entitlement not to make forensic choices in advance of the prosecution in the criminal proceedings.

    3. (3)

      There were no protective steps practically available for the purposes of these proceedings that would not impinge upon the defendants’ right to silence and privilege against self-incrimination in the criminal proceedings. Recent authorities showed that courts were less inclined to attempt to resolve the conflict between civil and criminal proceedings by the imposition of protective measures. In any event, protective measures such as imposing confidentiality or similar orders could not eliminate the risk of inadvertent disclosure. Similarly, a solution such as hearing these proceedings in camera was not to be pursued because of the cardinal importance of the principle of open justice.

    4. (4)

      There was no utility in hiving off the bonus claim for a separate hearing. This would still expose evidence of the dealings between BCL, ACL and David that would be relevant to the criminal proceedings.

  2. [23]

    Mr Hyde SC’s original contention was that the defendants’ evidence about the criminal proceedings was insufficient even to engage the principles applicable to the stay of civil proceedings. However, he accepted, with respect entirely properly, that submission could not be maintained after the reading of Mr Wai’s second affidavit. He accepted that there was clearly an overlap between the criminal and civil proceedings in relation to the impugned transactions and proposed three alternative outcomes:

    1. (1)

      The Court should defer the determination of the motions. The defendants should be required to put on their evidence and the question of the stay then be revisited when more would be known about when the criminal proceedings would likely be heard. In the meantime, the defendants’ evidence could be ordered to be confidential to the plaintiffs’ legal advisers only.

    2. (2)

      The Court could make case management orders to alleviate the need for the defendants to address the impugned transactions in these proceedings. I understood this to be a submission that the cases would proceed, in the first instance, in relation to everything but the impugned transactions.

    3. (3)

      Even if everything else was stayed, the case in relation to the bonus claim should continue.

  3. [24]

    Mr Hyde SC further submitted, in summary:

    1. (1)

      The right to silence and the privilege against self-incrimination are two different things. In exercising its discretion, the Court should take into account in this case that the defendants had lost their right to silence by the specific defences that had been pleaded in relation to the impugned transactions.

    2. (2)

      Whatever else what might happen, the plaintiffs should not be held up in obtaining evidence in progressing the proceedings to the extent they were able by obtaining evidence from third parties by subpoena or letter of request. (Mr Lockhart SC indicated that his clients did not oppose those steps being allowed to occur.)

    3. (3)

      The Gateway proceedings should also continue even if the ACL proceedings were stayed. The real issue in the Gateway proceedings was the nature of the relevant transaction, being a loan or something else. This was a subject unrelated to the criminal proceedings even if the funds involved were said to be the fruits of one of the impugned transactions.

  4. [25]

    Mr Lockhart SC submitted in reply, in summary:

    1. (1)

      The specific defences filed in relation the impugned transactions did not have the effect contended for by Mr Hyde SC. They had to be viewed in the context of the entirety of the ACL proceedings, which involved much more than just the impugned transactions. The proceedings involved a pattern of conduct over a period of years which, as was apparent from the press release, would necessarily be the subject of examination in the criminal proceedings.

    2. (2)

      There was no real benefit either in proceeding with the rest of the cases (that is to say, excluding the impugned transactions) or, in the first place, requiring all the evidence to be put on but then limiting access to it. There could be no point in restricting the defendants’ evidence to the plaintiffs’ legal advisers, because they would not be able to get instructions in relation to that evidence.

    3. (3)

      The Gateway proceedings still involved the characterisation of transactions that were alleged to arise from the impugned transactions. It was inevitable that, as part of an alleged pattern of conduct, the nature of the transactions alleged in the Gateway proceedings would require evidence from the defendants that would be relevant to the prosecution in the criminal proceedings.

    4. (4)

      The suggestion that the bonus claim could be heard separately was contrary to the principles applicable to separate questions. It was inevitable that David would have to give evidence both in relation to the bonus claim and all the other transactions. This included evidence of the meetings alleged with Mr Liu (see [12] and [15] above, Mr Liu having since died) and the issue of David’s credit would inevitably have to be resolved. Where a key witness - especially a party - would have to give evidence in both proceedings and issues of credit were relevant, the Court would not countenance separate hearings.

