Supreme Court New South Wales Medium Neutral Citation: Li v Tang [2021] NSWSC 1011 Hearing dates: 15 – 17, 23 June 2021 Date of orders: 12 August 2021 Decision date: 12 August 2021 Jurisdiction: Common Law Before: Schmidt AJ Decision: 1. Judgment entered for Mr Li 2. Final orders reserved. Catchwords: CONTRACTS – Formation – Oral agreement – Commercial purpose – Parties and terms CONTRACTS – Express term of written agreement – Guarantee by director who is not a party to contract – Whether director who executes agreement for company is personally bound by guarantee CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW) – Business contracts – Whether agreements unfair – Whether interest rate involves a penalty CONTRACTS – Whether contract which cannot deliver bargain is enforceable – How interest is to be calculated CONTRACTS – Charge – Whether charge is valid – Whether charge is enforceable CONTRACTS – Termination – Repudiation of contract – Whether contract repudiated – Whether acceptance of repudiation affects a party's rights – Whether charge survived termination Legislation Cited: Australian Consumer Law (Cth) ss 20, 21 Australian Securities and Investments Commission Act 2001 (Cth) ss 12CA, 12CB Competition and Consumer Act 2010 (Cth) s 131A Contracts Review Act 1980 (NSW) ss 4, 6(2), 7, 9 Conveyancing Act 1919 (NSW) s 12 Corporations Act 2001 (Cth) s 1071B, 1072F Civil Procedure Act 2005 (NSW) s 56 Evidence Act 2005 (NSW) s 128 Uniform Civil procedure Rules 2005 (NSW) Cases Cited: Australian Bank Limited v Stokes (1985) 3 NSWLR 174 Awadallah v Hymix Australia Pty Ltd (2015) 17 BPR 33,953; [2015] NSWSC 117 Baltic Shipping v Dillon (1991) 22 NSWLR 1 Beil & Anor v Pacific View (Qld) Pty Ltd & Ors [2006] 2 Qd R 499; (2006) QSC 19 Big Kahuna Holdings Pty ltd v Kitas [2012] NSWSC 61 CIT Credit Pty Ltd v Keable [2006] NSWCA 130 Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 [1990] HCA 17 Danthanarayana v GR8 Constructions Pty Ltd (2012) 201 FCR 347; [2012] FCA 23 Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1914] UKHL 1; [1915] AC 79 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Equuscorp Pty Ltd v Glengallan Investments (2004) 218 CLR 471; [2004] HCA 55 Ford bht Watkinson v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42; [2009] NSWCA 186 Galadriel Lothlorien Pty Ltd v Station 1 Pty Ltd [2008] NSWSC 9 Guardian Mortgages v Miller [2004] NSWSC 1236 Imperial Chemical Industries plc v EchoTasmanis Pty Ltd [2007] FCA 1731 King Investment Solutions v Hussain 64 NSWLR 441; [2005] NSWSC 1076 Kowalczuk, v Accom Finance Pty Ltd (2008) 77 NSWLR 205; [2008] NSWCA 343 Lawrence v Ciantar [2020] NSWCA 89 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 McCosker v Lovett (1995) 7 BPR 14,507; (1995) 12 BCL 146 Morris Finance Ltd v Free [2017] NSWSC 1417 Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28 Perpetual Trustee Co Ltd v Khoshoba [2006] NSWCA 41 Provident Capital Ltd v Naumovski [2013] NSWSC 40 Provident Capital Ltd v Papa [2013] NSWCA 36 RAMS Mortgage Corporation Ltd v Skipworth (2007) 239 ALR 799; [2007] WASC 24 RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656; [2005] HCA 71 Scottish Amicable Life Assurance Society v Reg Provident Insurances Pty Ltd (1985) 9 ACLR 909 Singh v De Castro; Dhaliwal v De Castro; Brar v De Castro [2017] NSWCA 241 Toll (FGCT) Pty Ltd v Alpha Pharm Pty Ltd 79 ALJR 129 [2004] HCA 52 Toscano v Holland Securities Pty Limited (1985) 1 NSWLR 145 Wenham & Anor b Ella (1972) 127 CLR 454; [1972] HCA 43 West v AGC (Advances) Limited (1986) 5 NSLWR 610 Wilton v Farnworth (1948) 76 CLR 64 Category: Principal judgment Parties: Weijian Li (Plaintiff) Frank Tang (First Defendant) Yanjuan Guan (Second Defendant) National Australia Bank Ltd (Third Defendant) Representation: Counsel: Mr A Macauley (Plaintiff) Ms J Mee (First & Second Defendants) Solicitors: JC Legal (Plaintiff) Jurisbridge Legal (First and Second Defendants) National Australia Bank (Third Defendant) File Number(s): 2020/73666 Judgment 1. Mr Li seeks judgment for $1million and interest which he claims Mr Tang owes him under agreements which they entered in relation to an investment he originally made in Mr Tang's company Quickly Buys (NSW) Pty Ltd in 2016, on the basis that it would not attract the payment of any interest. Mr Li also seeks a declaration that what he is owed is secured by a charge Mr Tang granted in 2019 over his aliquot share of a property situated at Oatlands, the home which he owns jointly with his wife, Ms Guan. 2. Mr Li also seeks judgment for possession of the property, leave to issue a writ of possession, as well as an order that the property be sold under the Court's jurisdiction, with the proceeds to be distributed in a specified order. 3. The National Australia Bank has a registered mortgage over the property and has entered a submitting appearance. Mr Tang and Ms Guan resist the orders sought. Conclusion 1. The case which Mr Tang pleaded altered significantly when his case was opened and both his evidence and that of Mr Li departed in some respects from their pleadings. 2. As a result, Mr Li was not cross examined on aspects of his evidence and he did not call evidence from his mother, to support his case that Mr Tang had not repaid him $200,000, as he had pleaded. 3. By his concessions Mr Tang not only accepted that he had not made such a payment, he also accepted that it was not a part of the oral business agreement which he claimed he had entered with Mr Li and his father in 2016, that $400,000 of the investment "was not ever intended to be repayable because it was intended to be used for the plaintiff's employment and employment related expenses". 4. The result of Mr Tang's concessions was that what had been agreed to be in issue between he and Mr Li before the hearing commenced altered considerably, although Ms Guan's position remained the same. She was not required for cross-examination. Her evidence that she was unaware of Mr Tang's dealings with Mr Li and the charge he had granted over the property was not challenged. 5. The resolution of what remained in issue between Mr Li and Mr Tang turned on the credibility and reliability of their evidence, as well as on the construction of written agreements which they had signed. 6. For reasons which follow I have concluded that a great deal of Mr Tang's evidence could not be accepted, being neither reliable nor credible and on critical matters, could not be accepted without corroboration. I have also concluded that in the case of conflict, Mr Tang's evidence could not be preferred over that given by Mr Li. Further, that Mr Li's evidence, that from the outset Mr Tang guaranteed repayment of the entire investment in his company Quickly Buys (NSW) Pty Ltd after it was taken over by a Chinese investor, which was imminent, must be accepted. 7. Even so, I am not satisfied that all of the orders which Mr Li sought can be made. 8. In short that is because while under their agreements Mr Tang undoubtedly finally promised again in 2019 to repay Mr Li's investment, as well as interest and gave a charge over the property, orders for possession and judicial sale of the property cannot be made. That is because in the circumstances in which the 2019 agreement under which the charge was given was made, it could not deliver the parties' bargain and was thus not enforceable. The pleaded case 1. Mr Li's pleaded case rested on various agreements: 1. an oral agreement for the purchase of 60 preference shares in Quickly Buys (NSW) for $600,000, which were issued on 4 May 2016 to Weiwei JL Investments Pty Ltd, of which Mr Li was sole director and shareholder; 2. a 4 May 2016 written loan agreement for $400,000 between Mr Li and Quickly Buys (NSW) for a term of two years, without payment of interest, the repayment of which Mr Tang guaranteed, although he was not a named party to the agreement; 3. a $400,000 February 2018 written loan agreement which Mr Li and Quickly Buys (NSW) entered, by which Mr Tang again provided a guarantee and also executed as guarantor, with the loan repayable on 31 May 2018, or thereafter in agreed tranches, with interest then payable at a rate of 2% per month; 4. a written February 2018 share purchase agreement which Weiwei entered with Mr Tang for the purchase of its preference shares in Quickly Buys (NSW) for $600,000, which was also payable on or before 31 May 2018, or again thereafter in agreed tranches, with interest also payable at a rate of 2% per month; 5. a written May 2019 loan agreement between Mr Li and Mr Tang in respect of a loan of $1million which Mr Tang acknowledged he had received in June 2016, which amongst other things: 1. provided a term of 30 years; 2. reduced the rate of interest to 1% per month, with a default interest rate of 2%; and 3. gave a charge over the property. 1. a written January 2020 deed of assignment by which Weiwei assigned to Mr Li the debt Mr Tang owed it under the February 2018 share purchase agreement. 1. The 2019 agreement, to which Weiwei was not a party, did not purport to rescind or vary the earlier agreements. It was finally common ground that what was there agreed by Mr Li and Mr Tang could not alter the fact that it was Weiwei, not Mr Li, who had owned the Quickly Buys (NSW) preference shares that it had already sold to Mr Tang under the 2018 share sale agreement, for $600,000. 2. Mr Li still relied on the 2019 agreement, particularly the charge Mr Tang had thereby given over the property, to advance his case. He thus pressed for interest to be calculated on the lower rates there agreed, submitting that if the 2019 agreement was not valid, interest would have to be calculated at the higher rates specified in the 2018 agreement. 3. Mr Tang's amended defence pleaded that he was not bound by any of the agreements he had signed in 2016, 2018 or 2019. He claimed that earlier in 2016 he had entered an oral "business agreement" with Mr Li and his father, to which no reference was made in any of the later written agreements, but which did not vary, rescind or replace that agreement and by which they remained bound. Under the business agreement $1million had been advanced to Quickly Buys (NSW) before the 2016 written loan agreement was signed, the oral agreement providing that: 1. Quickly Buys (NSW) would employ Mr Li on specified terms and assist him in obtaining residency in Australia, by way of employer sponsorship; 2. Mr Li's father would provide $400,000 to be used to pay Mr Li's salary and compensate Quickly Buys (NSW) for the expense of employing him and sponsoring him; 3. any part of the $400,000 which was not spent on Mr Li's employment and employment related expenses, would be reimbursed after he had obtained permanent residency; and 4. either Mr Li's father personally, or an entity which he nominated, would invest in Quickly Buys (NSW), by paying $600,000 for newly issued shares which would amount to a 20% shareholding. 1. Mr Tang also pleaded that before he entered the 2018 agreements, Quickly Buys (NSW) had in total repaid $240,000 under the 2016 business agreement. Such payments were not dealt with in either the written 2018 or 2019 agreements. While Mr Tang's claim that $200,000 had been repaid was withdrawn at the hearing, the purpose of the payment of the remaining $40,000 remained in dispute. 2. Mr Tang denied owing Mr Li any money, although it was finally not in issue that he had already paid him another $51,600 after the 2018 agreements were entered. 3. Mr Tang's case in relation to the 2016 written loan agreement was that: 1. it was already part performed when in May, Mr Li presented the 2016 loan agreement for him to sign; 2. earlier Mr Li had commenced learning the Quickly Buys (NSW) business and his father had then made a $200,000 part payment for the issue of the agreed new shares and later paid the balance; 3. he did not have a good understanding of written English, as Mr Li knew; 4. he did not obtain any legal advice about any of the agreements he signed; 5. by signing the 2016 loan agreement on behalf of Quickly Buys (NSW) he did not become a party or intend to vary the 2016 business agreement, or to create legal relations on different terms, as Mr Li knew; 6. in the result the written 2016 loan agreement did not take effect as a contract; 7. in the alternative, there was no consideration for the 2016 loan agreement, which thus did not take effect as a contract; and 8. in the further alternative, he was not a party to the 2016 loan agreement and it thus did not take effect as a guarantee or indemnity, which bound him. 1. Mr Tang also claimed that he was not bound by the 2018 agreements, even though he had signed both on his own behalf. He pleaded that: 1. Mr Li knew at that time that Quickly Buys (NSW) was not trading and its shares had zero value; 2. he had previously discussed with Mr Li's father personally repaying $600,000, but had not entered any legally binding obligation to do so; 3. he had also previously offered to transfer to Mr Li or an entity he nominated, for no consideration, 200 of the 1,000 issued shares he held in Australia Quickly Buys Pty Ltd, but Mr Li had refused his offer; 4. he had been embarrassed and pressured into signing the 2018 agreements; 5. Mr Li and his father were close to his employer in China, which caused him further pressure and resulted in him signing the agreements; 6. the rates of interest provided were extravagant and not a pre-estimate of any likely loss, but imposed a penalty; 7. the agreements were unjust and should be declared void or not enforced; and 8. in the alternative, they were unconscionable. 