BECL Strategy Holding Ltd v McCartney [2026] QSC 189

SUPREME COURT OF QUEENSLAND CITATION: BECL Strategy Holding Ltd v Derek William McCartney [2026] QSC 189 PARTIES: BECL STRATEGY HOLDING LTD (applicant) v DEREK WILLIAM MCCARTNEY (respondent) FILE NO/S: 841 of 2025 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 20 August 2026 DELIVERED AT: Brisbane HEARING DATE: 15 April 2026 JUDGE: Crowley J ORDER: 1. The application for summary judgment is dismissed. 2. Paragraphs 15(a), (d), (f) and (g) of the defence filed 16 June 2025 are struck out pursuant to r 171 of the UCPR. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – END PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – where the applicant applies for summary judgment of a claim and counterclaim – where the applicant claims certain companies failed to repay money lent under loan agreements for real estate developments in Australia and the respondent is liable as guarantor – where the respondent claims the parties executed sham agreements – where the respondent claims the actual relationship between the applicant and the respondent was one of a joint venture and not lender and borrower as the applicant claims – where the respondent claims that the loan agreements were never intended by the parties to have legal effect – where the court may give summary judgment if satisfied that the respondent has no real prospect of successfully defending all or part of the applicant’s claim and there is no need for a trial of the claim or part of the claim –whether there exists a real as opposed to fanciful prospect of success – where the applicant bears the onus to establish a -- 1 of 31 -- 2 prima facie case for summary judgment – where once a prima facie case is established the respondent bears the onus to point to the existence of evidence to show real prospects of defending the claim at trial– whether the respondent points to existence of evidence that the loan agreements were shams and not intended to be given legal effect PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – EMBARRASSING, TENDENCY TO CAUSE PREJUDICE, SCANDALOUS, UNNECESSARY ETC OR CAUSING DELAY IN PROCEEDINGS – where alternatively the applicant applies for paragraphs of the defence to be struck out – whether respondent’s assertions in the defence are scandalous and unnecessary Uniform Civil Procedure Rules 1999 (Qld) r 164, r 165, r 168, r 171, r 292, r 293 Agar v Hyde (2000) 201 CLR 552, cited Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, cited Eng Mee Yong v Letchumanan [1980] AC 331, cited Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471, cited General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, cited Kenny v Ask Funding [2019] QCA 13, cited Lathwell v Stabil Pty Ltd [2001] WASCA 295, cited LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105, cited Lewis v Condon (2013) 85 NSWLR 99, cited Neumann Contractors Pty Ltd v Transpunt No.5 Pty Ltd [2011] 2 Qd R 114, cited Queensland Pork Pty Ltd v Lott [2003] QCA 271, cited Raftland Pty Ltd v Federal Commissioner of Taxation (2008) 238 CLR 516, cited RB Lease Pty Ltd v Heron [2013] QCA 181, cited Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449, cited Westpac Banking Group v Hughes [2012] 1 Qd R 581, cited COUNSEL: J Hughes for the applicant G D Beacham KC with M C Long for the respondent SOLICITORS: Mallesons for the applicant Thynne and Macartney for the respondent -- 2 of 31 -- [1] The applicant plaintiff, (BECL), is a limited liability company incorporated in the British Virgin Islands. The respondent defendant, Mr McCartney, is the sole director of a group of companies, known collectively as the “Arden Group”. [2] In 2016, Mr McCartney, in his capacity as director, executed several loan agreement documents between BECL and various Arden Group entities. Under the terms of the loan agreements, BECL, as financier, would provide certain facilities to the Arden Group companies for the stated purpose of the Arden Group companies undertaking certain property development projects in Australia. In each case, Mr McCartney also executed the document in his personal capacity as one of several guarantors of his company’s obligations under the terms of the loan agreement. [3] BECL claims it loaned the Arden Group companies just over $150 million pursuant to the loan agreements, but that the companies subsequently defaulted and failed to repay the loans in accordance with the terms of the loan agreements. It has commenced a proceeding by claim against Mr McCartney personally, as guarantor, for recovery of the monies it claims it is owed under the loan agreements. [4] There seems to be no dispute that Mr McCartney signed the various loan agreement documents on behalf of each company and also in his personal capacity as a guarantor. Indeed, Mr McCartney has filed a defence and counterclaim in which admits as much. However, Mr McCartney contends that the loan agreement documents are “shams” and that the parties never intended they would have legal effect according to their terms. He asserts the true agreement between the parties was not contained in the written loan agreements he executed, but rather in a wholly oral joint venture agreement, pursuant to which BECL agreed to partner with the Arden Group to pursue various property and real estate development projects; BECL would provide financial accommodation to the Arden Group companies in furtherance of the joint venture; and the parties would share the project profits once realised in the future. Mr McCartney further claims that, because BECL breached the joint venture agreement, the Arden Group suffered losses for which it should be compensated. Accordingly, he says he is not liable to repay any of the monies sought to be recovered by BECL. -- 3 of 31 -- 4 [5] BECL has not filed a reply or answer to the counterclaim and there has been no disclosure by the parties, despite pleadings closing on 30 June 2025. Notwithstanding, BECL now applies under r 292 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) for summary judgment on its claim and the counterclaim. Alternatively, it applies, under r 171 of the UCPR, to strike out the counterclaim and some paragraphs of the defence. [6] On BECL’s argument, this is a straightforward case. Given that there is no issue that Mr McCartney executed the various loan agreements, it says here is a high degree of certainty about the ultimate outcome of its claim and the defendant’s counterclaim, and summary judgment should therefore be granted. It says there is no substance to Mr McCartney’s allegations that there was a wholly oral joint venture agreement between the parties and that the loans were mere shams. It says such allegations are objectively implausible; and that the defence and counterclaim are simply not viable and provide no impediment to the court granting the relief it seeks, in circumstances where Mr McCartney does not raise any vitiating factor as to why he is not bound by the written agreements he executed, nor does he seek rectification or other relief that would render the loan agreements to be of no legal effect. [7] In short, BECL says Mr McCartney is bound by the agreements he signed; he has no real defence to its claim; and there is no need for a trial. [8] Mr McCartney says the application for summary judgment should be dismissed. He points out that he has filed a defence, in which he has pleaded the details of the alleged joint venture and the sham nature of the loan agreements. He contends his case is supported by his own sworn testimony and is consistent with other evidence and documentation presently available. He points to the prospect of obtaining further evidence to support his case. He says the matter should therefore proceed to trial in the ordinary way, after the parties have had the opportunity to avail themselves of the usual interlocutory steps, including disclosure. [9] During the hearing of this application, Mr McCartney indicated that he would discontinue his counterclaim and delete some of the challenged paragraphs of his defence. Accordingly, the