Australia, Aug. 16 -- New South Wales Land and Environment Court issued text of the following judgement on July 15:

1. The plaintiff, Sorak Thai Pty Ltd (the Company) seeks various relief against the first defendant, Ms Ratcharin Sopharak (Ms Sopharak) and the second defendant, Sorak & Co Pty Ltd (Sorak & Co) in relation to the sale by the Company to Sorak & Co of the restaurant business operated by the Company under the name 'Benjamas Thai by Chin' (Business) from leased premises located at 100 Darby Street, Newcastle, New South Wales (Premises).

2. The sale of the Business occurred pursuant to a contract dated 6 July 2022 by which the Company agreed to sell the Business to Sorak & Co for $2, apportioned as to $1 for goodwill and $1 for equipment (Sale Contract). Ms Sopharak, who was the sole director of both the Company and Sorak & Co on that date, signed the Sale Contract on behalf of both of them. The completion date was stated to be the date of the contract. As part of the transfer of the Business, the lease of the Premises was also transferred to Sorak & Co.

3. The plaintiff contends that the transfer of the Business by Ms Sopharak was in breach of the fiduciary, equitable and statutory duties she owed to the Company, and that further, Sorak & Co is liable as being involved in those breaches or as the recipient of property in breach of her fiduciary duties.

4. The plaintiff was represented at the hearing by A Rizk of counsel and the first defendant was self-represented.

Evidence

5. The evidence for the plaintiff comprised two affidavits affirmed by its sole director Xuming Du (Mr Du), two affidavits affirmed by Siwei Wang, the Company's taxation accountant since March 2023, and one affidavit affirmed by Sheng Yang Ho the Company's solicitor. None of the plaintiff's witnesses were cross-examined. The principal witness for the plaintiff is Mr Du who is a businessman with interests in a number of hospitality related businesses in regional New South Wales. He graduated with a Master of International Business from the University of Newcastle in 2007.

6. The evidence for the defendants comprised two affidavits affirmed by Ms Sopharak, and she was cross-examined. Ms Sopharak migrated to Australia from Thailand when she was 16 years of age. She completed a bachelor's degree in Architecture and Design at the University of Newcastle in 2015. In 2017, after working for a year as an intern in an architecture practice in Sydney, she met Mr Du and began working for him in the Business which was then operating at the Premises under the name 'Benjamas Thai'.

Background

7. On 25 May 2011, Mr Du and a business associate, Mr Xiaohui Yuan incorporated Darbythai Pty Ltd (Darbythai), for the purpose of purchasing the Business, which was already operating from the Premises. The purchase price for the Business was $200,000. The funds for the purchase were provided by loans of $140,000 by Mr Du and $60,000 by Mr Yuan, reflecting their proportionate shareholdings in the company.

8. On or about 4 March 2014, Mr Du bought out Mr Yuan's interest in Darbythai (which by this point had increased to a 50% shareholding) for the sum of $175,000 and Mr Du became the sole shareholder and director of the Company.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1980b3d680d1be1036f977cc)

Disclaimer: Curated by HT Syndication.