1. Mr Tang also claimed, for similar reasons, that he was also not bound by the 2019 agreement, which was also unjust, void and unconscionable and could not be enforced. 2. As I will explain, the parties' cases altered in various ways at the hearing. 3. In her defence Ms Guan claimed that she had no knowledge or involvement in Mr Tang's dealings with Mr Li; that she had never granted any charge over her interest in the property; that Mr Tang had no authority to grant any charge over that interest and had not purported to do so; and that because Mr Li had no registered mortgage over the property, he had no enforceable right to sell or take possession of the property. Issues 1. What was not in issue was identified before the hearing to be that: "1. On 21 April 2016, Quickly Buys (NSW) Pty Ltd received the sum of $200,000, with a receipt executed by Mr Tang on its behalf recording that the monies had been received from Weiwei JL Investments Pty Ltd. 2. On 3 May 2016, Quickly Buys (NSW) Pty Ltd issued to Weiwei JL Investments Pty Ltd 60 preference shares in exchange for $600,000. 3. On 4 May 2016, Quickly Buys (NSW) Pty Ltd received the sum of $800,000, with receipts executed by Mr Tang on its behalf recording that the monies had been received from Weiwei JL Investments Pty Ltd. 4. On 4 May 2016, Mr Li and Mr Tang signed a document entitled "Loan Agreement" and dated 4 May 2016 (the May 2016 Loan Agreement). 5. On 11 September 2017, Quickly Buys (NSW) Pty Ltd paid to Mr Li's bank account the sum of $40,000 via two payments of $20,000. 6. On 19 February 2018, Mr Li and Mr Tang signed the document entitled "Loan Agreement" and dated 19 February 2018, (the February 2018 Loan Agreement). 7. On 19 February 2018, Mr Li and Mr Tang signed the document entitled "Share Purchase Agreement" and dated 19 February 2018, (the February 2018 Share Purchase Agreement). 8. On 25 August 2018, Quickly Buys (NSW) Pty Ltd paid to Mr Li's bank account the sum of $20,000. 9. On 26 August 2018, Quickly Buys (NSW) Pty Ltd paid to Mr Li's bank account the sum of $20,000. 10. On 5 September 2018, Quickly Buys (NSW) Pty Ltd paid to Mr Li's bank account the sum of $11,600. 11. On or around 15 May 2019, Mr Li and Mr Tang signed the document entitled "Loan Agreement", (the May 2019 Loan Agreement). 12. On 24 January 2020, Weiwei JL Investments Pty Ltd and Mr Li signed a Deed of Assignment, (the Assignment). 13. On 31 January 2020, Mr Tang was given notice of the Assignment for the purposes of s 12 of the Conveyancing Act 1919 (NSW)." 1. The disputed facts requiring the Court's determination were then identified to be: "14. What was discussed between Mr Tang, Mr Li and his parents in or around March 2016, including whether the parties discussed and agreed the matters referred to as the 2016 Business Agreement in [6] of the First Defendant's Defense. 15. Without limiting 14, what (if anything) was discussed in relation to assisting Mr Li with obtaining a visa for the purposes of obtaining residency in Australia by way of employer sponsorship, and employment and employment-related expenses. 16. Whether $400,000 of the $800,000 paid to Quickly Buys on 4 May 2016 that did not represent part payment for the shares was paid on behalf of Weiwei JL Investments Pty Ltd or Weijian Li. 17. The extent of Mr Tang's ability to read and understand written English and whether, as Mr Tang contends, he is "not capable of writing and reading comprehensive English" as asserted in his affidavit of 24 August 2020 at [9]. 18. Whether Mr Tang did not read, understand or was not capable of understanding: (a) the May 2016 Loan Agreement; (b) the February 2018 Loan Agreement; (c) the February 2018 Share Purchase Agreement; or (d) the May 2019 Loan Agreement. 19. At whose request was the May 2016 Loan Agreement prepared, who presented it to whom for signing, and what was discussed at the time of signing it? 20. The payer and purpose of the $100,000 payments received by Mr Li on 17 June 2016 and 29 July 2016. 21. The amount spent on Weijian Li's employment and employment-related expenses. 22. The circumstances in which the February 2018 Loan Agreement and February 2018 Share Purchase Agreement were prepared, presented and signed, including what was discussed prior to and at the time of signing, and whether Mr Tang felt pressured to sign either or both of them. 23. The circumstances in which the May 2019 Loan Agreement was prepared, presented and signed, including what was discussed prior to and at the time of signing, and whether Mr Tang felt pressured to sign it." 1. There was finally no issue that the parties had entered a binding oral agreement in 2016; that in total $1 million had been transferred to Quickly Buys (NSW) from accounts in China; Mr Tang had not paid Mr Li $200,000 in 2016 as he had pleaded; and that Quickly Buys (NSW) had spent nothing on Mr Li's employment or employment related expenses. 2. Who drafted the 2016 loan agreement remained in issue. But that it was Mr Li's then girlfriend, now his wife, who is a lawyer, who drafted the 2018 agreements, was not in issue. 3. Whether Mr Tang was legally represented at the time that he entered the 2019 loan agreement, which was prepared by Mr Li's solicitors, also remained in issue, despite documents in evidence which suggested that he had such representation. 4. In resolving what remained in issue it is instructive to bear in mind what was finally identified for Mr Tang to be in issue, following his concession that a significant part of his pleaded case was withdrawn was: "2016 Business Agreement 1. Was the 2016 Business Agreement entered into? May 2016 Loan Agreement 2. Is the May 2016 Loan Agreement binding according to its terms? 3. If the answer to 1 is yes, did the May 2016 Loan Agreement have the effect of: a. varying the 2016 Business Agreement such that: i. $400,000 was repayable without deduction for Weijian Li's employment and employment-related expenses, rather than only the balance of that amount after deduction? ii. the $400,000 (or balance of $400,000 after deduction for Weijian Li's employment and employment-related expenses) was repayable on 4 May 2018, rather than only when Weijian Li had obtained permanent residency? iii. the lender was Weijian Li rather than Weijian Li's father? b. nominating the lender as Weijian Li pursuant to the 2016 Business Agreement? 4.3. What was the effect of Weijian Li subsequently deciding no longer to seek permanent residency on the due date for the loan? 5.4. Was Frank Tang a party to the May 2016 Loan Agreement as guarantor? 6.5. Was the guarantee (if found) unenforceable due to lack of consideration? May 2016 Share Purchase Agreement 7.6. Was the May 2016 Share Purchase Agreement entered into? 8. If the answers to 1 and 7 are yes, how did this vary the 2016 Business Agreement? September 2017 repayments 7. What was the nature of the $40,000 repayment in September 2017? February 2018 Share Purchase Agreement 9.8. Was the February 2018 Share Purchase Agreement unjust in the circumstances relating to it at the time it was made, within the meaning and operative scope of the Contracts Review Act 1980 (NSW), by reason of any or all of the following (as may be found by the Court): a. Frank Tang's lack of understanding of the agreement, because of: i. Frank Tang's lack of understanding of written English; ii. Frank Tang's lack of legal advice on or explanation of the agreement prior to signing it, and Weiwei JL Investments' and Weijian Li's knowledge of that fact, b. the preparation of the agreement by or on behalf of Weijian Li and the lack of negotiation of any of its terms; c. the circumstances relating to Weijian Li bringing the agreement to Frank Tang to sign; d. Weiwei JL Investments and Weijian Li taking advantage of Frank Tang's previous willingness to voluntarily pay some money out of goodwill and despite having no legal obligation to do so; e. the interest rate under the agreement (2% per month, or 24% per annum); f. the shares the subject of the sale, for the price of $600,000, being worthless, and Weiwei JL Investments' and Weijian Li's knowledge of that fact; g. Weijian Li's previous refusal of Frank Tang's offer of shares in Australia Quickly Buys Pty Ltd, for no consideration? 10.9. Did Weiwei JL Investments assign or take any steps to transfer its shares in Quickly Buys NSW to Frank Tang? 11. If the Court finds any or all of the matters in 9.a to 9.g, did that (whether or not together with 10) constitute unconscionable conduct on the part of Weijian Li and/or Weiwei JL Investments, within the meaning and operative scope of: a. the general law; b. sections 20 or 21 of the Australian Consumer Law; or c. sections 12CA or 12CB of the Australian Securities and Investments Commission Act 2001 (Cth)? 12.10. Should the Court declare the February 2018 Share Purchase Agreement void, or refuse to enforce it or any part of it? If part, which part? 13.11. When was Weiwei JL Investments obliged to transfer its shares in Quickly Buys NSW to Frank Tang? Were the payment obligations unconditional payment obligations, or conditional upon transfer of the shares? 14.12. What was the effect on the February 2018 Share Purchase Agreement (if any): a. if Weiwei JL Investments never assigned or transferred its shareholding in Quickly Buys NSW to Mr Tang; b. of the deregistration of Quickly Buys by ASIC on 6 October 2019; c. of the entry into the May 2019 Loan Agreement (see 2127); d. of the voluntary deregistration of Weiwei JL Investments on 10 March 2020? 15.13. Is clause 4.1 of the February 2018 Share Purchase Agreement an unenforceable penalty? February 2018 Loan Agreement 16.14. Was there any consideration from Weijian Li or Weiwei JL Investments for the February 2018 Loan Agreement? 17.15. Was Frank Tang a party to the February 2018 Loan Agreement as guarantor? 18. Did the February 2018 Loan Agreement, on its proper construction, provide that an amount more than the balance of the $400,000 previously lent that had not been repaid or spent on Weijian Li's employment or employment-related expenses was repayable? 19.16. Was the February 2018 Loan Agreement unjust in the circumstances relating to it at the time it was made, within the meaning and operative scope of the Contracts Review Act 1980 (NSW), by reason of any or all of the following (as may be found by the Court): a. the matters in paragraphs 8a9.a to 8e9.e, as applicable to the February 2018 Loan Agreement; b. the fact that Quickly Buys NSW was not trading at the time of the agreement, and Weijian Li's knowledge of that fact; c. at the time the February 2018 Loan Agreement was signed: i. some $40,000 of the $400,000 loan having already been repaid; ii. Quickly Buys NSW having spent or caused to be spent certain amounts as a result of Weijian Li's employment with Quickly Buys NSW and employer sponsorship; d. the February 2018 Loan Agreement not clearly stating that Frank Tang was a party to it as a guarantor; e. the amounts previously lent having been lent by and receipted to Weiwei JL Investments and not Weijian Li? 20. If the Court finds any or all of the matters in 19.a to 19.e19.d, did that constitute unconscionable conduct on the part of Weijian Li, within the meaning and operative scope of: a. the general law; b. sections 20 or 21 of the Australian Consumer Law; or c. sections 12CA or 12CB of the Australian Securities and Investments Commission Act 2001 (Cth)? 21.17. Should the Court declare the February 2018 Loan Agreement void, or refuse to enforce it, insofar as it: a. creates any obligations or liabilities for Frank Tang personally; b. provides for interest in default of payment at the times set out therein at the rate of 2% per month (or 24% per year); and/or c. provides for $400,000 to be repaid, despite the $40,000 repayment in September 2017? c. provides that an amount more than the balance of the $400,000 previously lent that had not been repaid or spent on Weijian Li's employment or employment­ related expenses was repayable? 22.18. Is clause 3.1 of the February 2018 Loan Agreement an unenforceable penalty? May 2019 Loan Agreement 19. If the February 2018 Share Purchase Agreement and/or the February 2018 Loan Agreement or any part of them are set aside or declared void, what is the effect of that on the May 2019 Loan Agreement, in circumstances where no money was lent under the May 2019 Loan Agreement, and no money had ever been provided to Frank Tang personally? 23. Was the May 2019 Loan Agreement unjust in the circumstances relating to it at the time it was made, within the meaning and operative scope of the Contracts Review Act 1980 (NSW), by reason of any or all of the following (as may be found by the Court): a. the matters in paragraphs 9.a, 9.b, 9.d, 19.c and 19.e, as applicable to the May 2019 Loan Agreement; b. statements in the May 2019 Loan Agreement being untrue, and which Weijian Li knew to be untrue, including: i. that Frank Tang had had legal advice; ii. that Weijian Li had lent money to Frank Tang personally, for the purposes of a business carried on by Frank Tang personally; c. Frank Tang not being provided with a copy of the mortgage Memorandum to which the May 2019 Loan Agreement referred; d. at the time the May 2019 Loan Agreement was signed, further amounts of the $400,000 loan having already been repaid (in addition to the amounts referred to in 19.c); e. discussions and assurances between Frank Tang and Weijian Li prior to signing the May 2019 Loan Agreement; f. the interest rates under the agreement; g. the charge over the Property purported to be granted under the May 2019 Loan Agreement, in circumstances where Weijian Li knew or ought to have known that the Property was owned by both Frank Tang and Yanjuan Guan as joint tenants, and which was their principal place of residence; h. any finding that the February 2018 Share Purchase Agreement and/or the February 2018 Loan Agreement is void and/or unenforceable? 