only remaining matters to consider are whether the case satisfies the requirements of r 292 and, if so, whether I should give summary judgment -- 4 of 31 -- 5 for BECL; or if not, whether I should strike out the remaining impugned paragraphs of the defence under r 171. [10] The determination of BECL’s application ultimately requires me to closely consider its claim and Mr McCartney’s defence, and the presently available evidence, so that I may make a proper assessment of the plausibility of Mr McCartney’s contentions and his prospects of success if the matter were to proceed to trial. Legal principles – summary judgment [11] Rule 292 of the UCPR provides: 292 Summary judgment for plaintiff (1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant. (2) If the court is satisfied that— (a) the defendant has no real prospect of successfully defending all or a part of the plaintiff’s claim; and (b) there is no need for a trial of the claim or the part of the claim; the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff’s claim and may make any other order the court considers appropriate. [12] An application of the present kind must be determined according to the terms of r 292. The applicant is not required to satisfy the test set out by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW),1 that the case is “…so clearly untenable that is cannot possibly succeed.” The court must apply the plain meaning of the words of r 292 and not impose a gloss taken from the practice and procedure that applied to summary judgment applications before the introduction of the UCPR.2 [13] The court’s discretion to give summary judgment arises only where the court is first satisfied of each of the matters in r 292(2)(a) and (b). Whilst the discretion is broad, it is well-settled that summary judgment should only be given in the clearest of cases, 1 (1964) 112 CLR 125, 130. 2 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [42]. -- 5 of 31 -- 6 where there is a high degree of certainty about the ultimate outcome of the proceedings if they went to trial.3 A party is ordinarily not to be denied the opportunity to have their case determined at trial in the ordinary way, and after taking advantage of the usual interlocutory processes.4 [14] Rule 292 must be applied in the context of the overriding purpose of the UCPRs to “facilitate the just and expeditious resolution” of the matter in dispute.5 Where the facts are settled and the respective rights of the parties turn upon questions of law, r 292 requires the court to give judgment in advance of trial, even where the point is difficult.6 [15] In Deputy Commissioner of Taxation v Salcedo,7 Atkinson J relevantly stated in respect of an application for summary judgment under r 292 or r 293 (the latter case being where a defendant applies for summary judgment): “…the court must consider whether there exists a real, as opposed to a fanciful, prospect of success. If there is no real prospect that a party will be successful in all or part of a claim, and there is no need for a trial, then ordinarily the other party is entitled to judgment. These rules benefit both parties as neither faces the expense of taking a matter to trial when the result of such a trial is inevitable as there is no real prospect of one of the parties being successful. There are also obvious advantages to the administration of justice if matters that can and ought be dealt with summarily, are so dealt with.” [16] Under r 292, the onus is on a plaintiff to make out a prima facie case for summary judgment. That requires the plaintiff to satisfy the court of the matters in r 292(2)(a) and (b). Where that is done, the evidentiary onus shifts to the defendant. The defendant must then point to the existence of evidence which, if accepted, makes the prospect that they he successfully defend the claim at trial a real one. 8 That does not necessarily require the defendant to show that it has admissible evidence available to 3 Neumann Contractors Pty Ltd v Transpunt No.5 Pty Ltd [2011] 2 Qd R 114, [80]-[81]; Westpac Banking Group v Hughes [2012] 1 Qd R 581, [74]. 4 Agar v Hyde (2000) 201 CLR 552, [57]. 5 LCR Mining Group Pty Ltd v Ocean Tyres Pty Ltd [2011] QCA 105, [30]. 6 Westpac Banking Group v Hughes [74]. 7 [2005] Qd R 232, [47]. 8 Queensland Pork Pty Ltd v Lott [2003] QCA 271, [41]; Kenny v Ask Funding [2019] QCA 13, [65]. -- 6 of 31 -- 7 it to establish its case as at the time of the summary judgment application. It may be sufficient for the defendant to outline the evidence to be obtained and to identify the sources from which it will be obtainable.9 Legal principles – shams [17] “Sham” is an ambiguous term and uncertainty surrounds its meaning and application in various legal contexts. [18] In Sharrment Pty Ltd v Official Trustee in Bankruptcy,10Lockhart J (Foster J agreeing) described the concept of a “sham”: “…… for the purposes of Australian law, something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true, but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive.” [19] Of relevance to the present case and Mr McCartney’s contention that the loan arrangements were shams, in Equuscorp Pty Ltd v Glengallan Investments Pty Ltd,11 the court stated: “…‘Sham’ is an expression which has a well-understood legal meaning. It refers to steps which take the form of a legally effective transaction but which the parties intend should not have the apparent, or any, legal consequences.” [20] After referring to this description of a sham in Equuscorp, the Court in Lewis v Condon,12 stated: “That is to say, it is essential that there be an intention that the true transaction is different from that which would ordinarily be attributed to the transaction on the face of the documents. As Lord Wilberforce put it, “to say that a document or transaction is a ‘sham’ means that 9 RB Lease Pty Ltd v Heron [2013] QCA 181, [23]. 10 (1988) 18 FCR 449, 454. 11 (2004) 218 CLR 471, [46]. 12 (2013) 85 NSWLR 99, [59]-[63]. -- 7 of 31 -- 8 while professing to be one thing, it is in fact something different”: WT Ramsay v Inland Revenue Commissioners [1982] AC 300 at 323. Basic to the legal notion of sham is that it is a confined and exceptional aspect of the process of giving legal meaning to a document, as Professor Conaglen has pointed out (“Sham Trusts” (2008) 67 CLJ 176 at 206): ‘The relevance of the sham doctrine, and the difference between it and normal processes of construction, lies in the fact that it justifies the court in ignoring (as opposed to construing) the usual primary material regarding that transaction, and focusing its attention instead on all other material factors which indicate the arrangement that the parties in fact intended.’ That echoes the words of Windeyer J in Scott v Commissioner of Taxation (Cth) (No 2) (1966) 40 ALJR 265 at 279: ‘The difficult and debatable philosophic questions of the meaning and relationship of reality, substance and form are for the purposes of our law generally resolved by asking did the parties who entered into the ostensible transaction mean it to be in truth their transaction, or did they mean it to be, and in fact use it as, merely a disguise, a facade, a sham, a false front ... concealing their real transaction.’ The sham doctrine is thus one of those relatively rare doctrines in the law where legal meaning is given to a document by reference to a subjective intention. Other examples are a plea of non est factum at law and a claim for rectification in equity. All these doctrines “must necessarily be kept within narrow limits”, for all subtract from the objective theory of contractual obligation, and if unchecked would cause “serious mischief”: see Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [46]-[47]. This has long been the law: see for example Jordan CJ’s reasons in Perpetual Trustee Co (Ltd) v Bligh (1940) 38 SR NSW 33 at 39-40. In all these -- 8 of 31 -- 9 areas, strong evidence is required in order to displace the orthodox approach to construction… Because a finding of sham requires a finding of an intent to deceive, considerations associated with Briginshaw v Briginshaw (1938) 60 CLR 336 require a cautious approach: Raftland Pty Ltd v Commission of Taxation at [36]. Thus there is a “strong and natural presumption against holding a provision or a document a sham”: National Westminster Bank plc v Jones [2001] 1 BCLC 98 at [59] (Neuberger J). “A court will only look behind a transaction’s ostensible validity if there is a good reason to do so, and ‘good reason’ is a high threshold, since a premium is placed on commercial certainty”: Official Assignee v Wilson [2007] NZCA 122; [2008] 3 NZLR 45 at [52] (Robertson and O’Regan JJ). Lockhart J referred to “a strong finding, and one which cannot be made if another inference is at least equally open” in Sharrment Pty Ltd v Official Trustee in Bankruptcy at 461.” [21] In Raftland Pty Ltd v Federal Commissioner of Taxation,13 Kirby J noted that whether a sham is established or not depends on whether the parties intend their respective rights and obligations to derive from what appears to be a legal instrument.14 His Honour then further stated:15 “…Although, therefore, courts will ordinarily give legal effect to documents according to their language, sham analysis is an exception to that conventional approach. That is why it requires exceptional circumstances to enliven a conclusion that documents and acts amount to a sham, with the legal results that such a conclusion justifies. The key to a finding of sham is the demonstration, by evidence or available inference, of a disparity between the transaction evidenced in the 13 (2008) 238 CLR 516, [134]. 14 Ibid, [134]. 15 Ibid, [144]-[147]. Although Kirby J dissented in the result, his Honour’s analysis in this passage is often referenced as embodying the correct approach to be adopted in such cases, including being cited with approval by the Court of Appeal: Oakland Investments Group Limited v Sino-Resource Imp and Exp Co Ltd [2019] QCA 92, [56],[64],[87]; Workcover Queensland v CTG Harvesting Pty Ltd [2026] 124, [65]. -- 9 of 31 -- 10 documentation (and related conduct of the parties) and the reality disclosed elsewhere in the evidence. Where, for example, the evidence shows a discordance between the parties’ legal rights or obligations as described in the documents and the actual intentions which those parties are shown to have had as to their legal rights and obligations, a conclusion of sham will be warranted. The test as to the parties’ intentions is subjective. In essence, the parties must have intended to create rights and obligations different from those described in their documents. Such documents must have been intended to mislead third parties in respect of such rights and obligations. Where a court is considering a suggestion of sham that has a reasonably arguable evidential foundation, the court will not be confined to examining the propounded documentation alone. It may examine (and draw inferences from) other evidence, including the parties’ explanations (if any) as to their dealings, and evidence describing their subsequent conduct.” BECL’s claim [22] BECL has filed a claim seeking order for Mr McCartney to pay it the sum of $694,087,848.56, together with interest and costs. The essence of the allegations pleaded in the accompanying statement of claim are: (a) BECL is a company duly incorporated in the British Virgin Islands and is in the business of, amongst other things, real estate development and investment. (b) Mr McCartney was at all material times the sole director and secretary of various companies (collectively the “Arden Group”). The Arden Group was at all material times in the business of real estate development. (c) For the purposes of its real estate development business, the Arden Group, through various project development structures, acquired land at locations in Queensland and New South Wales and carried out real estate development projects on the lands. -- 10 of 31 -- 11 (d) Between about 1 July 2016 and 26 July 2018, BECL loaned a total of $188m to members of the Arden Group in association with the various development projects, comprised of: (i) $37.5 million in connection with the “Jade Project”; (ii) $17.5 million in connection with the “Panorama Project”; (iii) $50 million in connection with the “Emporia Project”; (iv) $50 million in connection with the “Moda Project”; (v) $16.5 million in connection with “Evoca Project”; (vi) $16.5 million in connection with the “Zantia Project”. (e) Mr McCartney guaranteed repayment of each such loan. (f) As at the date of the filing of its claim, the Arden Group companies that loaned monies were in default. Mr McCartney is, and remains, liable for repayment of the loan amounts. (g) In total the loan amounts that have not been repaid are over $150 million. (h) Together with interest that has accrued, the total of BECL’s claim is $694,087,848.56. [23] At the hearing of this application, I was taken to the various loan agreements and guarantees signed by Mr McCartney. Supporting affidavits affirmed by Mr Huan Le, a director of BECL, confirmed that the loans, together with accrued interest, remain unpaid. Mr McCartney’s defence and counterclaim [24] Mr McCartney relevantly pleads the following matters: (a) BECL was at all material times owned and controlled by, and related to, a company named “Beijing Capital Land Ltd” (BCL). BCL was listed on the Hong Kong Stock Exchange. (b) BECL and BCL were part of the Beijing Capital Group, which through a related entity undertook residential real estate developments for customers in China and Hong Kong. -- 11 of 31 -- 12 (c) BECL and/or BCL, owned and controlled an Australian registered company named “Australian Capital Land Pty Ltd” (ACL). (d) At relevant times, company directors of BECL, who also were directors or officers of BCL, included Mr Ng Wai (also known as David Ng, or Mr Ng), Mr Timothy Ip, and Mr Le Huan (Huan Le). At relevant times Mr Terry Gilsenan and Mr Will Messiter were directors or employees of ACL. Each of these persons was authorised by BECL to make representations on behalf of BECL and to bind it in its dealings with Mr McCartney. (e) In the period 2016 to 2018, BECL itself, and via ACL, wanted to create and own a large-scale real estate development business in Australia; and wanted to do this by way of a joint venture with an existing experienced Australian real estate developer. (f) In 2016, Mr McCartney and ACL negotiated terms for a joint venture with the Arden Group, culminating in a joint venture agreement with BECL. (g) Land was acquired for the various real estate development projects (as per the project names identified by BECL) in pursuit of the joint venture agreement. (h) During the discussions for the joint venture agreement, representatives of BECL made various representations, including: (i) BCL had a mandate given by the Chinese National Party and supported by its other investors to pursue business opportunities and investment returns outside of China, with an express goal of moving as much money as possible outside of China; (ii) BCL wanted to own a property development business in Australia and BECL itself, or via ACL, wanted a foothold to own a large-scale property development business in Australia by way of a joint venture with the Arden Group, as an experienced existing property developer; (iii) BCL would underwrite the success of the joint venture; (iv) BECL required the Arden Group to contribute to the joint venture by utilising its established good relationships with builders, landholders, real estate agents and consultants for development land in Australia; -- 12 of 31 -- 13 (v) BECL had substantial money available from its investors and it would provide capital for use by the joint venture with a view to BECL creating profit for the joint venture and sharing profits in due course; (vi) if the joint venture wanted to borrow funds, BECL could source the money; (vii) BECL and the Arden Group would each be paid from the joint venture according to, and subject to, an accounting of profits being made by the joint venture from time to time, with