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Luani v Warner [2025] TOCA 15; AC 26 of 2024 (16 May 2025)

IN THE COURT OF APPEAL OF TONGA
LAND JURISDICTION
NUKU’ALOFA REGISTRY


AC 26 of 2024
[LA 29 of 2015]


BETWEEN
LORD LUANI
Judgment Creditor


AND
DIANNE WARNER
Receiver/Appellant


AND
LORD NUKU
Judgment Debtor


AND
MINISTER OF LANDS
Respondent


Hearing:
9 May 2025


Court:
Randerson, Harrison and Morrison JJ


Counsel:
Sione Fonua for the Appellant
Sione Sisifa SC, Solicitor-General for the Respondent


Judgment:
16 May 2025


JUDGMENT OF THE COURT


Background

[1] This appeal concerns an application by a Receiver for directions to aid in enforcing a judgment debt owed to the Judgment Creditor Lord Luani. The Supreme Court has already issued a charging order over certain assets owned by the Judgment Debtor Lord Nuku. The Receiver sought an order granting a lease to Lord Luani over a tax allotment registered to Lord Nuku and an order for the transfer of two leases to Lord Luani.
[2] Tupou J held in the court below that the application before her was for substantive relief rather than merely directions, and that as the Judgment Debtor had not been joined in the proceedings, relief should be refused.

Brief facts

[3] On 7 September 2017, the Court of Appeal gave judgment in favour of Lord Luani in the sum of $3,380335.00, against Lord Nuku.
[4] On 17 July 2020, the Judgment Creditor secured a charging order over various assets of Lord Nuku. They included the tax allotment in the name of Lord Nuku and two leases, 9436 and 9473, registered in the name of Faka’osifono Finefeuiaki Valevale, and situated at Veitongo.
[5] To enforce the charging orders, Lord Luani applied for the appointment of a Receiver. On 18 February 2021, the appellant was appointed as Receiver.
[6] The Receiver, relying on the prescribed powers of a Receiver under the Receivership Act, applied for a lease over Lord Nuku’s tax allotment, and to transfer the remainder of leases 9436 and 9473 in favour of the Judgment creditor. The Minister of Lands advised that he considered he had no power under the Land Act to grant or transfer without the consent of Lord Nuku.
[7] The Receiver applied for directions pursuant to section 5(2) of the Supreme Court Act 1903, and Order 33 Rule 6 of the Supreme Court Rules.
[8] In effect the Receiver sought substantive relief, in the form of orders to give effect to recovery of the Judgment debt, namely:

Grounds of appeal

[9] The grounds of appeal are that the learned primary judge erred, in that her Honour:

The appellant’s contentions on appeal

[10] The appellant seeks to have substantive questions resolved, including:

The reasons below

[11] The learned primary judge noted that the relief being sought on the hearing before her was for:[5]
[12] Her Honour referred to authority as to the limited powers of a Receiver in relation to selling land,[6] and the need to guard against abuse of the charging order process.[7]
[13] Her Honour then found:[8]

“24. Respectfully, I am not convinced that the request before me is a genuine request for directions as such; rather it is principally an application for Court orders to be issued against the Respondent to grant a lease over the Judgment Debtor’s registered tax allotment and to transfer leases 9436 and 9473 to the Judgment Creditor. To exclude the holders of the relevant lands from this proceeding is unfair.

  1. That being the case, I agree with the position of the Court in Safety at Sea (Australasia) Ltd that a specific application is required for the orders sought herein, in line with the laws currently in force. In order for all relevant issues to be resolved, all of the persons whose interests are likely to be affected should be joined.”

Consideration

[14] There are a number of points that are relevant to the resolution of this appeal.
[15] First, contrary to the appellant’s submission, the order by Whitten LCJ did not direct that the documents be served on the Judgment Debtor. In fact, all that was ordered was that a copy of the directions made that day be served on the Judgment Debtor. Nothing in the directions made the Judgment Debtor a party to the proceedings such that Lord Nuku would be bound by the outcome.
[16] Secondly, nothing was done, in that order or otherwise, to make the lessees of the two leases, 9436 and 9473, party to the proceedings.
[17] As a result, neither the Judgment Debtor (Lord Nuku) nor the lessee of the leases was a party on the hearing before the learned primary judge. There can be no doubt that their interests will be affected if the relief sought by the Receiver is granted. Indeed, under the Receivership Act 2015, s 17(3)(b) would require the Receiver to act with reasonable regard to their interests:

“17 General duties of receivers

(1) A receiver shall exercise his powers in good faith and for a proper purpose.
(2) ...
(3) In addition to subsections (1) and (2), a receiver shall exercise his powers with reasonable regard to the interests of –

(a) ...