24. If the Court finds any or all of the matters in 23.a to 23.h, did that constitute unconscionable conduct on the part of Weijian Li, within the meaning and operative scope of: a. the general law; b. sections 20 or 21 of the Australian Consumer Law; or c. sections 12CA or 12CB of the Australian Securities and Investments Commission Act 2001 (Cth)? 25. Should the Court declare the May 2019 Loan Agreement void, or refuse to enforce it or any part of it? If part, which part? 26.20. Is the rate of interest of 1% per month under the May 2019 Loan Agreement an unenforceable penalty? 27.21. What was the effect of the May 2019 Loan Agreement on the February 2018 Share Purchase Agreement and the February 2018 Loan Agreement? 22. What was the effect (if anything) of the Deed of Assignment? 28.23. If the May 2019 Loan Agreement is not effective in relation to the whole $1,000,000 identified in that agreement, is the remainder of the May 2019 Loan Agreement binding? Payments 29. How much did Frank Tang cause to be paid to Weijian Li, in repayment of the loan to Quickly Buys NSW? 30. How much did Quickly Buys NSW spend on Weijian Li's employment and employment-related expenses, and should these be deducted from the amount of the loan? Repudiation and termination 31.24. Did Frank Tang repudiate the May 2019 Loan Agreement? 32.25. If the answer to 2431 is yes, did Weijian Li validly terminate the May 2019 Loan Agreement on 21 February 2020? 26. If the answer to 2532 is yes, what relief will flow? Interest 33.27. How should any interest be calculated? What is the effect of clause 4.3 of the May 2019 Loan Agreement on that calculation? Charge over the Property 34.28. Is there an effective charge over Frank Tang's aliquot share in the Property, in favour of Weijian Li? 29. If so, what obligations does that charge secure? 35.30. Is the charge enforceable following termination of the May 2019 Loan Agreement? 36.31. Should the Court order the sale of the Property and grant possession as ancillary relief?" 1. Mr Tang's concessions accorded with the obligations imposed on the parties and their legal representatives by s 56 of the Civil Procedure Act 2005 to assist the Court facilitate the overriding purpose there specified, "the just, quick and cheap resolution of the real issues in the proceedings". They were also relevant to the resolution of various of the remaining issues, including in relation to the credibility and reliability of the evidence given by Mr Li and Mr Tang. Credibility and reliability 1. Mr Tang's concession that a term of the business arrangement which he had advanced in his defence had not been agreed, as well as the many concessions which he made in cross-examination, help explain why his evidence cannot be accepted without corroboration and why in the case of conflict Mr Li's evidence must be preferred. So do contemporaneous documents which are inconsistent with aspects of Mr Tang's evidence. 2. Mr Li's case was that in relevant respects Mr Tang's evidence was untrue and could not be accepted. Mr Tang's case was to the contrary. 3. In final submissions it was argued that Mr Li's evidence had been self-serving, especially in relation to what had been agreed in relation to his visa, which he was keen to downplay as a factor in what had been agreed, as well as in relation to his interest in staying in Australia and working in the concrete industry. 4. I am satisfied that Mr Tang's submissions may not be accepted. 5. Mr Li was frank about his desire to pursue the opportunity to live and work here and the role that played in his decision to make the investment in Mr Tang's company. What remained in issue was what Mr Tang claimed had been agreed in relation to Mr Li's pursuit of a visa. Mr Tang admitted his own wrongdoing in relation to his own visa. I do not accept that it can be concluded that Mr Li was also involved in such wrongdoing, or that it was its abandonment, which led him to pursue repayment of the investment, which I do accept that Mr Tang had promised. 6. In order to understand these conclusions, it is necessary to put the competing evidence into context. Quickly Buys (NSW) 1. It was Mr Tang who in his affidavit described the businesses in which he was involved and how Quickly Buys (NSW) came to cease trading. 2. Mr Tang there deposed that in 2015 he had been approached by a Mr Yang and Mr Zhuang, who were operating a business known as Quickly Buys, (or "Sougo" in Chinese), in China. It was a one stop shop platform business for the sale of a range of construction and renovation materials. He was experienced in the construction and renovation industries in Australia and they sought his assistance in establishing a similar business here, they having already set up Australia Quickly Buys Pty Ltd for that purpose. 3. Mr Tang understood that they intended to set up separate businesses in each State, by way of joint venture, with Australia Quickly Buys leasing premises and importing products from China from suppliers who provided goods on credit, each State entity then adding a margin on goods which they were to sell from a warehouse. 4. Australia Quickly Buys' first joint venture was established in Sydney, with Quickly Buys (NSW) being incorporated in March 2015. Mr Tang was then given a minority shareholding in Quickly Buys (NSW), became a director and managed its business. A Mr Wei also invested in the business. Mr Tang's company, Building 100 Pty Ltd, finally leased the warehouse which Quickly Buys (NSW) used, rather than Australia Quickly Buys, but Quickly Buys (NSW) paid the rent. All of the stock imported was stored in the Quickly Buys (NSW) warehouse. 5. Mr Tang claimed to have invested over $1million in Quickly Buys (NSW)'s business and other shareholders around $600,000, which was required for expenses, including the warehouse fit out. 6. Mr Yang and Mr Zhuang initially managed Australia Quickly Buys, but they were not familiar with Australian standards, with resulting problems for Quickly Buys (NSW). The business did not go well and Mr Tang then agreed with Mr Yang and Mr Zhuang that they would transfer all of their shares in Australia Quickly Buys to him; he would also operate its business; and he would be responsible for dealing with Australia Quickly Buys' outstanding payments to suppliers. 7. Mr Wei also quit the business and in December 2015, Mr Tang became the sole shareholder of both Australia Quickly Buys and Quickly Buys (NSW). 8. In early 2016 when he met Mr Li and his parents, Mr Tang was still sole director and shareholder of both companies and was managing the entire business. He was then in discussion with Lesso Mall (Australia) Holdings Pty Ltd, which was controlled by a large Chinese publicly listed company, China Lesso Groups Holdings Limited, about the purchase of Quickly Buys (NSW). But no formal proposal had been made and the structure of the deal had not been discussed in detail. 9. In March 2016 Mr Tang transferred 170 Quickly Buys (NSW) shares to a Mr Pan, who also became a director and supplied the company with large quantities of ceramics on credit, Mr Tang retaining only 30 shares himself. No evidence was called from Mr Pan. 10. In May 2016 Mr Tang directed Quickly Buys (NSW) to issue 100 new preference shares at $10,000 per share with 60 then issued to Weiwei, he claimed, in accordance with the 2016 business agreement. The $600,000 paid for the shares was used for the purposes of its business. 40 preference shares were then issued to his company, Building 100. 11. Quickly Buys (NSW) was not, however sold. Instead Mr Tang negotiated a joint venture between Australia Quickly Buys and Lesso Mall (Australia) Holdings Pty Ltd under which a joint venture company, Lesso Building Material Trading (Sydney) Pty Ltd, was formed. It then carried on the business, having agreed to take over the warehouse, its fit out and office equipment, but not to acquire the stock in trade. 12. On Mr Tang's evidence the joint venture agreement was made in July but not formalised until December 2016, after which Building 100 was paid for the warehouse, fit out and equipment, it agreeing to then pay Quickly Buys (NSW). Neither the joint venture agreement nor any agreement with Building 100 are in evidence. There is no suggestion that Quickly Buys (NSW) was a party to the joint venture agreement, or that Mr Li was aware of its terms, or what had been agreed with Building 100. 13. But on his evidence Mr Li was present when the joint venture document was signed at a lunch at a private jetty owned by his then girlfriend. 14. On Mr Tang's evidence, at the time the joint venture was entered, neither the businesses of Australia Quickly Buys nor Quickly Buys (NSW) were doing well. Quickly Buys (NSW) was having difficulty meeting its rental payments and he feared that it might have to be put into administration. Mr Tang did not disclose what payment it received, as the result of the joint venture, but said that the money was applied to pay its debts. No payment was made to Mr Li. 15. On Mr Li's evidence Mr Tang had told him that Quickly Buys (NSW) was to be sold for more than $5million and he only became aware of Mr Pan's involvement in Quickly Buys (NSW) after he visited the business in August 2016, when Mr Tang had told him that the deal with Lesso might not be for as much as $5million, but they should have no problem getting $3million. Mr Tang also told him "but don't worry you will still get your money back. I promise". Later he told him that Mr Pan was dealing with Lesso in China, which had agreed to only $2.4million, after seeing the financial documents. They are also not in evidence. 16. Mr Li's evidence was that he was never given details of the agreement, nor asked to consent to it and in January 2017 when he asked Mr Tang about the sale, he was told that the company had been sold; he had only received $3million and most of it was paid to Mr Pan. But Mr Tang said again "don't worry, I will definitely repay your money." 17. While Mr Tang denied these conversations, he did not tender the joint venture agreement or any financial records which could have established what was agreed and paid and that his evidence was accurate. 18. On Mr Tang's evidence, under the joint venture agreement Quickly Buys (NSW) was given 9 months to sell its stock out of the warehouse. Mr Tang believed it to be worth about $1million and claimed that he had hoped to pay out the balance of what was owed under the 2016 business agreement, when it became repayable in 2018, by selling this stock. But the stock was difficult to sell because it did not meet Australian standards and was eventually removed from the warehouse and stored in another warehouse which belonged to him, where it remained. 19. As a result, Quickly Buys (NSW) ceased to trade and was later deregistered. Mr Tang's command of English 1. It is convenient now to explain my conclusion about Mr Tang's evidence, by reference to the issue over his command of English. 2. Mr Li and Mr Tang spoke to each other in Cantonese, other than when in company with English speakers and in writing, including on WeChat, they communicated with each other in Mandarin. Mr Li gave his evidence in English, while Mr Tang had the assistance of an interpreter. 3. On Mr Li's evidence while they communicated with each other in Cantonese, Mr Tang spoke to employees and others at work in English and also there read and wrote in English. Mr Tang disputed this 4. I am satisfied that Mr Li's evidence must be accepted. Mr Tang's evidence in cross-examination established that he had a much greater command of spoken and written English than he claimed, consistent with having come to Australia over 30 years ago to study English here. His work since then involved building up and operating a multi-million dollar business in which he not only employed staff, imported goods from China and sold them in the Australian construction industry, but permitted him and his other companies to pursue the joint venture. 5. In the course of his business dealings he spoke and wrote in English, as well as reading and understanding commercial documents written in English, including when he entered into the joint venture, after which he became the CEO of the joint venture company. 6. In his affidavit amongst other things Mr Tang had claimed that it was Mr Li who had produced the 2016 loan agreement for him to sign; he did not understand all of the English words, terms and concepts used in that agreement, nor its meaning and effect; that he believed that the agreement was between Quickly Buys (NSW) and Mr Li's father; and that he did not know the agreement contained a personal guarantee and indemnification from him, if Quickly Buys (NSW) failed to repay Mr Li. That evidence cannot be accepted. 