the time for calculating profits being after the real estate development on each site was realised and after the joint venture’s ongoing need for capital and cash flow was calculated; (viii) payments from the joint venture depended on profits being available, and in the absence of profits neither BECL or the Arden Group would have any entitlement to payment and neither would have any liability to the other in respect of their contribution to the joint venture; (ix) documents would be created by solicitors acting for BECL and given to Mr McCartney for signing on behalf of the Arden Group and himself, solely to record the intended flow of BCL’s investor funds into the joint venture, but always on the basis that BECL initial representations governed the terms of the joint venture agreement. (i) Mr McCartney agreed to the joint venture with BECL on the terms represented and caused the Arden Group to conduct its affairs consistent with the joint venture agreement. The joint venture agreement was an express oral agreement. (j) Mr McCartney agrees he signed various documents titled “Loan Agreement”. (k) BECL failed to provide money to the joint venture as promised. As a result, the joint venture had to borrow money from another lender on less favourable terms. Nevertheless, BECL wanted the joint venture to continue. (l) In response to Mr McCartney’s complaints about BECL failing to fulfil its initial representations, and losses being incurred by the joint venture due to higher than promised holding and transaction costs, BECL agreed it would compensate the Arden Group and that the joint venture would otherwise continue as initially represented. -- 13 of 31 -- 14 (m) To enable that to occur and for the continuation of BCL moving its investors monies from China into Australia, documents would be created by the solicitors acting for BECL and given to Mr McCartney for signing on behalf of the Arden Group and himself to record the intended flow of BCL’s investor funds into the joint venture and to acknowledge the need for “senior funding” from another lender. Mr McCartney agrees that he signed some such further documents. (n) Mr McCartney agreed to the continuation of the joint venture agreement. This was an express oral agreement. (o) In 2021, there was a subsequent change in BECL’s personnel with whom Mr McCartney had been dealing, such that the persons with knowledge of the joint venture agreement and the representations that had been made on behalf of BECL were no longer directors or officers of the company. (p) BECL subsequently breached the joint venture agreement because it failed to provide funding and other support as promised. As a result, the Arden Group suffered about $80m loss as at July 2021. (q) Although from about October 2024, BECL issued notices of demand and subsequently served a statement of claim upon Mr McCartney, alleging loan defaults by the Arden Group companies, the true case was that BECL had admitted it was liable to pay the Arden Group to compensate it for the additional costs incurred by reason of its initial failure to meet the terms of the joint venture agreement; and that it knew that the Arden Group and Mr McCartney had no liability to BECL under the joint venture agreement. It is on that basis that Mr McCartney denies liability. (r) BECL breached its fiduciary duties as a party to the joint venture agreement. As a matter of law, it is not open for it to resile from the joint venture agreement terms, and it cannot take benefit from circumstances that have resulted from its own breach. BECL’s application and submissions [25] The evidence for BECL on this application is contained in several affidavits sworn by Mr Huan Le. Mr Le has produced copies of each of the relevant loan agreements and guarantees, each having been executed by Mr McCartney. He confirms that in -- 14 of 31 -- 15 each case BECL made available to the relevant Arden Group entity the financial accommodation as documented and agreed. He has produces copies of subsequent drawdown requests made by Mr McCartney on behalf of the Arden Group entities and records of funds being subsequently advanced to those companies by BECL. He confirms that each company defaulted under the terms of the loan agreements; that payment of the amounts owing to BECL were demanded; and that to date those amounts remaining outstanding. [26] Each of the written loan agreements are in similar form and content. Each describes the purpose for the loan. As an example, the “Panorama Loan Agreement” for the “Panorama Project” records the following recitals: “(A) The Company intends to carry out the works necessary to complete the Project substantially in accordance with the Approved Project Feasibility. (B) The Financier has agreed to make financial accommodation available to the Company for the Purpose. (C) The Guarantor agrees to guarantee the Guaranteed Obligations.” [27] In each case the loan agreement stipulates the loan/facility amount; the maturity date; and the applicable interest rate. By way of example, the Panorama Loan Agreement states the facility amount is $17,500,000, plus any amounts of interest capitalised in respect of drawings; the maturity date is 36 months after the date of the drawdown; and the interest rate is 20 per cent per annum. Further, in each case, the loan agreement contains clauses by which the company could make a request for a drawdown on the facility, by submitting a proforma drawdown request; and by which the lender agreed that it would use the facility only for the specified project purpose. [28] In each case the loan agreement is executed on behalf of BECL, as “Financier” by Mr Ng. [29] BECL’s position is that it has clearly established an entitlement for summary judgment on its claim. It submits the present case bears many similarities to the case of Equuscorp, where the borrowers there had argued that they were not bound by written loan agreements they had executed because the “operative agreement” was an oral agreement that the effect of written loan agreements would be that they were -- 15 of 31 -- 16 “limited recourse loans”. In dismissing that argument, the Court in Equuscorp said, at [31]-[35]: “Debate in the courts below, about whether the loan agreements were wholly oral, as the respondents alleged, or wholly written, as Equuscorp and Rural Finance contended, proceeded upon the premise that the critical question was whether the primary judge should have acted on his acceptance of oral evidence given on the respondents' behalf of some conversations that were said to have occurred before the written loan agreements were signed. That, in turn, was seen as a question to be decided by reference to whether subsequent events (including those we have mentioned) made it more or less probable that during these conversations some consensus was reached that the loans were "limited recourse". But behind these arguments lies a more fundamental issue which the respondents' contentions did not address, whether in the courts below or on appeal to this Court. It is, and always has been, common ground that each of the respondents executed a written loan agreement on 30 June 1989. The respondents alleged that the "operative agreement" was not contained in that writing. It was said that the relevant agreement was reached earlier and was wholly oral. Yet it was not said that the written agreement should be rectified. It was not said that a defence of non est factum was available. It was not said that the written agreement was executed by mistake, or that its execution was procured by misrepresentation as to its contents or effect. (The misrepresentation alleged was as to what had been said in the conversations, not what the document was or provided.) The respondents each having executed a loan agreement, each is bound by it. Having executed the document, and not having been induced to do so by fraud, mistake, or misrepresentation, the respondents cannot now be heard to say that they are not bound by the agreement recorded in it. The parol evidence rule, the limited operation of the