Consideration

  1. [26]

    There was no dispute about the applicable principles. While the Court was taken to a number of authorities, it is sufficient for present purposes that I respectfully apply and adopt this summary of the leading High Court authority (Commissioner of The Australian Federal Police v Zhao (2015) 225 CLR 46) by the Full Court of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97:

  2. [27]

    The parties did not suggest that there was any difference in the principles applicable between cases where the civil and criminal proceedings are both in Australia or where, as in this case, there are civil proceedings in Australia and a criminal proceeding overseas. However, in my respectful opinion, in a case such as the present an important factor in the exercise of the Court’s discretion is that the Court’s capacity to fashion alternative procedures is more limited, because the Court has much less (if any) capacity to make or enforce orders against parties or their legal advisers outside of Australia. That is a factor which the Court has taken into account in concluding that none of Mr Hyde SC’s three options should be permitted and that these proceedings should be stayed.

  3. [28]

    The Court accepts Mr Lockhart SC’s submission that the criminal proceedings are not just limited to the impugned transactions. So much is clear from the press release (see [18] above) and paragraph 5 of Mr Wai’s second affidavit (see [21] above). It appears that the criminal proceedings will involve an examination of financial dealings between BCL and its related companies, David, Madam Han and Mr Ng Senior, and Mr Fayad and the Dyldam companies, between 2014 and 2019 (other conduct). The Court is satisfied that this will include, for example, an examination of the critical meetings between David and the late Mr Liu referred to in the defences (set out in [12] and [15] above).

  4. [29]

    Both the ACL proceedings and the Gateway proceedings will consider the impugned transactions and their characterisations, including whether they are loans, repayments or something else, which will necessarily also involve considering some or all of the other conduct. Insofar as that is the case, the Court is well satisfied that it is clearly apparent that there is a real risk of prejudice to David and Madam Han in conducting their defences in the criminal proceedings if, as would inevitability be the case to defend these proceedings, they have to disclose their detailed responses in relation to the impugned transactions in the ACL and Gateway proceedings, and the other transactions that are the subject of the ACL proceedings.

  5. [30]

    The Court rejects the submission that the specific defences in the ACL proceedings and the Gateway proceedings concerning the impugned transactions are so extensive as to support the conclusion that the maintenance of their right to silence has been waived such that it is no longer an issue. Those defences say nothing about the other conduct and, in my respectful view, are relatively confined. It would be a different case if discovery and affidavit evidence had already been put on in relation to the impugned transactions.

  6. [31]

    When weighing the interests of justice, the Court is satisfied that there would be real prejudice to David and Madam Han of the kind which I have identified in [29] above if these proceedings are not stayed. That prejudice, in my respectful view, clearly outweighs the prejudice caused to the plaintiffs by the stay of these proceedings.

  7. [32]

    The prejudice to the plaintiffs is delay, the effects of which are ameliorated by two things. First, there are freezing orders in place over what Mr Lockhart SC described as “substantial assets” of his clients. Second, the plaintiffs’ claims are money claims and, while the Court accepts that avoiding delay is an important principle in the administration of justice, some measure of compensation for the delay can be afforded to the plaintiffs by an award of interest. There is no commensurate measure of compensation available to the plaintiffs for the detriment they would suffer that the Court has identified in relation to their conduct of the criminal proceedings if these proceedings are not stayed.

  8. [33]

    The Court has given careful consideration to the possibility of protective measures. However, I accept Mr Lockhart SC’s submissions that any protective measures are either or both of impractical and insufficient. For example, there is no point in requiring the defendants to file their evidence in these proceedings and limit that evidence, for the time being, to the legal representatives of the plaintiffs. There is in reality nothing more that could then be done once that step had been taken, given that the legal representatives would not be able to obtain instructions, and nor can one eliminate the risk of that material being inadvertently disclosed. In making that observation, the Court does not suggest that it lacks any confidence in the integrity of those acting for the plaintiffs, but the Court’s experience and the reported cases support the conclusion that the best and most carefully conceived confidentiality arrangements can be inadvertently breached.

Conclusion

  1. [34]

    For the foregoing reasons, the Gateway proceedings must be stayed. They involve the first of the impugned transactions and will necessarily give insight into the other conduct.

  2. [35]

    As for the ACL proceedings, it would be contrary to the just, cheap and quick objectives of case management in this Court to permit the bonus claim to proceed in isolation. I accept Mr Lockhart SC’s submission that it would give rise to a separate hearing problem of the kind he identified because David would have to give evidence twice and his credit will be in issue in both cases. Insofar as the ACL proceedings involve not only the impugned transactions (which is sufficient to warrant a stay) but also transactions other than the impugned transactions, they will necessarily intrude into the other conduct which is also part of the criminal proceedings.

  3. [36]

    Finally, I record that Mr Hyde SC accepted that, given the outcome, costs should follow the event. There was, therefore, no dispute that the plaintiffs should pay the defendants’ costs of the motions.

  4. [37]

    For all of these reasons, the Court made the orders set out in [4] above.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.