7. In a painstaking cross-examination, because of his initial resistance to what was being put to him, amongst many other things, Mr Tang conceded that: * he understood the various responsibilities which he had as a director; * in that position he had reviewed and understood documents written in English, such as purchase orders and tax invoices; * he could understand some parts of commercial documents such as leases, about which he obtained advice; * he had arranged for Quickly Buys (NSW) to give a bank guarantee in respect of its lease; * he had borrowed money from NAB when he purchased the property and had entered the mortgage it held, understanding that the property was given as security for the loan and what that meant; * he spoke to employees in English, but still denied writing in English; * he read and understood documents written in English which employees, including Harry, his accountant, provided him; * he read and understood share transfer documents; * he could also understand simple commercial documents and emails written in English; * he could read and understand the various agreements which he had signed, including the 2016 loan agreement, although at the time he did not pay much attention to what it contained, not caring what it said and claiming not to understand that it was a formal legal document; * when further pressed he accepted that he had signed many commercial documents and understood that by signing them, he signified that he agreed with them; * further, that when he signed the 2016 loan agreement he appreciated that he was agreeing to be bound by its terms; * he was capable of reading that agreement; * it was he who directed Harry to issue the receipts after the 2016 loan agreement was signed which indicated that it was Weiwei which had made the payments and he could read what they said; and * it was he who gave the instructions for the shares to be issued to Weiwei. 1. Mr Tang denied then understanding, however, that he was personally giving a guarantee by the 2016 written loan agreement. 2. This also cannot be accepted, given all the other of Mr Tang's concessions about his real command of English, commercial experience and understanding, which amply established that much of his affidavit was in relevant respects untrue. That included his there claimed lack of understanding of the simple 2016 loan agreement which he signed and that it was Mr Li who had produced that agreement for him to sign. His evidence was also in parts contradictory, to which I will return. 3. I am well satisfied that Mr Tang's command of English permitted him both to read and understand the written agreements which he signed in 2016, 2018 and 2019, had he bothered to read them, which on his evidence, he did not. 4. It is also relevant to this conclusion that in 2018 Mr Tang brought other proceedings in this Court, which arose out of the joint venture. In an affidavit which he swore in those proceedings in May 2018 he explained his sophisticated commercial dealings, an affidavit which on its face had not been prepared with the assistance of an interpreter. 5. Mr Tang's evidence about this affidavit, which was executed at a time when disclosure that it had been prepared with the assistance of an interpreter was not required, was that he had also then required the services of an interpreter, both to produce the affidavit and to translate English documents to which he there referred and from which he quoted. 6. I am satisfied that evidence also could not be accepted, given Mr Tang's other evidence, which established the real position about his extensive command of English. 7. Pertinently, in that affidavit Mr Tang also gave an account of his dealings, which did not accord with many aspects of his evidence in this case. 8. Mr Tang said in these proceedings that before the joint venture was agreed, Quickly Buys (NSW) was having difficulty meeting its rent and he feared it might have to be put into administration, so that the investment was applied to paying its debts. That was contrary to what he represented to Mr Li and his parents about its circumstances, when pursuing the investment. 9. In his May 2018 affidavit Mr Tang also said that when a representative of Lesso had approached him in early 2016, he had offered to sell the business for $4.8million. That was not consistent with Mr Tang having then told Mr Li and his parents that it was worth only $3million, as he claimed in the affidavit he swore in these proceedings, denying he had told Mr Li about a sale for $5million, as was his evidence. 10. In the May 2018 affidavit Mr Tang also said that he had pursued discussions with the chairman of the Lesso Group about its desire to enter the Australian market and explained the agreement reached for the fit out and equipment to be purchased for $2,505.00, to which he had agreed, even though almost $4million had to that point been invested in the business. That was also inconsistent with his evidence in these proceedings. 11. Mr Tang also there described how the terms of a shareholder's agreement were arrived at and the joint venture company incorporated, with Australia Quickly Buys holding 49 shares in the joint venture and him becoming its CEO. The joint venture began to trade, but its business model did not succeed and negotiations ensued about how the joint venture would be brought to an end. 12. In April 2018 a demand was served for repayment of over $18 million Lesso claimed to have advanced to the joint venture company by way of loan. Mr Tang deposed that advances had been made to the joint venture on a non-recourse basis and that he had concerns about misappropriation of funds. Issues had arisen about the solvency of the joint venture company. Negotiations over the acquisition of his shares did not result in any agreement, with the result that he had brought those proceedings. 13. This 2018 affidavit was entirely inconsistent with Mr Tang not having sufficient command of English to understand the simple agreements which he executed in 2016 and 2018, let alone the more complex 2019 agreement, in respect of which I am satisfied he had legal advice, contrary to his evidence, to which I will return. Jones v Dunkel inferences 1. Mr Li denied that the 2016 business agreement on which Mr Tang's defence rested had come into existence, or that his father was a party to the 2016 oral agreement. Mr Tang denied that his accountant Harry had produced the 2016 loan agreement for he and Mr Li to sign at their meeting, as was Mr Li's evidence. 2. Neither Mr Li's father nor Harry were called, nor did Mr Tang rely on financial, legal or other records which could have supported his accounts about relevant matters. 3. Mr Li said he had signed the 2016 written loan agreement because he was not a lawyer and he trusted Mr Tang, when he had Harry produce it for him to sign, on the day the final $800,000 payment was received. That was also why he did not later object when given the receipts Harry had prepared, which indicated that Weiwei had paid the $1million, which it had not. He said that was because he did not then understand the difference between himself and his company and so was not worried about this. 4. Harry had prepared other documents in evidence, including a handwritten note to Mr Tang in English and could have shed light not only on matters such as how the 2016 loan agreement came to be produced and signed, but also on Mr Tang's real command of English, amongst other matters. A Jones v Dunkel inference thus runs against Mr Tang, there being no explanation for why Harry was not called. 5. That inference is concerned with a party's unexplained failure to give evidence or call a witness, where it would be natural for that evidence to be led, or where the party might reasonably be expected to lead that evidence. Its operation raises three relevant considerations: first, that the missing witness would be expected to be called by one party rather than the other; secondly, that this evidence would elucidate a particular matter; and thirdly, that the absence is unexplained: RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75]-[96]. 6. A similar inference arises in relation to Mr Li's failure to call evidence from his father, who could also have given evidence on matters in issue in relation to the claimed 2016 business agreement and thus the credibility of Mr Li and Mr Tang. There was also no explanation for evidence not being called from him. The reason why Mr Li's mother was not called was explained, namely, Mr Tang's concession that he had not in fact paid Mr Li $200,000, as he had pleaded. 7. But it must also be taken into account that the case which Mr Li advanced turned on the proper construction of the 2018 and 2019 agreements, about which it does not appear that Mr Li's father could have given any evidence. There is no suggestion that he was a party to those agreements, or involved in their negotiation or drafting. Conclusion 1. Despite Mr Li's father not having been called, given all of the problems with Mr Tang's evidence I have already explained and those which I will further discuss, I am well satisfied that in the case of conflict his evidence could not be preferred over that of Mr Li. 2. That conclusion was also supported by Mr Tang's evidence in cross-examination about his history of dishonesty in relation to his own visas, which it is unnecessary here to explain, but in respect of which he was given a certificate under s 128 of the Evidence Act 2005 (NSW). The 2016 agreements 1. It is not in issue that in 2016 both an oral agreement and the 2016 written loan agreement were made. 2. What lies in issue about them has to be resolved in light of the parties' commercial purposes in reaching those agreements, about which there was also a dispute. 3. The onus falls on Mr Li to establish that the oral agreement which he described came into existence, rather than the 2016 business agreement on which Mr Tang advanced his defence. 4. I am satisfied that Mr Li met that onus. 5. In reaching that conclusion I have not accepted that Mr Li's evidence in cross-examination was, as was submitted for Mr Tang in closing, that he did not make a distinction in his own mind between Mr Tang and his company, which was argued to support the conclusion that Mr Tang had given no personal guarantee under the oral agreement. 6. Mr Li's evidence in cross-examination was that Mr Tang had repeatedly promised that he would return the investment after Lesso took over. He also said that he did not draw a distinction between himself and Weiwei, when it was issued receipts for the $1million paid. 7. Mr Li also denied that the entire $1million was not a loan, because $600,000 was paid for shares. He explained that he did not care about the shares which were issued and only $400,000 being a loan, because the structure had been Mr Tang's idea. He trusted Mr Tang and his promise to return the $1million after the Lesso sale, a guarantee which Mr Tang had repeated at every dinner before the investment was made. 8. While that was not what the 2016 written loan agreement provided for, Mr Li insisted that it was a part of the oral agreement and something that Mr Tang also repeated in 2017 and in 2018 and 2019, when they signed the further agreements. Mr Tang denied this, his case being that he and Mr Li remained bound by the business agreement, under which he had not provided any guarantee. 9. I am satisfied that Mr Tang's evidence about the parties to and terms of the 2016 oral agreement simply cannot be preferred over that of Mr Li, for reasons which I will explain. Conclusion 1. In summary I have thus concluded that: 1. in 2016 Mr Li, Mr Tang and Quickly Buys (NSW) initially entered an oral agreement under which the $1million was invested, with Mr Tang guaranteeing its repayment after Quickly Buys (NSW) was sold to Lesso, its terms reflecting the structure he had suggested, $400,000 by way of loan and $600,000 for a 20% interest in the company's shares; 2. despite the receipts Quickly Buys (NSW) later issued, none of the $1million was paid by Weiwei; 3. the 2016 business agreement on which Mr Tang's defence rested, to which he claimed Mr Li's father was also a party, never came into existence; 4. it was also Mr Tang who had the 2016 written loan agreement, which documented the $400,000 loan agreed as part of the 2016 oral agreement, but contained more favourable terms as to repayment, it there being agreed that the loan would not be repayable for 2 years, prepared and presented it to Mr Li to sign at his office, after the final payment was received. The commercial purpose of the $1million investment; 1. In resolving what lies in issue account must be taken of the parties' commercial purposes, which was also in issue. 2. As the Chief Justice observed in Lawrence v Ciantar [2020] NSWCA 89, in Australia the principles surrounding the construction of commercial contracts are well established: at [98]. In Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 it was observed that "[t]he meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean" in context: at [35]. Further, that "it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract." 3. These requirements do not alter because those who are involved in commercial dealings come from other countries, or that they communicate with each other in languages other than English, as Mr Li and Mr Tang did. But such circumstances can shed light on the commercial purpose or objects of the contracts which they enter with each other and must thus be taken into account. 