defence of non est factum and the development of the -- 16 of 31 -- 17 equitable remedy of rectification, all proceed from the premise that a party executing a written agreement is bound by it. Yet fundamental to the respondents' case that the operative agreements between the parties were wholly oral, and reached earlier than the execution of the written agreements, was the proposition that the written agreements subsequently executed not only may be ignored, they must be. That is not so. Having executed the agreement, each respondent is bound by it unless able to rely on a defence of non est factum, or able to have it rectified. The respondents attempted neither. There are reasons why the law adopts this position. First, it accords with the “general test of objectivity [that] is of pervasive influence in the law of contract”. The legal rights and obligations of the parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions. Secondly, in the nature of things, oral agreements will sometimes be disputable. Resolving such disputation is commonly difficult, time-consuming, expensive and problematic. Where parties enter into a written agreement, the Court will generally hold them to the obligations which they have assumed by that agreement. At least, it will do so unless relief is afforded by the operation of statute or some other legal or equitable principle applicable to the case. Different questions may arise where the execution of the written agreement is contested; but that is not the case here. In a time of growing international trade with parties in legal systems having the same or even stronger deference to the obligations of written agreements (and frequently communicating in different languages and from the standpoint of different cultures) this is not a time to ignore the rules of the common law upholding obligations undertaken in written agreements. It is a time to maintain those rules. They are not unbending. They allow for exceptions. But the exceptions must be proved according to established categories. The obligations of written agreements between parties cannot simply be ignored or brushed aside.” -- 17 of 31 -- 18 [30] BECL submits that, for similar reasoning, I should decide the case against Mr McCartney at this stage. It points out that here, like in Equuscorp, Mr McCartney does not allege any misrepresentation, in the relevant sense, as to what the loan documents were, or for what they provided; that he does not allege mistake or fraud; and nor does he seek rectification of the loan agreements or any other relief that would render the written agreements to be of no legal effect. In those circumstances, it argues, Mr McCartney is bound by the written loan agreements he executed. [31] BECL further submits the assertion that the true agreement between the parties was not contained in the written loan agreements executed by Mr McCartney, but rather in a wholly oral joint venture agreement, is simply untenable. It points to features of the loan agreements and subsequent conduct of the parties which it says are inconsistent with, or which directly contradict, Mr McCartney’s claims. [32] Whilst BECL accepts that ordinarily in applications of this kind the facts alleged by a defendant are assumed in his favour, it nevertheless submits that I would not uncritically accept the statements made by Mr McCartney in his affidavits that are inherently improbable and which are no more than self-interested assertions that are inconsistent with the contemporaneous objective evidence. In support of that argument BECL refers to certain observations to that effect made in Eng Mee Yong v Letchumanan,16which were cited with approval in Lathwell v Stabil Pty Ltd.17 [33] In terms of the apparently inconsistent objective evidence, BECL points out that the various loan agreements were negotiated at arm’s length, by sophisticated lawyers acting for each of the parties; that Mr McCartney was requested to, and did, provide a certified statement of his assets and liabilities during the negotiation of the first loan agreement (i.e. the Panorama Loan Agreement); that he also provided security for the repayment of the amounts advanced under the loan agreements; that he signed and delivered drawdown notices in accordance with the terms of the loan agreements to obtain funds from BECL; that the monies requested were advanced; and that the corporate borrowers made substantial repayments to BECL under the loan agreements, in the amount of $15 million, being wholly inconsistent with any supposed profit sharing arrangement under an alleged joint venture agreement. 16 [1980] AC 331 at 341. 17 [2001] WASCA 295, [27] (Wheeler J). -- 18 of 31 -- 19 [34] BECL argues that each of these actions by Mr McCartney is fundamentally inconsistent with the position he now takes. It says there would have been no need for the parties to invest time and money to do any of these things if the loan agreements and Mr McCartney’s guarantees were truly intended by the parties to have no legal effect. It further argues that it is telling that Mr McCartney has not identified any rational reason why the parties would enter into loan agreements to disguise a joint venture agreement. [35] It is necessary to further note here that an additional matter BECL relies upon as objective evidence inconsistent with Mr McCartney’s assertions is a document referred to as a “Framework Agreement” between the “Arden Parties” and BECL, as “Financier”, dated 10 February 2022, which is exhibited to the third affidavit sworn by Mr Le. The “Arden Parties” referred to in that document include Mr McCartney and each of the Arden Group entities that was a party to the subject loan agreements. Under the terms of the Framework Agreement: (a) the Arden Parties were to grant certain additional security to BECL in respect of the obligations of the borrowers and to repay amounts owing under each of the loan agreements; (b) if any of the Arden Parties proposed to refinance any amount owing to the “senior financier”, BECL was to be provided with a first right of refusal to fund that refinance (and to otherwise be informed as to the terms of any refinance); (c) upon the above conditions being satisfied, BECL may waive interest which had accrued under the loan agreements in the preceding six-month period (up to an aggregate of $25,000,000); (d) proceeds received from the Emporia, Moda or Panorama Projects were first to be applied to the amounts owing to the senior financier before being applied to amounts outstanding under the relevant loan agreements for those projects. [36] Mr Le also produces minutes of an antecedent meeting between BECL, Mr McCartney and other Arden Group representatives, on or about 29 January 2021, during which the parties apparently discussed an “overall repayment plan and credit enhancement plan”. Amongst other things, the minutes record: -- 19 of 31 -- 20 “Arden Group considers BCL to be a trusted partner and thanks to BCL’s support over the past few years, it hopes to work together to repay the debts of BCL as soon as possible in the future. BCL is grateful to Arden Group for its willingness to work together, and is willing to accept Mr Derek’s proposal to introduce new investors to replace the senior debt of PAG, and to provide BCP [sic. BCL] with a 50% equity and resulting profit share in future projects, and would like to discuss with Arden Group further more on the details in the coming days…meanwhile BCL agreed to waive six months of book interest to further ease Arden Group’s current repayment pressure.” [37] At the hearing of this application, Mr McCartney objected to Mr Le’s third affidavit on the grounds of relevance, arguing that it sought to introduce evidence of an agreement that post-dated the alleged oral joint venture agreement and the subject written loan agreements, and was not a matter referred to in the pleadings. He further argued that as BECL had not filed a reply/answer to his defence and counterclaim, the effect of UCPR r 168(1) was that allegations of fact contained in the last pleadings (the defence