(b) persons claiming, through the grantor, interests in the property in receivership; ....”

[18] The learned primary judge was, in our respectful view, correct to find that they were not parties, and that their absence created unfairness should relief be granted.
[19] Secondly, contrary to appeal ground No. 2, nothing in the directions made by Whitten LCJ had the effect of making Lord Luani a party to the proceedings. That ultimately may be of little moment as nothing was said in the written submissions to support this aspect.
[20] Thirdly, the application before the learned primary judge sought substantive relief:[9]

“This application requests the court to exercise its statutory powers to direct the Respondent to grant a lease and transfer leases to give effect to the Judgment delivered by the Court of Appeal on 17 September 2017.”

[21] The submissions below confirmed the relief sought.[10] In those circumstances, it was not an error on the part of the learned primary judge to find that such relief should not be granted in the absence of all interested persons.
[22] Fourthly, the material indicates that the Appellant’s appointment as Receiver expired on 18 February 2024. Whitten LCJ made an order in February 2023 extending the term for one year,[11] and the Appellant’s Notice of Appeal asserts the expiry date as fact.[12]
[23] The application was filed in June 2023 and came before Whitten LCJ on 18 July 2023 for directions to take it to a full hearing. The directions made by Whitten LCJ[13] were designed to have all points elucidated by the time of the hearing, which was set as half a day on 15 September 2023.
[24] Plainly, Whitten LCJ intended that the substantive relief would be argued at that hearing. The parties took the steps directed, the last being on 8 September 2023.[14]
[25] The learned primary judge’s ruling was made on 8 November 2024.
[26] Given the Receiver’s appointment expired prior to the hearing, an issue arose as to the Appellant’s competence to seek the relief before the learned primary judge. It seems it was not addressed. However that maybe, an issue arises now as to the competence of the Receiver to bring the appeal.
[27] The Notice of Appeal addresses the fact that the Receivership ended on 18 February 2024, but says nothing as to competence:[15]

“7. The Appellant’s appointment expired on 18 February 2024. There was ample time to complete the tasks before the expiration date, but there have been delays, which were not the Appellant’s fault.”

[28] The Appellant’s written submissions add nothing on the issue.
[29] The Receiver is no longer the Receiver, her appointment having expired on 18 February 2024. Whether there is some sort of accrued right as Receiver to bring or continue the present proceedings is not a matter explored below. That issue, however, adds a discretionary basis to refuse relief in the appeal: see section 35 (4) (b) of the Receivership Act.
[30] The central reason why the primary judge refused the application was the absence of all interested parties, specifically, the Judgment Debtor, over whose land a lease was sought, and the lessee under leases 9436 and 9473.

Powers of the Receiver

[31] Given the substantive issues raised both below and on appeal, it seems appropriate to make some observations.
[32] The Receivership Act 2015 was passed by Parliament in 2015 and the Royal Assent was given on 25 May 2017. The Act was the subject of an Extraordinary Gazette published on 20 June 2017. The Gazette notified that the Act:

“... is passed at the 2015 Session of the Legislative Assembly and are (sic) issued with this Session Gazette”.[16]

[33] The respondent contends that the Receivership Act is not yet in force. This is because s 1(2) of the Receivership Act provides:

“(2) This Act shall come into force on a day to be appointed by the Minister responsible for Commerce by Notice in the Gazette and different provisions may be brought into force on different dates.”

[34] The official copy of the 2020 edition of the Act on the Government website notes, under “Commencement”:

“Not yet in force in accordance with Section 1(2) of this Act at the time this 2020 Revised Edition was prepared.”

