David Smallbone

Expertise

EXPERIENCE

In his 32 years of practise as a barrister, Mr Smallbone has appeared in commercial disputes in superior trial and appellate State and Federal Courts in Australia. In the Pacific, he has appeared in cross-border disputes in the High Court of Fiji, Solomon Islands Court of Appeal, and the High Court of the Solomon Islands.

Mr Smallbone is a senior barrister and international disputes lawyer who is sought after to appear in complex and difficult cases. His unique skill-set has seen him appear in a wide variety of matters, which includes his success in obtaining the first and second Australian judgments on defended applications to enforce mainland Chinese judgment debts in cross-border actions at common law.

Mr Smallbone understands that disputes cross boundaries from both a cultural and legal perspective. He has extensive experience in working with interpreters and with clients and witnesses who do not speak English or are from a different commercial culture.

Mr Smallbone’s cross-border practice extends to commercial, property, investment, trade, finance, infrastructure, corporate management, shareholder and insolvency disputes. It has involved a considerable variety of laws, including mainland Chinese, Hong Kong, Japanese, Korean, Russian, United States, Solomon Islands and Fijian law.

PRACTICE AREAS

  • Contractual and Commercial Disputes
  • Trade Practices
  • Corporations Law and Partnerships
  • Insolvency
  • Equity, Trusts and Estates
  • Private International Law and Foreign Judgments
  • Arbitration and Mediation (Domestic and International)
  • Real Property, Sale of Land and Lease Disputes
  • Finance, Investment and Trade
  • Infrastructure, Building and Construction

CLIENT BASE

As a barrister and international disputes lawyer, Mr Smallbone acts for a broad range of clients, spanning small to medium enterprises, multi-national corporations, as well as individuals, including professionals such as solicitors and accountants.  

He has extensive experience assisting clients who do not speak English to work effectively in an unfamiliar legal system, and has particular experience working with Chinese and Indian clients.

Selection of Recent Cases

  • Yin v Wu [2023] VSCA 130 – Acted for the respondent in what may be the first appellate decision in Australia on enforcement of a Chinese judgment. In this matter the Victorian Court of Appeal reviewed the defence of denial of natural justice in common law debt actions upon foreign judgments.
  • Lead counsel in current actions in the Supreme Court of NSW to enforce Hong Kong judgments in Australia and to avoid dispositions by debtors to family members in fraud of creditors.
  • Sole counsel in current multi-party actions by investor against promoters of two property developments in NSW. 
  • In the matter of Caernarvon Canabolas Pty Ltd (In Liq.) [2022] NSWSC 382 – A successful appeal by a shareholder against a liquidator’s determination to admit a disputed debt.
  • Karadag v Samkara Holdings Pty Ltd [2022] NSWSC 380 – Proceedings stayed under the Commercial Arbitration Act and inherent power and the matter was referred to arbitration.
  • Lee v Lee [2022] NSWSC 181 – Client validly terminated contract for sale of land for breach of essential term, though not ready and willing to perform.
  • Wu v Yin – Obtained summary judgment in the Victorian Supreme Court for a Chinese creditor in this cross border common law debt action on a Chinese judgment from the Ningbo People’s Court. Subsequently successfully defended an appeal against this judgment in Wu v Yin [2022] VSC 729.
  • Suzhou Haishun Investment Management Co Ltd v Zhao [2019] VSC 110 – Obtained summary judgment in the Victorian Supreme Court for a Chinese corporation in this cross-border common law debt action on a Chinese judgment from the Suzhou People’s Court. This was the first time in a defended application that an Australian Court has enforced a Chinese judgment. Appeared in related applications to obtain freezing orders.
  • CEG Direct Securities Pty Ltd v. Wang & Ors [2021] NSWCA 76 – Appeared for respondent mortgagors to maintain dismissal of mortgagee’s action for possession based on registered mortgages executed under forged powers of attorney.
  • Hillsea Pty Ltd v Joseph; McIvor v Joseph [2020] NSWCA 55; In the matter of Hillsea Pty Limited [2019] NSWSC 1152; [2019] NSWSC 1309 – Wound up a family company on the just and equitable ground.  Obtained relief under s.1322 of the Corporations Act 2001 (Cth) protecting sole director against irregularities.  Orders upheld on appeal.
  • Stojic v Stojic [2018] NSWCA 28 – see also Stojic v. Stojic [2018] NSWSC 723; Stojic v. Stojic [2018] NSWSC 1268; In the matter of Statewide Office Furniture Pty Ltd [2018] NSWSC 1393; Stojic v Stojic [2019] NSWSC 23 – This complex matter required expertise across several disciplines and Courts, including probate, corporate insolvency, matrimonial, equity, contempt and restitution.
  • Broadway Plaza Investments v Broadway Plaza Pty Ltd; In the matter of Combined Projects (Arncliffe) Pty Ltd [2020] NSWSC 1778 – Appeared as lead counsel with two juniors in this six-week, high value, multi-party trial before the Chief Judge in Equity.  The disputes concerning agency, bribery, unauthorised payments exceeding AUD $100 million under forged mandates given to the Commonwealth Bank of Australia, restitutionary claims and director’s liability claims.
  • Torok v Becker [2020] NSWSC 1570 – A son was held accountable to his mother’s estate for very extensive debits to her bank account as agent or fiduciary (manager) which he failed to explain, and on the claims of presumed or actual undue influence and unconscionable conduct.  The Court passed over him for appointment as executor and held the legacy left to him in his mother’s will was adeemed by his unrepaid receipts.
  • Appeared as lead counsel in the Supreme Court of NSW for a Chinese franchisor to obtain an injunction restraining ex-franchisee and associated parties from publishing injurious falsehoods worldwide against franchisor trading in mainland China, Taiwan, Hong Kong, Australia and USA.
  • James v Wilson [2019] NSWSC 17 – Appeared for a candidate in a dispute concerning pre-selection for a political party in the NSW State election.