and counterclaim) were taken to be the subject of non-admissions, and further the effect of UCPR r 165(2) was that BECL could not give or call evidence in relation to any such non-admitted facts. Accordingly, he argued, BECL was prevented from relying on the contents of Mr Le’s third affidavit or the exhibited Framework Agreement and meeting minutes. [38] I reject those arguments. Mr Le’s affidavit, the Framework Agreement and the meeting minutes are relevant and admissible. I am not presently conducting a trial of the issues joined on the pleadings in this case. I am determining BECL’s interlocutory application for summary judgment of its claim, under UCPR r 292. I do not consider UCPR r 165(2) prevents me from receiving the evidence. The pleadings define the issues for trial. This is not a trial. I further note that whilst the pleadings may be closed, it would be open to the court to extend the time for the filing of a reply/answer under UCPR 164(2), obviating the effect of r 168(1), and in turn r 165(2). [39] Moreover, in the present context I am concerned with whether BECL has established a prima facie case for judgment and, if so, whether Mr McCartney is able to point to -- 20 of 31 -- 21 evidence demonstrating that he has a real prospect of successfully defending BECL’s claim if the matter went to trial. In my opinion, Mr Le’s affidavit, the Framework Agreement and the meeting minutes are relevant as they provide evidence capable of bearing upon my assessment of each of those matters. It seems to me that the evidence that I may have regard to in order to determine this application is not confined simply to that which relates strictly to the issues raised on the pleadings or even that which may be admissible at trial. To proceed otherwise would in my view unduly restrict the exercise of the discretion under UCPR r 292. [40] In addition to claiming Mr McCartney has no real prospect of defending its claim at trial, BECL further contends that a trial is not necessary as the only issue that arises for determination here is a question of law, namely, whether the written loan agreements are binding on Mr McCartney. It submits this is not a case where there are material factual disputes that should be determined only after the parties have had an opportunity to complete interlocutory steps, adduce evidence and test the evidence of witnesses in the usual way. [41] BECL points out that even if I was not satisfied of its principal arguments, the Panaroma Loan Agreement was executed on 1 July 2016, before the alleged oral joint venture agreement was supposedly concluded. It submits that loan could not therefore have been a sham transaction, as Mr McCartney deposes to the supposed oral joint venture agreement not being concluded until later, and so it follows that it would be entitled to judgment in the amount of $129,914,901 in respect of this aspect of its claim. [42] Finally, in the event that summary judgment is not given as sought, BECL presses its alternative strike out application on the basis that the impugned paragraphs of the defence are irrelevant, unnecessary or scandalous. Mr McCartney’s position and response [43] Mr McCartney submits the application for summary judgment should be dismissed as there is a real prospect that he will be successful in defending the claim at trial and a trial of issues is necessary. He emphasises the need for the court to consider his prospects of success at a future trial, and not simply whether the material presently available establishes that he is able to resist the claim at the time of the application is heard. He contends that a trial is necessary, as there is clearly a factual issue with -- 21 of 31 -- 22 respect to the subjective intentions of the parties which ought to be allowed to be investigated, examined and tested through the ordinary trial processes, including disclosure, the ability to subpoena documents and the cross-examination of witnesses. [44] Mr McCartney says there is substance to his assertions with respect to the oral joint venture agreement and the sham nature of the loan agreements as his position is presently supported by his sworn testimony; is consistent with other documentation; and is supported by other evidence. [45] As to his own sworn evidence, Mr McCartney has provided two affidavits. In his first affidavit, sworn 16 March 2026, he deposes to the following relevant matters: (a) He had operated the Arden Group successfully for many years before 2016. The group had its own long-standing finance arrangements with Westpac and other lenders. There was no reason to change those arrangements, but for the joint venture proposal suggested by BECL. (b) BECL approached him with the idea of joining with the Arden Group as a development partner. BECL was part of a very large real estate development group wanting to expand and to be a property developer in Australia. (c) The relationship between BECL (and ACL) and the Arden Group from 2016 onwards was never one of conventional lender-borrower. He had a different agreement with BECL, which had been reached through discussions and negotiations he, or his colleague, Mr Steven Walsh, had with the directors/officers of BECL named in his defence. Those discussions commenced around March 2016 and concluded around December 2016. He, and the Arden Group entities, entered the proposed joint venture on the basis of the representations made by BECL’s directors/officers. He trusted them and, because of that, placed the Arden Group in a vulnerable position. (d) In the course of these discussions Mr McCartney and the Arden Group were given a “sales pitch” He was told that: (i) BECL had a large list of Chinese-based buyers, to whom it could directly market the joint venture’s apartments, and BECL could form contracts with those buyers using its own staff, thereby incurring relatively low advertising and agent’s commission costs; -- 22 of 31 -- 23 (ii) BECL was in the process of getting Foreign Investment Review Board (FIRB) approval so it could own land in Australia for the purposes of the proposed joint venture; (iii) BECL, via ACL, had endless amounts of capital to place from China into Australia; (iv) BECL had a goal of moving as much money as possible out of mainland China into Australia, specifically into Australian real estate, which Mr Ng said was a “safe haven” investment, and BECL wanted Arden Group to be an Australian-based vehicle in Australia. Mr Messiter told him BECL wanted to be a property developer in Australia in its own right, not a lender. (e) Under the joint venture agreement, BECL would provide substantial funding to buy land and to build unit complexes. However, repayment and risk/reward as between Arden Group and BECL was not based on any loan arrangements. Rather, BECL shared the risk of profit recovery, or losses, on a development. (f) He knows the loan documents relied upon by BECL which are pleaded in its Statement of Claim. He understands how loan agreements and guarantees are designed to work. However, his express agreement with BECL was that the documents would be signed and used solely as a way of recording that money would be moved into Australia; that is, for BECL to use documents for its own purposes to enable the flow of money from its own stakeholders. (g) The loan documents were created in the conventional format, however they did not change his true express agreement with BECL. BECL was not a lender to the Arden Group. It was a partner that would share in control of development projects and share in profits or losses. Their relationship was to be governed by the terms of their joint venture agreement, despite any written documents that may have needed to be signed to record the flow of funds out of China. (h) He intends to call the Australian-based persons described in his defence to give evidence at a trial, notably Mr Messiter, Mr Gilsenan, Steven Walsh, George Lakidis, Rhod Gavin and Matt Frederick. He does not wish to disclose the witnesses he has already spoke to or what they may already have told him, but he believes at a trial their