[35] In our view, the respondent’s contention that the Receivership Act is not yet in force is in error.
[36] As the Gazette notified, the Act “... is passed at the 2015 Session of the Legislative Assembly and are (sic) issued with this Session Gazette”.[17] The Gazette was published on 20 June 2017, two years after the Act was passed. The Royal Assent was given to the Act before the Gazette, on 25 May 2017.[18]
[37] That being so, one must ascertain the proper construction of the words in the Gazette. That consideration starts and finishes with the text of the Gazette, and includes:
[38] What, then, could “issued” mean if it is not the Royal Assent nor the passing of the Act. The only thing it can signify is when the Act is to commence as provided for in s 2(1). No other step was needed after the Act was passed and given assent.
[39] We note that the learned primary judge referred to the decision of this Court in Namoa v Moehau,[19] as containing a finding that the Receivership Act was not yet in force. That is a misunderstanding of Namoa. There the order appointing a receiver had included powers granted under the Receivership Act.[20] This Court said:[21]

“[2] ... On behalf of Ms Namoa, Mr Edwards submitted that the receivership order ought not to have been made or that it was too vague in its terms. We were told that the Receivership Act 2015, on which it appears that Langi J relied, at least in part, has not yet been brought into force by notice in the Gazette.”

[3] Ms Kafoa, for Mr Siosaia Moehau (Siosaia) acknowledged that the orders made in the Supreme Court may not have been made (at least in the same terms) if the Judge had been aware that the Receivership Act was not in force.

...

[11] As previously stated, the Receivership Act was not in force at the time the application was made.

...

[21] Plainly, the fact that the Receivership Act had not been brought into force prevented the Judge from making any order pursuant to its terms.”

[40] It is plain that in Namoa this Court did not have to consider whether the Act was actually in force, having been told by both sides, wrongly, that it was not. Namoa does not stand as authority for the proposition that the Receivership Act is not in force.

Receivership Act

The Receivership Act provides for the appointment of a receiver under a deed or agreement: ss 7-8, but as noted below also includes a receiver appointed under the inherent jurisdiction of the Court.

[41] For the purposes of the Act the definition of “receiver” is wide:[22]

“receiver” means a receiver, or a manager or a receiver and manager in respect of any property appointed –

(a) by or under any deed or agreement;
(b) by the court in the exercise of a power conferred on the court or in the exercise of its inherent jurisdiction;

whether or not the person appointed is empowered to sell any of the property in receivership, but does not include –

(c) a mortgagee who, whether personally or through an agent, exercises a power to –

(i) enter into possession of mortgaged property; or

(ii) sell or otherwise alienate mortgaged property; or

(d) an agent of any such mortgagee;
[42] The Act provides in s 13:

“13 Execution of documents

(1) A receiver may execute in the name and on behalf of the grantor all documents necessary or incidental to the exercise of the receiver’s powers.”

[43] Then section 14 relevantly provides for the powers of a receiver:

“14 Powers of receivers

(1) A receiver has the powers and authorities expressly or impliedly conferred by the deed or agreement, or the order of the court, by or under which the appointment was made.

(2) In addition to subsection (1) but subject to any contrary provision in the deed or agreement, or the order of the court, by or under which the appointment was made, a receiver may do any of the following –

(a) demand and recover, by action or otherwise, income of the property in receivership; ...”

[44] Section 17 prescribes the general duties of Receivers:

“17 General duties of receivers

(1) A receiver shall exercise his powers in good faith and for a proper purpose.

(2) A receiver shall exercise his powers in a manner that he believes on reasonable grounds to be in the best interests of the person in whose interests he was appointed.

(3) In addition to subsections (1) and (2), a receiver shall exercise his powers with reasonable regard to the interests of –

(a) the grantor;

(b) persons claiming, through the grantor, interests in the property in receivership;

(c) unsecured creditors of the grantor; and

(d) sureties who may be called upon to fulfill obligations of the grantor.

(4) Subsection (3) does not limit or affect section 18.”

[45] Court supervision of receivers, and the power to make directions, is governed by s 35(1)(a) and (4) of the Act:

“35 Court supervision of receivers

(1) The court may, on the application of a receiver –

...

(4) The powers given by subsections (1) and (2) –

(a) are in addition to any other powers the court may exercise under this Act, any other Act, or in its inherent jurisdiction; and

(b) may be exercised in relation to a matter occurring either before or after the commencement of this Act and whether or not the receiver has ceased to act as receiver when the application is made.”

[46] The Act does not contain a provision to apply to the court except in s 35. That is the power to apply for “directions in relation to any matter arising in connection with the performance of the functions of the receiver”.
[47] In this case, the appointment of the Receiver was by the court, the order stating that that it was pursuant to s 5(2)(c)(c) of the Supreme Court Act and Order 33 of the Supreme Court Rules. The appointment was “by way of equitable execution in respect of property of the Judgment debtor ... for the enforcement of the Judgment debt ...”.[23] The Order then provided that the Receiver shall:

“exercise all the functions, powers and duties conferred by, and in accordance with, sections 14, 17, 18, 20 and 21 of the Act[24] and Order 33 rule 6 of the Rules”.