4. It seems inherently improbable that: * four people unknown to each other, who all came to Australia from China, two of whom are living here, one long term and the other having recently completed his university studies and the other two, his parents, who live in China and are visiting their son here, are introduced to each other in Sydney by a waiter known only to the long term resident, who only met the family when he served them at a restaurant at the fish market; * the four then meet at a dinner where the long-term resident tells the family that he is looking for investors in his building supply company, which imports supplies from China for sale in the Australian market; * the four meet again over some meals and at the company's warehouse, when they discuss the imminent sale of the company and in that context, a $1million investment; * the parents return to China and the son then does some work, unpaid, in the company's business; and * the son then incorporates an Australian company of which he is the sole director and shareholder and without anyone first obtaining any legal or financial advice or the terms of the agreement being documented, $1million is paid from China to the company, on the basis that no interest will be payable on the investment. 1. Yet there is no issue that this is what occurred, with the result that who the parties to the 2016 oral agreement were and what its other terms were, are all in issue. 2. This explains the submission finally advanced by Mr Li's counsel, that in his experience in other cases, other Chinese nationals had advanced very large amounts of money under oral agreements to people they barely knew, in order to purchase interests in businesses or property, which, it was submitted would appear to be a cultural difference. 3. That was echoed in submissions advanced for Mr Tang, that both he and Mr Li had proceeded on the assumption that their real arrangement was something other than what was in writing and that their attitude had been that what had been discussed orally was more important than the paperwork, with the result that "Perhaps your Honour might conclude that that is a Chinese cultural assumption". 4. Mr Li's case relied however, on the written agreements. It was Mr Tang who claimed not to be bound by any of them, having never intended them to displace the claimed oral business arrangement. Resolution of this does not depend on cultural differences, but the consequences in law of their respective actions, to which the commercial purposes of the agreements which they entered is relevant. 5. Typically, the commercial purpose of an investment in an operating business will be obvious, even under an oral agreement, namely, to make a return on the investment. But in this case, it was common ground that it was not a term of either the oral agreement or the 2016 written loan agreement, that any interest would be paid on the investment. 6. On Mr Li's case, despite this, he expected quickly to make a considerable return under the 2016 oral agreement, Mr Tang having represented that Quickly Buys (NSW) was about to be sold to a large Chinese company for over $5million and it having been agreed that for the $1million investment, Weiwei would obtain a 20% shareholding in Quickly Buys (NSW), with $400,000 also to be repaid after the sale and Mr Tang guaranteeing the repayment of the entire investment. 7. This was disputed by Mr Tang, although there is no issue that the sale being pursuing was discussed before the $1million was paid and he agreeing in cross-examination, that he was then very positive about Quickly Buys (NSW)'s financial prospects. 8. Mr Tang was considerably older than Mr Li, an experienced businessman who also agreed in cross-examination that he considered himself socially an elder, more experienced and to be respected by Mr Li. When they met Mr Li was interested in pursuing a career in Australia, for which he clearly had his parents considerable support. This, no doubt, was discussed in their meetings with Mr Tang, who on his own evidence needed investors. 9. In his affidavit Mr Tang's account was that before he met Mr Li and his parents, he had agreed to acquire all the shares in Australia Quickly Buys of which he remained sole shareholder and director and had day to day operational management of Quickly Buys (NSW), with his company Building 100 Pty Ltd having leased the warehouse and Quickly Buys (NSW) paying the rent, fitting out the premises and conducting its business there. He was also pursuing its sale to Lesso. 10. That was the position when Mr Tang met Mr Li and his parents. In his affidavit he said that when he met them he probably mentioned his intention to expand the business and that he welcomed investors, in which Mr Li's father was very interested and so invited them to visit the warehouse. 11. In March 2017, Mr Tang transferred 170 of the 200 issued ordinary shares to Mr Pan and retained only 30 and Mr Pan became a director and provided credit to Quickly Buys (NSW). Mr Tang did not suggest that he had revealed this to Mr Li and his parents. 12. But Mr Tang denied telling them the things to which Mr Li deposed about the profitability of the business, claiming that he had mainly introduced them to the business during their visit and that it was Mr Li's father who raised the possibility of helping Mr Li to obtain a work visa and investing in the company. 13. Mr Tang also denied Mr Li's evidence that it was he who had proposed that the $1million investment be structured as a $400,000 loan and $600,000 to purchase the shares. In cross-examination he said that was the result of a negotiation. 14. But it was Mr Li and Mr Tang who discussed and reached agreement on this structure and Mr Li who incorporated Weiwei, to whom the shares were to be issued after the funds were received by Quickly Buys (NSW). The day it issued the shares, the 2016 written loan agreement between Mr Li and Quickly Buys (NSW) was signed by Mr Li and Mr Tang and receipts were later provided by Quickly Buys (NSW), albeit incorrectly to Weiwei. Mr Li's evidence that he was not concerned about this at the time, being its only shareholder and director, must be accepted. 15. On Mr Tang's evidence, while he had represented that a sale was imminent, he had said the price was $3million, the $600,000 thus representing a 20% interest. That was inconsistent not only with Mr Li's evidence, but also with his 2018 affidavit, as I have explained. Mr Tang also denied having any discussion about the future sale of those shares, or the return of the investment thereafter. That was denied by Mr Li. 16. Given Mr Tang's own evidence about how the investment came to be made and what he had deposed to in his 2018 affidavit about the proposed sale of Quickly Buys (NSW), that is quite improbable. How else could he have attracted an interest free $1million investment in that company? 17. On Mr Tang's case that was explained by the real purpose of the business agreement, which was not for a profit to be made on the investment, but to assist Mr Li to obtain a working visa and ultimately residency in Australia, which he expected would to take up to 4 years, by giving Mr Li employment in the business. 18. That, too, was denied by Mr Li and it must be concluded was quite unlikely, given that undeniably when Mr Tang was pursuing the investment, he represented that Quickly Buys (NSW) was about to be sold to a large Chinese company. 19. Mr Tang's case about the business agreement and its commercial purpose rested on a conversation he claimed he had with Mr Li's father over lunch, before he returned to China, when Mr Li was present: "My son has just graduated and his student visa has expired, and he is applying for another student visa. I want him to stay in Australia and settle here. Maybe he can do some business like selling cement to Australia. I operate a very large business in China, and if we can work together, it would benefit everyone. I am thinking if I invest in your company, can your company help my son to obtain a working visa? Me: Yes I am happy to help. I think my company is able to get employer sponsorship and help your son to get a permanent resident visa through applying for a working visa. Plaintiff's Father: That's great. How much investment would you need? Me: In terms of investment, I can't give a value of the company, but a large Chinese company LESSO is discussing with me to buy the company now. During my discussions with LESSO, I valued my company at three million dollars, so you can come in at this value. You can take 20% of the shares in my company by investing $600,000.00. But you will have to bear all costs in terms of your son's migration, and you will need to provide some additional funds for migration cost. Plaintiff's Father: Ok, I can invest $600,000.00 in your company because I am interested in investing in your type of business in Australia. And of course we will bear the cost of my son's migration, how much would it be? Me: Migration cost will include your son's salaries, costs for the company to obtain employer sponsorship and other related costs. The migration process for your son to get a permanent residence through a working visa will take a few years. Considering the company needs to pay your son 3-4 years' salary, initially maybe around $55,000 when he obtains his 457 working visa and later will be increased to around $80,000 when he is eligible to apply for 186 permanent residence visa, plus superannuation, I suggest that your total investment be $1 million, which represents $600,000 investment and $400,000 costs for your son's migration cost including his salaries. Once your son gets the visa, then any money left over from the $400,000, the company will pay you back. Plaintiff's Father: I am OK with that, and this would really benefit everyone." 1. That conversation was denied by Mr Li, who was present. It does not establish that the business agreement came into existence, let alone that the purpose of the oral agreement which undoubtedly did, was to assist Mr Li to obtain a working visa and ultimately residency in Australia. 2. Rather, I am satisfied, the commercial purpose of the oral agreement was to make the quick return on the considerable investment Mr Li decided to make in Quickly Buys (NSW), following the sale Mr Tang had represented was impending, having had the experience of working with Mr Tang at its warehouse and coming to know him and trust him. 3. That conclusion is supported by the fact that Mr Tang gave no evidence of discussing any changes to the business agreement on which his defence was advanced and yet in opening his case abandoned his claim that it was a term of that agreement that Mr Li's employment costs were to be paid out of the $400,000 advanced to Quickly Buys (NSW) by his father. 4. Because of some later served evidence about his legal representation in relation to the 2019 agreement, Mr Tang was given leave to give oral evidence in chief about the solicitors who on Mr Li's case had acted for him on the 2019 agreement. Then he explained that at the time he thought that Mr Li was being greedy, because some of his investment had been returned and he had not made such a big loss and so suggested that he should only repay $850,000. But Tang did not seek to give any evidence to explain the abandonment of his claims about what had been agreed about Mr Li's employment costs. 5. The abandonment of that claim, however, not only helps establish that the claimed business arrangement never existed, but also that the real purpose of the investment which Mr Tang pursued was to make a return on the investment, as was Mr Li's case. The parties to and terms of the 2016 oral agreement 1. That Mr Li's father was a party to the oral agreement was still in issue. I am satisfied that he was not. 2. On Mr Li's evidence he was not only involved from the outset in all the discussions, no agreement was made before his parents returned to China and it was he who later entered the oral agreement with Mr Tang. That was also denied by Mr Tang. 3. Mr Li's evidence about what Mr Tang told he and his parents, who had a cement business in China, in their meetings in February and March 2016 before they returned to China included that: 1. His company owned the stock in the warehouse; that he had supply contracts with many developers; a lot of developments needed the materials he could supply and the market in Australia was so big that he could make a profit without much effort, so that if they wanted to invest, there was a lot of opportunity in his company; 2. that Lesso was interested in acquiring his company for more than $5million; 3. that he then needed $1million and was willing to sell 20% of the company on the basis it was worth only $5million; and that they could make a lot of profit if they invested then; 4. he would guarantee that they will not lose any of the $1million; and 5. Mr Li could gain some work experience with him. 1. Before Mr Li's parents returned to China Mr Tang presented them with a document for a $1million investment to review, but they wanted more time to consider. They were not given a copy of the document to retain. This was all denied by Mr Tang, but it was common ground that afterwards, Mr Li performed some work in the Quickly Buys (NSW) business. 