testimony will support his defence. -- 23 of 31 -- 24 (i) He no longer has access to bank records and financial accounts for the Arden Group companies going back to 2016, but believes: (i) BECL would hold minutes and notes of meetings and other internal memoranda and documents that reveal the true nature of the agreement; and (ii) BECL’s lawyers, who were involved in drafting the loan agreements, would also likely hold relevant documents; and (iii) BECL’s documents, once disclosed, will show that it did not in fact conduct itself as a normal lender. (j) BECL only resiled from its express agreement and changed its approach in late 2020 or early 2021, following complaints made by Mr McCartney in May 2017, and then from about early to mid-2021, that BECL had failed to meet its promises to source money and make it available to the joint venture. (k) He confirms the facts pleaded in the defence are true and correct and are the best facts and particulars he is currently able to plead. [46] In his subsequent affidavit of 20 March 2026, Mr McCartney deposes to the following further matters of note: (a) He obtained a copy of the 2015 annual report of BCL, which he says contains details confirming the joint venture arrangement between BECL and the Arden Group; (b) From inquiries he had made, he believed that the story told to him by Mr Ng and Mr Gilsenan checked out. He believed BECL did not want to be a financier but wanted instead to put its capital into owning Australian land by the joint venture. This was subsequently confirmed by Mr Ng and Mr Gilsenan directly over a lunch in May 2016. He then decided to go ahead with the deal. He then signed the documents given to him by BECL the following month; (c) Sometime in 2017, he received a copy of the 2016 annual report of BCL, which again confirmed to him the existence of the joint venture. -- 24 of 31 -- 25 [47] As to his position being consistent with other documentation, Mr McCartney points to the annual reports of BCL and the contents of various emails. For present purposes, I note the following in respect of the 2016 BCL Annual Report: (a) At p 12 – the report lists “Project Arden Australia”, with the project name “Jade & Panorama” as part of its property portfolio. The “attributable interest” in that project is listed as “50%”; and (b) At p 33 – the report lists “Project Arden” under its “Land Bank” summary; and (c) At p 136 – within the notes to financial statements, a note with respect to an entry in the “Long-term receivables” records that it “…is the principal and interest of the AUD investment in real estate development project in Australia, of which the principal amounted [sic.] equivalent to RMB2,005,521,000 with interest rate at 20% and will mature from April 2017 to October 2019 respectively.” Mr McCartney emphasises that there is no description, reference or other evidence of this note being in respect of any of the subject loan agreements or projects. [48] Mr McCartney says the contents of the 2016 BCL Annual Report are consistent with his position that there was an oral joint venture agreement between BECL and the Arden Group. In terms of the connection between BCL and BECL, I note Mr McCartney has exhibited to his first affidavit a historical company extract for ACL, which records that its ultimate holding company is BCL. The sole current shareholder in ACL is recorded as BECL. Mr McCartney says this shows that BECL controls ACL and BCL controls BECL, either directly or indirectly. I also note that some of the documents in evidence, for example the Framework Agreement, record the address of BECL as “C/- Beijing Capital Land Ltd” at either Suites 4602-05, One Exchange Square, Central, Hong Kong, or at Suites 2906-08, AIA Central, 1 Connaught Road Central, Hong Kong. The latter address is noted in the 2016 Annual Report as the Hong Kong office address for BCL. [49] For its part, I note that BECL points out that the 2016 Annual Report is not its document; that its provenance is uncertain; that there is no specific listing of any of the subject projects under the report’s section on “Joint Ventures”; and that one should in any event be circumspect about attributing any significance to the select -- 25 of 31 -- 26 text and entries highlighted by Mr McCartney, as they cannot provide any admissible evidence supporting his position. [50] As to the defence and Mr McCartney’s position being supported by other evidence, Mr Steven Walsh has provided an affidavit in which he relevantly deposes: (a) In 2016 he was employed in the Arden Group as a non-executive director. In that capacity he worked closely with Mr McCartney and Mr George Lakadis. (b) During 2016, he had dealings with BECL on behalf of the Arden Group. He recalls several discussions with Mr Ng, whom he believed was a director of BECL, and with Mr Gilsenan, whom he believed was a director of ACL. (c) He recalls they each had big plans for Australia and planned to bring a lot more capital into the country. He recalls that the “sales pitch” communicated during meetings in 2016, by Mr Ng, Mr Gilsenan and Mr Messiter, was that: (i) BECL wanted to buy land and to develop and sell a lot of apartments in Australia; and (ii) It had access to a large amount of money it had committed to move into Australian real estate; and (iii) It wanted to acquire large and expensive development lots as soon as possible; and (iv) It was getting FIRB approval (which he understood was a required step before it could itself own land and be a developer in its own right); and (v) Mr Ng’s ultimate plan was to grow the Australian business to a size where it could be listed in the Australian Business and Hong Kong Exchange. (d) BECL was aggressive in its entry to Australia. (e) At one of the first meetings in early-2016, (at which Mr Messiter and Mr Ip were present) Mr Ng and Mr Gilsenan said: (i) BECL wanted to form a joint venture with Arden Group, whereby Arden Group would buy development lots suggested by BECL and also as identified by Arden; -- 26 of 31 -- 27 (ii) BECL would provide all the necessary funding for the acquisition of these development lots; (iii) Both parties would then apply their resources to complete the unit developments and sell them to realise a profit to be shared between them. (iv) He is aware that BECL has demanded repayment of money from Mr McCartney and the Arden Group as if it was a traditional bank or lender. From his recollection, that is an incorrect description of the relationship as he understood it. The business relationship proposed by BECL was BECL/ACL wanted to itself be a property developer in Australia and, to that end, they formed a joint venture with Arden Group. It was never to be the case that BECL would be able to demand repayment of its money from the Arden Group. That would have undermined the whole concept pushed by Mr Ng and Mr Gilsenan. (v) To the best of his knowledge, the deal was never to be a commercial standard loan and certainly Mr McCartney was never to underwrite BECL’s plan. [51] Mr McCartney also submits that some of the contents of the loan agreements are inconsistent with the notion that they were intended to have legal effect, noting in particular that interest repayments were not included as part of the finance costs for the “Approved Project Feasibility” estimates that appear as schedules to the various loan agreements. Although BECL submitted that this was because a clause within the loan agreement provided for the priority of payments, which commenced with repaying “senior debt”, without further evidence the position is not clear and I do not draw anything one way or the other from the absence of provision for interest repayments in these documents. [52] As to the specific matters raised by BECL, Mr McCartney says it is not possible to discern the true intentions of the parties simply by reference to the loan agreements, nor by considering the care with which they were prepared through negotiations and the involvement of lawyers. Such matters, he argues, are equally consistent with sham agreements, as it would obviously