The Supreme Court Act and Rules

[48] Section 5(2)(a) and (c) of the Supreme Court Act relevantly provides:

“5 Powers

The powers of the Supreme Court referred to in this section include, subject to any other applicable law to the contrary, all powers that the court considers necessary or desirable to enable it to give effect to and enforce the judgments and orders of the court ... and, without derogating from the generality of the foregoing, includes power to –

(a) make charging orders against property, in accordance with the rules of the Supreme Court;

...

(c) make orders to appoint receivers in accordance with the rules of the Supreme Court; ...”

[49] Order 33 rule 6 authorizes a Receiver to apply to the Court for directions:

“A receiver may at any time request the Court for directions by written request stating the matter upon which directions are required.”

[50] Order 34 provides that:

“A charging order shall provide a judgment creditor with security, in whole or in part, over the property and assets of the judgment debtor described in the order.”

General comments as to principles – appointment of receivers

[51] As this Court did in Namoa,[25] we make some general comments about the principles applicable to making an order for the appointment of a receiver and the jurisdiction of the Court to give “directions”.
[52] We adopt the statements in Namoa at paragraphs [5] and [18]-[28] as to the Court’s appointment and control of receivers. In particular, we note that in paragraph [21] of Namoa, the Court directed its comments to the situation which would obtain once the Receivership Act came into force.

General comments as to principles – directions

[53] In Mirabela Nickel Ltd (receivers and managers appointed) (in liq); Ex Parte Madden,[26] Vaughan J examined the principles surrounding a receiver’s application for directions. There the directions were under s 424 of the Corporations Act 2001 (Cth), but the principles are equally applicable to the appointment of a receiver under the Receivership Act.
[54] Section 424 relevantly provided:

“424 Controller may apply to Court

(1) A controller of property of a corporation may apply to the Court for directions in relation to any matter arising in connection with the performance or exercise of any of the controller’s functions and powers as controller.”
[55] As can be seen s 424 is a close analogue of 35(1)(a) of the Receivership Act.
[56] In Mirabela, Vaughan J relied upon the Federal Court decision in Re Sandalwood Properties Ltd; Ex parte Preston[27] and said:[28]

“86. Section 424's power to make directions is intended to facilitate the work of a controller; it should be interpreted liberally.

....

  1. The following principles emerge from Re Sandalwood Properties Ltd; Ex parte Preston as to the nature and scope of available directions under s 424:

(1) The directions that may be provided are a form of personal guidance or advice; they articulate the approach the controller is justified in taking having regard to the known circumstances and relevant legal principles.

(2) The power is to give 'directions' in relation to the matters identified in s 424(1). The relevant matters are described in broad and general terms, especially given the words 'in connection with'. So too the words 'in relation to' are of 'the widest import'. Thus the permissible subject matter of a direction will include the actions of the controller but is not confined to such actions. It will include where:

...the controller has to consider the appropriate action to take in undertaking functions or exercising powers and a third party is claiming that a right, interest or entitlement of the third party must be acknowledged or respected in exercising those functions or powers ...

(3) The circumstance that the controller is a privately appointed receiver and manager is not relevant to the question whether to make directions. That said, receivers should not be unduly nervous and come to court where advice is not needed.

(4) There must be an issue calling for the exercise of legal judgment, ie a legal issue of substance or procedure or an issue of power, propriety or reasonableness. It must be more than a business or commercial decision. However, the fact that a legal question may have significant commercial consequences does not make the giving of directions inappropriate. The court does not give advice as to how the controller should act but rather whether there is legal justification to so act.

(5) Once the jurisdictional requirement is satisfied the court has a discretion whether to provide advice of the kind contemplated by the statutory provision.

(6) The making of directions is not an adjudication. It will not be determinative of parties’ rights. The court is not determining the rights of persons and has no power to provide directions that would have that consequence.

(7) The fact that directions are sought in the context of an adversarial dispute does not mean that it is inappropriate to provide directions. There is a need to consider the nature of any underlying dispute. Nevertheless, the existence of such a dispute, and the circumstance that the subject matter for advice is an issue in adversarial proceedings, may be relevant to whether the court is willing to give directions and in what terms.