2. On Mr Li's evidence, before his parents returned to China, they were not willing to invest and it was only as a result of his work experience, that he become prepared to do so. 3. Mr Li said that Mr Tang had earlier offered him the opportunity to obtain some experience in his business, which he took up in April, when he began work at the offices above the warehouse at Greenacre. Having had that experience Mr Li decided to make the investment because he had formed a positive view of Mr Tang. He had met Mr Tang's wife and mother and he appeared to be a good family man, which Mr Li considered to be important. 4. Mr Li had earlier discussed with his parents his ambition to follow the family business in construction in Australia and his father had asked Mr Tang if he was aware of any work opportunities or experience which Mr Li could pursue, which Mr Tang offered to give him. At that time Mr Li was 24 years of age, having recently completed his university studies here. 5. On his account Mr Li made the initial oral agreement with Mr Tang, incorporated Weiwei and signed the May 2016 loan agreement which Mr Tang presented him the day Quickly Buys (NSW) received the final payment. While this was disputed by Mr Tang, he did not deny that Mr Li was a party to the oral agreement under which the payments were made. 6. In cross-examination Mr Li insisted that it was he who had made the $1million investment using family money, even though the three transactions by which the money was paid were arranged by his parents in China. First $200,000 by his mother and then two payments of $400,000 by his father, after which he signed the written loan agreement Harry presented and the shares were issued. The payments were made because his parents had respected the decision which he finally made about wanting to stay in Australia to work and to invest in the Quickly Buys (NSW) business. 7. In cross-examination Mr Li accepted that that there had been an oral agreement about the entire $1million investment, before any money was paid. But he insisted that his father was not a party and that Mr Tang had also guaranteed that the entire amount would be repaid, when Quickly Buys (NSW) was acquired by Lesso. 8. Mr Li returned to China in 2017. The investment not having produced the promised return, he did not make an application for a work visa, although one had been prepared. His existing visa was then coming to an end, the business was not succeeding and Mr Tang had effectively demoted him from the position of purchasing manager and so he went home. 9. There was no issue that in 2017, Mr Li began pursuing Mr Tang for repayment of the $1million and in September Mr Tang paid him $20,000 on two separate occasions. 10. On his affidavit evidence Mr Tang met Mr Li and his parents at a dinner party at Mosman where he "introduced" the Quickly Buys (NSW) business to other guests; "probably" mentioned that his intention was to expand its business; and said that he always "welcomed" investors to join. Mr Li's father was very interested and asked him questions about the business and industry in Australia and they had the conversation earlier quoted. 11. But Mr Tang did not remember Mr Li, who was also sitting with them at the table, being involved in those or any other of his other discussions with Mr Li's father, although he did not dispute that he was always present and became a party to the oral agreement. 12. Thus, there was also a dispute about Mr Li's involvement in the initial and later discussions. I am satisfied that he was. 13. Mr Tang's claim that he had conducted all of his negotiations with Mr Li's father and reached the business agreement as the result of those discussions cannot be accepted, even on Mr Tang's own evidence. 14. On Mr Tang's affidavit evidence, he approached Mr Li at the warehouse in April 2016, in order to pursue the investment. In cross-examination Mr Tang said that Mr Li was then "inspecting there". That is not consistent with the business arrangement having earlier been agreed with Mr Li's father. 15. Mr Tang's evidence was that it was he who approached Mr Li in April 2016 in order to pursue the investment, Quickly Buys (NSW) then needing the funds. This and Mr Tang's withdrawal of his claim that he had agreed with Mr Li's father that Mr Li's employment or employment related expenses were to be deducted from the $400,000 loan, supports the conclusion that the claimed business agreement on which Mr Tang's defence rested never existed. 16. I am satisfied that it must thus be concluded that the evidence establishes that before Mr Li made the $1million investment, he, Quickly Buys (NSW) and Mr Tang had arrived at an oral agreement that his investment would be structured so that Quickly Buys (NSW) would issue a 20% shareholding to Weiwei and $400,000 would be received as an interest free loan, with Mr Tang guaranteeing the repayment of the entire $1million, after the shortly anticipated sale of the company to Lesso. This was consistent with the guarantee provided in the 2016 loan agreement. 17. That conclusion was also supported by aspects of Mr Tang's evidence in cross-examination, which were contradictory. 18. At one point, contrary to the withdrawal of the claim that it had been agreed that the $400,000 would be used to pay Mr Li's employment expenses, Mr Tang insisted that Mr Li's father had proposed making the investment in return for Quickly Buys (NSW) employing Mr Li and that it was agreed that the $400,000 was to be used to pay his salary and visa expenses. 19. But there was then no issue that Quickly Buys (NSW) neither paid Mr Li a salary, nor any visa expenses and that Mr Li returned to China when his visa was expiring, not having made any further application for a visa, despite one having been prepared. 20. Inconsistently, later in cross-examination Mr Tang said that he no longer claimed any deduction on account of any salary or visa expenses; accepted that the $400,000 was loaned to Quickly Buys (NSW), which had an obligation to repay that money but, he claimed at that point, only after 4 years. He agreed, however, that this was not a claim which he had advanced in any of his WeChat discussions with Mr Li about repayment of the $1million and had not been included in his affidavit. 21. That there was no such agreement was reflected by further evidence which Mr Tang later gave, when he said that his case was not that the loan was repayable after 4 years, but after Mr Li got permanent residency. 22. Mr Tang's evidence about the claimed business agreement was thus so unreliable and contradictory that it cannot be accepted, let alone preferred over that of Mr Li. 23. It is also relevant that after the investment was made Mr Li worked in the business as a purchasing assistant and then purchasing manager, he said because of his language proficiency and experience in his family business, but he was not paid. It was not until September 2016, after he signed an employment contract in August, following, he understood, Lesso having taken over, that Mr Li began being paid for his work. Even then he was paid for only two periods, the first between September and October 2016 and the second between November and January 2017. But he was never paid by Quickly Buys (NSW). 24. Mr Li also did not apply for a work visa in Australia before he returned to China in early 2017, when his visa was expiring. His investment had not been repaid and it is not in issue that the business was not doing well. Later he and Mr Tang entered the 2018 and 2019 agreements, Mr Tang having earlier made various payments to Mr Li. On Mr Tang's evidence that was at a time when Quickly Buys (NSW), being unable to sell the stock which the joint venture had not acquired, had ceased to trade; the joint venture business also failed; and he was having financial difficulties. 25. None of this is consistent with Mr Li and Mr Tang having ever been bound by the 2016 business agreement, which Mr Tang never intended to alter, by the written agreements which he later signed, as he also claimed. 26. To the contrary, as Mr Tang conceded, he made no reference to the claimed business agreement in any of his written communications with Mr Li, when Mr Li was pursuing him for repayment of the $1million and never denied his obligation to repay. 27. Mr Li's case that there was no such agreement and that the oral agreement with Mr Tang provided for the repayment of the entire investment after Quickly Buys (NSW) was sold, with Mr Tang guaranteeing its repayment, must thus be accepted. How did the 2016 written loan agreement come to be entered? 1. This helps explain the conclusions I have reached about Mr Li and Mr Tang's competing evidence about the 2016 written loan agreement. 2. It was on 4 May 2016, before the joint venture with Lesso was agreed, that Mr Li and Mr Tang signed the 2016 loan agreement, to which Mr Tang was not a party, but in which he guaranteed repayment of the loan, consistently with what he had earlier offered and had been agreed. 3. Given his concessions it cannot be accepted that when he signed it, Mr Tang did not understand that the 2016 loan agreement contained that guarantee, as he claimed. 4. Mr Tang was a very experienced businessman. The agreement was a little more than a page long, in relatively simple, but favorable terms in relation to repayment, consistent with it being drafted in accordance with his instructions. As was the fact that it did not name him as a party, despite providing for his guarantee, which he now relies on to resist Mr Li's claims. 5. On Mr Li's account Mr Tang presented him with that document to sign at Quickly Buys (NSW)'s office, when "I had another conversation with Mr Tang about arranging the transfer of $1,000,000.00. As I was speaking with Mr Tang, he had an employee responsible for many of the Business' financial aspects, named Harry, whose last name I do not recall, bring to him a loan agreement between myself and Quickly Buys (NSW) Pty Ltd to loan $400,000.00. At this time, Mr Tang said to me in Cantonese words to the effect: "Here is the document to transfer you the shares for the investment, it is very straight-forward, you can just sign here and it will be enforceable." 1. Mr Tang denied this. On his account, it was Mr Li who produced the document for him to sign, with their discussion being: "Before I signed the May 2016 Loan Agreement, I asked the Plaintiff in Cantonese, words to the effect: Me: What does this document say? The Plaintiff: Don't worry, it just records my Father's investment in your company, and the migration arrangement cannot reflect in the agreement so $400,000 is made as a loan. Me: Ok, I trust your Father. He is a good man". 1. Mr Li denied this. 2. I am satisfied that Mr Tang's evidence again cannot be accepted. His failure to call evidence from Harry supports that conclusion, as do the other problems with his evidence which I have already discussed. 3. Mr Tang also claimed that he never intended the 2016 loan agreement to alter the 2016 business arrangement, which I also do not accept, given his concessions in cross-examination. 4. When the agreement was signed it bound both Mr Li and Quickly Buys (NSW) by its terms, not having been induced by fraud, mistake, or misrepresentation, but rather having been produced by Mr Tang, Quickly Buys (NSW)'s director, for Mr Li's signature: Equuscorp Pty Ltd v Glengallan Investments 218 CLR 471; [2004] HCA 55 at [33]. Was Mr Tang also bound by the 2016 loan agreement? 1. I am satisfied that Mr Tang was also personally bound by this agreement, despite not being named as a party and signing it only for Quickly Buys (NSW). 2. The 2016 loan agreement reflected the guarantee Mr Tang had already agreed under the oral agreement. 3. I also do not accept Mr Tang's evidence that he did not understand the agreement and then asked Mr Li to explain it, before they signed it, when Mr Li produced it, again preferring Mr Li's evidence that it was produced by Mr Tang's accountant Harry for signature, the day the final $800,000 was received. 4. While Mr Tang was not named as a party to the agreement, on his evidence in cross-examination he signed it, understanding that it provided for the guarantee which he there gave. Contrary to Mr Tang's claim that he believed he was signing the agreement as a mere receipt, he also conceded in cross examination that he understood by signing it, that he was bound by it. 5. The meaning of a commercial contract must, however, be determined by reference to what a reasonable businessperson would have understood the terms in question to mean. That requires the language which the parties used, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract, to be considered. The latter is facilitated by an understanding of the genesis of the transaction, the background, the context and the market in which the parties are operating, which I have already discussed: Electricity Generation Corporation v Woodside Energy Ltd at [35]. 6. The guarantee provided: "8 Guarantee: The director of Quickly Buys (NSW) Pty Ltd, Frank Tang guarantees the performance by the borrower under this agreement and indemnifies the lender against any cost or loss whatsoever arising as a result of the default by the borrower in performing its obligations under this agreement for whatever reason. The lender may seek to recover any loss from the guarantor before seeking recovery from the borrower and any settlement or compromise with the lender will not release the guarantor from the obligation to pay any balance that may be owing to the lender." 1. In Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd (1985) 9 ACLR 909 a personal indemnity by the directors of a company was executed in the same way as the main agreement was executed by the company, but it was concluded that the indemnity still bound the directors in their personal capacity. 