be in the interests of the parties to ensure the documentation of purported loans was as perfect as possible in order to achieve their purpose of deceiving at third party. He makes similar points with respect to the fact -- 27 of 31 -- 28 that security was provided, or that repayments were made, and submits that it would only be with the benefits of disclosure and cross-examination at trial that it would be possible to determine if those features supported the notion that the purported loan transactions were not shams. [53] Mr McCartney says it can be inferred from the fact that the parties entered into the loan agreements, without intending that they would have legal effect according to their terms, and in circumstances where BECL’s representatives had indicated that it wanted to move as much money as possible out of China, that the loan agreements were intended to deceive a third party. Whilst acknowledging that there is no specific evidence of such a purpose at present, he speculates one possible reason might be to do with Chinese government restrictions on the movement of money from China to Australia. [54] Finally, Mr McCartney points out that there has been no direct response to the defence he has filed, noting that BECL has not filed a reply; it has not provided any sworn denial of what he has deposed to in his affidavits; and it has not produced any documents, other than the documents exhibited to Mr Le’s third affidavit, to rebut his position. He says BECL effectively urges me to disbelieve his case, yet it does not make any direct response to it. Consideration [55] I am satisfied BECL has established a prima facie case for summary judgment. There is evidence of the various loan agreements and of the loans made to the Arden Group members. There is evidence of Mr McCartney executing guarantees in respect of those loans. There is evidence of subsequent default by the Arden Group entities and evidence that the amounts owing to BECL under the agreements remain outstanding. [56] However, it seems to me that this matter is not as clear cut as BECL would have it. The situation is not the same as Equuscorp. Although there appears to be cogent evidence of monies being loaned to the Arden Group under the loan agreements executed by Mr McCartney for the companies and personally as a guarantor, there are clearly triable issues raised as to whether the loan agreements were sham arrangements and as to whether there was an oral joint venture agreement of the kind deposed to by Mr McCartney. -- 28 of 31 -- 29 [57] That of course is not the test that I must apply. Rather, I must consider and determine BECL’s application according to the terms of r 292 and the relevant principles I have already outlined. Having done so however, I am satisfied that Mr McCartney is able to point to the existence of evidence which, if accepted, makes the prospect that he will successfully defend the claim at trial a real one. I do not think it can be said that his prospects of success are fanciful or far-fetched. [58] I have no hesitation in accepting BECL’s submission that I am not bound to accept uncritically every statement in an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements, or inherently improbable. Further, I acknowledge that the evidence Mr McCartney relies upon to resist the present application is largely self-serving and thin in substance; and that his contentions are directly at odds with the loan agreements and some of the other documentary evidence produced by BECL. Nevertheless, I do not think his evidence and the defence is so implausible or bound to fail that I can dismiss it out of hand. He has provided sworn evidence which supports the defence he has filed. There is no direct response to refute it. BECL has not produced any statements of account of the kind that would be expected to be periodically issued by a lender to a borrower. The repayment records it has produced are simply in the form of internal spreadsheets, without further context or detail. Mr McCartney has indicated other sources of potential evidence which he believes may exist and which may support his case. His claims are supported to some extent by the evidence of Mr Walsh. There is an obvious connection between BCL and BECL/ACL, which is not entirely clear at present. [59] Ultimately, I am not sufficiently satisfied that the loan agreements provide the full picture so as to give summary judgment. There is clearly a factual dispute as to the subjective intentions of the parties at the time they executed the loan agreements, including the first agreement for the Panorama Project. In my view, that is a matter that should be determined at trial. [60] For those reasons, BECL’s application for summary judgment is refused. [61] The alternative strikeout application can be dealt with in short order. Mr McCartney has already indicated that the counterclaim will be withdrawn, as permitted by UCPR r 305(a) without the court’s leave being required, and that certain paragraphs of the -- 29 of 31 -- 30 defence will be deleted. The remaining paragraphs of the defence that are in dispute are paragraphs 9(e) and 15(a), (d), (f) and (g). [62] Paragraph 9(e) pleads the allegation that during the joint venture discussions, Mr Ng, Mr Gilsenan, and Mr Messiter said that BCL had a mandate given by the Chinese National Party, supported by its other investors, to pursue business opportunities and investment returns outside of China, with the express goal of moving as much money as possible outside of China. The objection to paragraph 9(e) is that it is irrelevant. [63] In my view the assertion in that paragraph is relevant. It is part of the discussions and negotiations said to have led to the joint venture agreement and forms part of the alleged representations made by the directors/officers of BECL/ACL about BECL and its capacity and willingness to enter into a joint venture with the Arden Group. [64] Paragraphs 15(a), (d), (f) and (g) respectively contain assertions that, sometime before 2020, a company named “Dyldam”, which appears to have been another Australian company that had business dealings with BECL/BCL, went into liquidation in insolvency, with allegations that $100 million to $200 million had been misappropriated; that Mr Li was expelled from the Beijing Capital Group (of which BCL was apparently a subsidiary) on allegations of bribery and corruption; that Mr Ng was subject to charges of bribery by ICAC in Hong Kong, leading to his removal from BECL; and that other officers or members of BECL, ACL or BCL were subject to charges of bribery in China, resulting in their removal from BECL. The objection to these paragraphs is that they are scandalous and unnecessary, particularly where no allegation of bribery, misappropriation or corruption forms any part of the defence. [65] I agree that the pleading of those matters in those subparagraphs is unnecessary or irrelevant and they will be struck out. The details of the alleged reasons for Dyldam’s liquidation, and the removal or various personnel of BCL, BECL or ACL has no relevance to the issues raised on the pleadings. As BECL submitted, the relevant facts for the purposes of Mr McCartney’s case are pleaded in paragraph 16, namely that persons who were involved with, and had knowledge of, the alleged negotiations for the joint venture and the making of various representations, have either left or been removed from their posts. That is all that is required for Mr McCartney to make out his case that the apparent change in BECL’s position concerning the loan agreements -- 30 of 31 -- 31 was due to a change of personnel at BECL and therefore an absence of knowledge on its part about the true terms of the joint venture agreement. Orders [66] The orders I make are: 1. The application for summary judgment is dismissed. 2. Paragraphs 15(a), (d), (f) and (g) of the defence filed 16 June 2025 are struck out pursuant to r 171 of the UCPR. [67] I will hear the parties further as to costs ad any further directions that are required to progress the proceeding. -- 31 of 31 --