(8) A direction is given in the context of the circumstances presented to the court at the time it is made; it will not extend to materially different circumstances that arise in the future. The form in which a direction is expressed should be consistent with it being provided by way of judicial advice.

  1. A direction under s 424 does not bind third parties in relation to substantive issues.[29] That is even the case where the third party is joined as a defendant[30] (remembering, however, that MSI was merely given leave to appear and was never joined as a defendant). The non-binding nature of a direction under s 424 is consistent with the accepted position that the making of the direction is not an adjudication and is not determinative of rights.”
[57] Subject to what follows, we respectfully adopt those principles as applicable to receivers’ applications for directions in the Kingdom of Tonga.
[58] For reasons which we will develop, the statement in paragraph 89(6) of Mirabela is inapplicable in the current case.
[59] We observe that, in practice, directions given after substantive argument are generally accepted by the parties and provide a convenient mechanism to resolve issues of importance arising in a receivership. They also provide comfort to receivers if the directions are followed.
[60] However, the approach in Mirabela should not be understood as reflecting the position when, as here, the appointment of the Receiver was by way of equitable execution, that is, the Court taking steps to ensure its orders are effectual. In our view, that circumstance brings a different set of considerations into account.

General comments as to principles – receivers by way of equitable execution

[61] As set out in paragraphs [4] and [5] above, the Court made a charging order first, and then appointed the Receiver to enforce that ord[31]. The charging order31 provided that Judgment Debtor’s land (Nuku Island) and the leases (9436 and 9473) were charged with the repayment of the Judgment Debtor’s debt.
[62] The order appointing the Receiver[32] noted that the Judgment Debtor did not oppose the making of the order, and relevantly provided that she was:
[63] Where, as here, a receiver is appointed by way of equitable execution over assets, a number of principles are applicable, including:
[64] The general effect of such a receiver is that the order does not usually transfer the specified property to the judgment creditor or indeed the receiver, but it does prevent the judgment debtor from dealing with the property. The receiver’s role is then to collect the specified property. When it has been collected the receiver must make an application to the Court for liberty to pay the judgment creditor the property realised less a deduction of the costs of the receivership.
[65] As a court-appointed receiver, equitable remedies are available to assist in the task assigned by the order. Those remedies are, of course, discretionary, but flexible as the task they serve is to make the court’s orders effectual. Authority supports the conclusion that the wide sweep of a court’s orders are available when the particular case warrants it, with no artificial limits.
[66] The breadth of available remedies was noted by Gaudron J in Jago v District Court of New South Wales:[33]

“5. Subject to any limitation or restriction to be found in statute, a court necessarily has power (whether that power is identified as inherent power or a power necessarily to be implied from relevant statutory provisions) to control its own process and proceedings.

...

  1. The power of a court to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands.”
[67] We pause to observe that in this case, there are no such limitations or restrictions in a statute.
[68] Examples of the breadth of the power are many. For instance, in Maricante v Batiste,[34] the case involved receivers and a plaintiff seeking that the court make directions with respect to the sale of a property. This was said:[35]

“[75] [I]n my opinion the Court’s power to make an interlocutory order for the appointment of a receiver under the Supreme Court Act 1970 (NSW) must carry with it the implied power to give directions with respect to the discharge of the functions for which the appointment is made – at any rate, where (as here) such directions are necessary in a practical sense to enable the receiver to carry out those functions without exposing himself to a real risk of litigation.”