2. Mahoney JA there considered that this depended firstly on the intention that, as the result of what is done, the document is operative as that of the parties concerned and second, that there is sufficient authentication of the document as theirs, which in that case was satisfied: at [922]. McHugh JA considered this depended on what the parties did and not what they intended to do when they signed the document, with what they did depending on the construction of the document which they signed: at [923]. 3. In Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160 (at 174B-D), applied in Singh v De Castro; Dhaliwal v De Castro; Brar v De Castro [2017] NSWCA 241 at [86], these approaches were considered, Giles JA explaining: "the proper approach is to inquire whether there is to be found an intention that the signatory be personally bound to the contract evidenced in the document, meaning thereby not a subjective intention but an intention to be found objectively, notwithstanding a qualification attached to the signature. That intention, or lack thereof, is to be found upon the construction of the document as a whole, including but not being limited to the qualification attached to the signature, in the light of the surrounding circumstances to the extent to which evidence thereof is permissible. The inquiry is not limited to consideration of the signature and its qualification in order to determine whether or not the signature indicates an assent to be personally bound." 1. It follows that the fact that the 2016 loan agreement did not name Mr Tang as a party, does not preclude the conclusion that it objectively intended that he would be bound by the guarantee contained in the agreement which he had Harry produce for Mr Li's signature, when Mr Tang signed it as "borrower". 2. That was a term which the agreement did not define, but which in its ordinary meaning clearly does not include a guarantor. 3. Still, I am satisfied that the necessary intention to be bound is to be found in the guarantee itself, when considered in light of the circumstances in which the agreement came to be signed and the parties' commercial purposes, which I have already discussed. 4. Consistent with this objective intention Mr Tang in cross-examination also accepted that he understood when he signed it that it was intended to have legal effect and bind him as well as Quickly Buys (NSW), notwithstanding that he was not named as a party and the qualification of his signature as "borrower". 5. That was consistent with the terms of the earlier oral agreement, which I have already explained, under which Mr Tang had already given a guarantee in respect of the entire investment, with how the parties later acted and what was again later agreed. 6. It is also relevant that the difference between the oral agreement and the written loan agreement was when the $400,000 was to be repaid. The written agreement having a term of 2 years, rather than providing for repayment after Quickly Buys (NSW) was sold, as the oral agreement provided. 7. That change was also to Mr Tang's advantage. Consistently with the 2016 oral agreement that was not a term on which he relied, when in 2017 Mr Li sought repayment at a time when he wrongly understood that Quickly Buys (NSW) had been sold to Lesso, but none of the investment had been repaid. Instead, Mr Tang then paid him $40,000, to which I will return. 8. Nothing precluded Mr Li and Mr Tang so documenting a part of their oral agreement, reflecting the structure they had earlier negotiated for Mr Li's investment, or agreeing to vary their oral agreement on a basis more advantageous to Mr Tang and his company. 9. That also supports the conclusion that the necessary objective intention that Mr Tang be personally bound by this agreement is there evidenced, notwithstanding the qualification attached to his signature. The purpose of the $40,000 payment 1. It was in 2017 that Mr Tang paid Mr Li $40,000 at a time when the investment attracted no interest. There is an issue as to what the purpose of this payment was. 2. In their communications Mr Tang never denied his obligation to repay Mr Li's investment. Mr Li's evidence was that Mr Tang offered that the $40,000 be treated as interest, given his delay in making any repayment. Mr Tang denied this. On his case it was the 2018 agreements which first provided for interest, which were entered after Quickly Buys (NSW) had ceased to trade, its shares were worthless and he had offered Mr Li 20% of his shares in Australia Quickly Buys, which he had refused. 3. That the shares Mr Tang offered in Australia Quickly Buys had any value seems questionable, given Mr Tang's evidence about the failure of the joint venture and resulting litigation. Mr Li' s return to China in 2017 because the business was not succeeding explains his rejection of that offer. 4. On Mr Li's evidence, he returned understanding that the takeover of Quickly Buys (NSW) had completed, but he had not been paid and Weiwei's shares had not been acquired, despite what had been agreed. He was thus pursuing repayment of the investment, consistent with Mr Tang's repeated promises and the terms of the 2016 oral agreement, that the investment would be repaid when Quickly Buys (NSW) was sold. 5. On Mr Tang's evidence Quickly Buys (NSW) was in no position to make any payments, but he paid Mr Li $40,000 on behalf of the company, not understanding that he had any obligations to do so, but because he felt sorry for Mr Li's family because the Quickly Buys (NSW) business had not gone well. 6. Again, I am satisfied that Mr Li's evidence that Mr Tang offered to have the $40,000 treated as interest must be preferred. 7. That also seems improbable, given that under neither the 2016 oral agreement nor the 2016 written loan agreement was interest payable on any part of the investment. Yet Mr Tang offering in 2017, without obligation or documentation, to have his payment treated as interest, because of his failure to make any of the repayment he had guaranteed, is no more unlikely than Mr Li making his interest free investment in the way it was agreed that he did. 8. That this was what Mr Tang offered is also supported by the fact that there is no issue that after he returned to China, Mr Li and Mr Tang discussed new terms under which Mr Tang would have longer to repay the investment, but would pay interest if it was not repaid. They then discussed and agreed the terms of the agreements which Mr Li's girlfriend prepared and Mr Li met Mr Tang when he went to Sydney in February 2018, to sign them. 9. I have thus again concluded that Mr Li's evidence about Mr Tang's offer that the $40,000 be treated as interest must be preferred, that also explaining as it does both why neither the 2018 nor the 2019 agreements made any reference to the $40,000 Mr Tang had undoubtedly paid and why he made no complaint about that, when he signed those agreements, understanding what they provided for, as he undoubtedly did. The 2018 agreements 1. I have concluded that Mr Tang is bound by the 2018 agreements. How the 2018 agreements came to be entered 1. Mr Li's evidence was that Mr Tang had represented that Lesso was interested in acquiring Quickly Buys (NSW) for over $5million. In May or June 2016 Harry had told him that Mr Pan was another shareholder who worked mostly in China. In July or August 2016 Mr Tang had said that the sale may not be for as much as $5million, but they should have no problem getting $3million and "don't worry you will still get your money back I promise". Mr Tang also then said that Mr Pan was dealing with Lesso, which had agreed only to $2.4million after seeing the financial documents and later, that most of the money was paid to Mr Pan in China and that Mr Tang had received only $300,000, but "don't worry, I will definitely repay your money". 2. Mr Tang denied these events but no documents or other evidence corroborated his evidence and there is no issue that Mr Li returned to China in 2017, Quickly Buys (NSW) not having become a party to the joint venture, neither it nor its business having been sold and none of his investment having been repaid. They then discussed new terms. 3. While there were also disagreements between Mr Li and Mr Tang about what then occurred and was discussed, there is no issue that Mr Li pursued Mr Tang for repayment of the investment and in their exchanges, Mr Tang did not deny his obligation to repay. Instead he paid the $40,000 I have already discussed and further discussions resulted in the entry of the 2018 agreements in early 2018 when Mr Li was in Sydney. 4. The share purchase agreement correctly identified Weiwei as the owner of the shares and the loan agreement, Mr Li as lender of the $400,000. 5. Mr Li's evidence in cross-examination was that the detail of the 2018 agreements, including the interest rate and the guarantee were discussed over the phone and agreed with Mr Tang, before he returned to Australia for their signature, Mr Tang not making repayments and they thus agreeing to the payment of interest. 6. By then Mr Li understood the difference between the acquisition of the shares and the loan, having had advice. He insisted that he had an appointment with Mr Tang to sign the agreements, but agreed that he had not provided him the written agreements beforehand. Mr Tang read the agreements and they discussed them before signing them in front of a witness who Mr Li did not know and who he thought may have arrived while he had gone upstairs, to print out some documents. 7. Mr Li also denied knowing that Mr Tang didn't understand the agreements or telling him not to worry and to just sign them, as Mr Tang claimed, but he agreed that he knew Mr Tang had not taken legal advice about them. He also denied knowing that the shares were then worthless; that Quickly Buys (NSW) was not trading and Mr Tang was getting nothing for the $600,000 he promised to pay. He agreed that he then thought that Lesso had taken the company over and he was thus seeking repayment of the $1million. 8. Mr Tang's evidence was that Mr Li was uninvited and unexpected when he arrived at his office with the 2018 agreements to sign, interrupting a meeting with a major client and businessman, Mr He, on who he relied for the success of Quickly Buys (NSW) and his other ventures. That was denied by Mr Li and I am satisfied also cannot be accepted. 9. On Mr Tang's evidence by then Quickly Buys (NSW) was not trading and the joint venture company's business had also failed, with resulting dispute and eventually the litigation he initiated. 10. Mr Tang's affidavit evidence that he signed the agreements, feeling embarrassed and pressured by Mr Li after Mr Li told him they were just a receipt; he had nothing to worry about; and they were just to make sure Quickly Buys (NSW) repaid the remaining monies, also cannot be accepted, given the many concessions in cross-examination I have already discussed. 11. In his cross-examination Mr Tang still denied having discussed the 2018 agreements, or having made the appointment to meet Mr Li, but he conceded that at the time that he signed them, he understood what they were and provided for. But he insisted that he had not gone through them properly before he signed them, even though he was capable of doing so. He said that it was his mistake to have decided not to do so. 12. When pressed Mr Tang conceded also understanding what interest was, but claimed that if he had known that the agreements provided for its payment, he would not have signed. But he had not read the agreements, as was his habit. He also agreed that he was capable of reading and understanding the guarantee provided and that he had signed the loan agreement twice, as borrower and guarantor. 13. In further detailed cross-examination, Mr Tang eventually conceded that he could understand what the agreements provided for; that he intended to signify his consent to them, by his signature; that he could have taken time to consider them, but did not do so, claiming that at the time the circumstances were "special". What he meant by this Mr Tang explained in re-examination, namely, that he had been discussing something with Mr He, a key partner of his business. 14. Mr Tang also agreed that after he signed the agreements, he made further payments to Mr Li, roughly $51,600 pursuant to the agreements, Mr Li having sent him reminders about the deadlines which he understood the agreements provided. 15. On all that evidence I am well satisfied that Mr Li's evidence must be accepted. Was Mr Tang bound by the 2018 agreements? 1. I am also satisfied that Mr Tang was bound by these agreements which, contrary to his case, were the result of his negotiations with Mr Li. The loan agreement 1. Even though he was not named as a party, Mr Tang executed the loan agreement twice, once for Quickly Buys (NSW) as borrower and the second time for himself as guarantor. 2. It was conceded in final submissions that at common law, there would be "clear consideration" in terms of the extension of the loan on the one hand and the provision of a guarantee and interest on the other. The extended time for repayment appeared in cl 2 of the loan agreement, which provided: "2. Repayment of loan 2.1 The Borrower shall make full repayment of $400,000.00 to the Lender on or before the 31 May 2018. 