[69] Other examples of the broad powers are:
[70] In Cruz City 1 Mauritius Holdings v Unitech Limited,[39] the UK High Court made orders appointing a receiver where recovery of the debt by other processes of execution was not practicable, at least in any reasonable timescale. The Court confirmed its commitment to promoting the ready enforcement of arbitration awards and its willingness to develop its jurisdiction incrementally if necessary, “unconstrained by rigid expressions of principle and responsive to the demands of justice in the contemporary context”.
[71] In many cases a receiver appointed by way of equitable execution will be appointed because conventional methods of enforcement are inappropriate or thwarted.[40] In such cases the courts are willing to facilitate an appointment accompanied with a wide scope of powers.
[72] It follows, in our view, that once the receiver is appointed, the full suite of orders available to a court to make its orders efficacious are available, depending, of course, on establishing that they are needed to fulfil the object of the appointment, i.e. enforcement of the judgment debt. The powers granted under such orders are not constrained by the Land Act. Rather, they stem from the inherent jurisdiction of the Court to make enforcement of its own orders effective. To elaborate, the Land Act recognises that mortgages may be granted over allotments and leases granted under the Act with the approval of the Minister. Transactions of this kind are agreed between the registered holder of the allotment or lease and third parties. The Act does include enforcement powers in the event of default but there is no provision under the Act for charging orders which are issued by the Court to enforce an order over assets that may or may not include land. The source of authority to issue and enforce charging orders is entirely independent of the Land Act and does not require the consent of anyone including the Minister or the holder of the allotment or lease at issue.
[73] Conclusion
[74] Though the central reason for dismissing the application was that necessary parties had not been joined, her Honour also found that it should be dismissed because the relief sought was substantive.[41] In our view, her Honour fell into error in both respects. The application was by a court-appointed receiver, seeking the Court’s assistance to enforce a judgment debt, secured by a charging order. Those issues had been the subject of directions to bring them on for a hearing, and they are within the scope of what a receiver might seek in the inherent jurisdiction of the Court. The appropriate course would have been to give directions for the missing parties to be joined and steps to bring the matter back on with all parties represented.
[75] Therefore, the appeal must be allowed, with costs.

Result

1. The appeal is allowed.

  1. The matter is remitted to the primary judge for further hearing.
  2. The respondent pay the appellant’s costs of the appeal to be fixed by the Registrar if not agreed.

Randerson J


Harrison J


Morrison J

[1] Submissions, paragraph 6.
[2] Submissions, paragraphs 8-11.
[3] Submissions, paragraphs 12-17 and 28
[4] Submissions, paragraph 16.
[5] Reasons paragraphs 6 and 24.
[6] Safety at Sea (Australasian) Ltd v Tapavalu [1999] TOSC 53, and ANZ v Naufahu [2011] TOSC 2.
[7] Davisco Pineapple Industries Ltd v Vakavelo [2003] Tonga LR 34.
[8] Reasons below paragraphs 24-25.
[9] Memorandum supporting the Application Notice for directions, paragraph 1.
[10] Submissions below, paragraphs 3.1, 20.2 and 20.3.
[11] Appeal book, p 113.
[12] Notice of Appeal, ground 7.
[13] Appeal book, p 145.
[14] Submissions supporting the application notice, appeal book p 167.
[15] Notice of Appeal, ground 7.
[16] Appeal Book, p 63.
[17] Appeal Book, p 63.
[18] Noted on the Act as it appears on the Government website for legislation.
[19] [2024] TOCA 11.
[20] Namoa at [11] and [13].
[21] Namoa at [2]-[3], [9] and [21].
[22] Section 3; emphasis added.
[23] Appeal Book, p 79.
[24] Referring to the Receivership Act.
[25] Namoa at [5] and [18]-[31].
[26] [2018] WASC 335.
[27] [2018] FCA 547.
[28] Mirabela at [86] and [89]-[90]. Footnotes omitted.
[29] Korda v Silkchime Pty Ltd ....
[30] White v Huxtable; Re Lake federation Pty Ltd [2006] FCA 559; (2006) 232 ALR 388 [21].
[31] Appeal book, p 71.
[32] Appeal book, p 78.

[33] (1989) 168 CLR 23; [1989] HCA 46. See also Wendy Lacey, “Inherent Jurisdiction, Judicial Power and Implied Guarantees under Chapter III of the Constitution, [2003] Federal Law Review 31(1).
[34] [2000] NSWSC 288, at [1].
[35] Maricante at [75]. Emphasis added.
[36] Australian Securities and Investments Commission v Letton (No 7) [2010] FCA 1231 at [271].
[37] Grain Technology Australia Ltd v Rosewood Research Pty Ltd (No 2) [2019] NSWSC 1744, at [12]-[13].
[38] Grain Technology Australia Ltd v Rosewood Research Pty Ltd (No 2) [2019] NSWSC 1111, at [17].
[39] [2014] EWHC 3131 (Comm).
[40] Masri v Consolidated Contractors (No 2) [2008] EWCA Civ 303; Cruz City 1 Mauritius Holdings v Unitech Ltd [2014] EWHC 3131; JSC VTB Bank v Pavel Skurikhin & Others [2015] EWHC 2131 (Comm); Merchant International Company Ltd v Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy [2015] EWHC 1930 (Comm); VB Football Assets v Blackpool Football Club (Properties) Limited [2019] EWHC 530 (Ch).
[41] Reasons below paragraph 24.

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