2.2 Should the Borrower fail to repay the full amount of $400,000.00 to the Lender on or before the 31 May 2018, the following payment schedule will apply: 2.2.1 On or before the 31 May 2018 the Borrower will make a repayment of $100,000.00 to the Lender; and 2.2.2 On or before the 31 August 2018 the Borrower will make a repayment of $150,000.00 to the Lender; and 2.2.3 On or before the 30 November 2018 the Borrower will make a repayment of $150,000.00 to the Lender." 1. The loan agreement reflected that it was Mr Li who had loaned Quickly Buys (NSW) $400,000 under the 2016 oral agreement, which had earlier been dealt with in the 2016 loan agreement, which provided that the loan was due to be repaid within 2 years. Clause 4 of the 2018 loan agreement provided: "4. Guarantee 4.1 The director of Quickly Buys (NSW) Pty Ltd, Frank Tang (D.O.B. 25 October 1969) with driver's license number XXXXX, of XXXX Bettington Rd Oatlands, NSW, 2117, guarantees the performance by the Borrower under this agreement and indemnifies the Lender against any cost or loss arising as a result of the default by the Borrower in performing its obligations under this Agreement. The Lender may seek to recover any loss from the guarantor before seeking recovery from the Borrower and any settlement of compromise with the Lender will not release the guarantor from the obligation to pay any balance that may be owing to the Lender." 1. Mr Tang accepted that he had provided Mr Li the personal information contained in this clause. 2. Mr Tang was personally bound by this agreement, even though not named as a party, having signed it as he did on his own behalf, as well as for Quickly Buys (NSW). Given this and the terms of the guarantee he gave, there is an even stronger basis for the conclusion that he was also bound by this agreement, for the reasons explained in relation to the 2016 loan agreement. The share purchase agreement 1. Mr Tang was the purchaser of Weiwei's shares under the share purchase agreement which he executed and for which there was clearly also consideration. It provided in cll 1 and 2: "1. Purchase Price 1.1The Buyer promises to pay the amount of six hundred thousand Australian dollars only ($600,000.00 AUD) ("Purchase Price") in consideration for the twenty percent (20%) of shares owned by the Seller in the company Quickly Buys (NSW) Pty Ltd (ACN 605 955 379). 2. Payment Schedule 2.1 The Buyer shall make full payment of $600,000.00 to the Seller on or before the 31 May 2018, the following payment schedule will apply: 2.21 On or before the 31 May 2018 the Buyer will make a payment of $200,000.00 to the Seller; and 2.2.2 On or before the 31 August 2018 the Buyer will make a payment of $200,000.00 to the Seller; and 2.2.3 On or before the 30 November 2018 the Buyer will make a payment of $200,000.00 to the Seller." 1. Clause 3.1 dealt with the sale of the shares, providing: "Upon the terms and subject to the conditions set forth in this Agreement, the Seller hereby sells, assigns, transfers, conveys and delivers to Buyer, and Buyer hereby purchases, acquires and accepts from Seller, free and clear of Encumbrances, all of Seller's right, title and interest in, at the time of Closing, the agreed 20% Shares in consideration for $600,000.00." 1. The case which Mr Tang advanced, that given cl 2.2, cl 2.1 was meaningless cannot be accepted. Clause 2.1 provided for him to pay the agreed amount for the shares on or before 31 May and cl 2.2 a regime for payment in smaller agreed tranches, if the loan was not repaid by that date. It was only in that event that interest became payable. 2. It was not contended that properly construed, under the share purchase agreement Mr Tang did not acquire an equitable interest in Weiwei's shares, but argued that cl 3.1 did not result in a transfer of the shares and that no transfer had later been delivered. On his case, the clause intended that on execution the shares would later be transferred and payment would then follow. There having been no transfer, the purchase price never became payable. 3. Despite the reference in cl 3.1 to the term "Closing", which is not defined, I am satisfied that these submissions cannot be accepted. Quickly Buys (NSW) was not a public company and so in context, logically, the time of transfer provided for in the clause must have been close of business on the day of execution, that being the work which this aspect of cl 3.1 had to do. 4. It follows that the plain words of the clause itself had the result that by the express terms of the agreement, the shares were thereby transferred on execution to Weiwei, without any further steps later being required to be taken. 5. Mr Tang's ownership of the share was thus unaffected by Weiwei's failure later to execute a further formal transfer, the agreement not requiring that one be provided. The fact that such a transfer cannot now be made because both companies have been deregistered, does not alter that result. The deregistration of Quickly Buys (NSW) did not frustrate this agreement, nor did it evidence that at the time the agreement was made, Mr Li was not ready, willing and able to perform. The agreement itself gave effect to the share transfer and he had nothing more to do, to effect its performance. 6. In the result, on execution Mr Tang was bound by his agreement to pay the purchase price on the agreed dates, irrespective of the provision of any other transfer and to pay interest, if he failed to do so. 7. Mr Li's argument that the situation was akin to that dealt with in McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 at 476 in the case of a contract for sale of land which provides for payment on a fixed day, which results in a debt immediately recoverable, irrespective of the question of whether a conveyance has been executed, must be accepted. 8. The provisions of the Corporations Act 2001 (Cth), which restrict the registration of a transfer of shares to circumstances where an instrument of transfer which satisfies specified requirements is delivered to the company, leads to no different outcome: s 1071B. Nor do the provisions of s 1072F, the effect of which was that Weiwei remained the holder of the shares until Mr Tang's name was entered on the register. 9. Had he desired, given the terms of cl 3.1 Mr Tang could have relied on the interest in the shares which he had thereby acquired to obtain such a transfer: Imperial Chemical Industries plc v EchoTasmanis Pty Ltd [2007] FCA 1731 at [124]-[125]. 10. In the result, contrary to the case advanced for Mr Tang, that a formal transfer of the shares was not executed before Quickly Buys (NSW) was deregistered, does not preclude the enforcement of Mr Tang's obligations under the share sale agreement. 11. The position is akin to that which arose in Wenham & Anor b Ella (1972) 127 CLR 454; [1972] HCA 43. There, by the time the proceedings were commenced it had become impossible for shares in a property the subject of the agreement in issue to be transferred, with the result that specific performance could not be ordered but, it was concluded, damages for breach of contract could be awarded. Should the 2018 agreements be set aside? 1. Mr Tang's case that the agreements should be set aside or declared void, rested on the circumstances in which they were entered, and the rates of interest provided in cl 3.1 of the loan agreement and cl 4 of the share purchase agreement. They provided: "3. Interest Rate 3.1 Should the Borrower fail to make payment in accordance with clause 2, interest is payable on all amounts owed by the Borrower to the Lender under this Agreement and the interest is calculated on the daily balance of the Loan under 2% interest per month. 4. Interest Rate 4.1 Should the Buyer be in default of Clause 2 – payment schedule, interest is payable on all amounts owed by the Buyer to Seller under this Agreement and the interest is calculated on the daily balance of the Loan under 2% interest per month." Compound or simple interest? 1. Mr Tang's case was that the reference to the daily balance under the loan in those clauses was a reference to the principle amount in the absence of compounding, interest on interest thus not being provided for, despite interest being payable "on all amounts owed". 2. This submission cannot be accepted. 3. The interest rate clauses both provide for payment of interest of 2% per month "on all amounts owed", not for payment of an annual rate of interest on the principal. That must be reflected in the calculation of interest, as does the requirement that interest be "calculated on the daily balance of the loan", which thus alters daily. The Contracts Review Act claim 1. Mr Tang's case was finally only advanced under s 9 of the Contracts Review Act 1980 (NSW), which empowers the Court to refuse to enforce or declare void a contract found to have been "unjust in the circumstances relating to the contract at the time it was made", if just to do so, "for the purpose of avoiding as far as practicable an unjust consequence or result": s 7. 2. Section 6(2) precludes such orders being made in relation to a contract so far as it was "entered in the course of or for the purpose of a trade, business or profession carried on by the person or proposed to be carried on by the person, other than a farming undertaking". This was considered in Toscano v Holland Securities Pty Limited (1985) 1 NSWLR 145 and Australian Bank Limited v Stokes (1985) 3 NSWLR 174, not to preclude directors who give a guarantee for a business from relying on the section, because it is the company, not they who are carrying on the business. 3. The application of s 6(2) must be "looked at as a matter of substance and not form": Ford bht Watkinson v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42; [2009] NSWCA 186: at [98]. 4. That the exclusion also applies to the share purchase agreement is thus not apparent. Mr Tang acquiring those shares as he did, at a time when he was not only already a shareholder and director of Quickly Buys (NSW), which had not been deregistered, but was storing its remaining assets in his warehouse, establishes that he was carrying on a business and that he acquired the shares at a time when, while the company was not trading, the stock had still to be dealt with, as did his own ongoing commercial dealings with Mr Li. 5. Even if s 6(2) did apply, I am satisfied that Mr Tang did not make out his case under the Contracts Review Act, in relation to either agreement. 6. Section 9(1) provides that in determining whether a contract or one of its provisions is unjust in the circumstances at the time it was made, the Court must have regard to the public interest and "to all the circumstances of the case, including such consequences or results as those arising in the event of compliance or noncompliance". Subsection 9(2) specifies relevant matters to be considered: "(a) whether or not there was any material inequality in bargaining power between the parties to the contract, (b) whether or not prior to or at the time the contract was made its provisions were the subject of negotiation, (c) whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alteration of or to reject any of the provisions of the contract, (d) whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract, (e) whether or not: (i) any party to the contract (other than a corporation) was not reasonably able to protect his or her interests, or (ii) any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party whom he or she represented, because of his or her age or the state of his or her physical or mental capacity, (f) the relative economic circumstances, educational background and literacy of: (i) the parties to the contract (other than a corporation), and (ii) any person who represented any of the parties to the contract." 1. The matters Mr Tang relied on were identified in written submissions to include: "a. Mr Tang's lack of understanding of the agreements, because of: i. Mr Tang's lack of understanding of written English; ii. Mr Tang's lack of legal advice on or explanation of the agreements prior to signing them, and Weiwei's and Mr Li's knowledge of that fact, b. the preparation of the agreements by or on behalf of Mr Li and the lack of negotiation of any of its terms; c. the circumstances relating to Mr Li bringing the agreement to Mr Tang to sign; d. Weiwei and Mr Li taking advantage of Mr Tang's previous willingness to voluntarily pay some money out of goodwill and despite having no legal obligation to do so; e. the excessive interest rate under the agreements (2% per month, or 24% per annum); f. the fact that Quickly Buys NSW was not trading at the time of the agreement and its shares were worthless, and Weiwei's and Mr Li's knowledge of that fact." 1. I am satisfied that these considerations do not establish Mr Tang's case, given the conclusions I have reached on the evidence about his background and business experience; the parties' respective ages and experience; his true command of English; his own views about his superiority to Mr Li, on which he plainly acted; the terms of the earlier agreements under which he had also given guarantees; his prior negotiations with Mr Li about the agreements; his true understanding of what he was agreeing to; his acceptance that he could have refused to sign the agreements and sought advice or to negotiate further; and his failure to establish that Mr Li took any advantage of him, or subjected him to any unfair pressure, when seeking to have the agreement executed. 2. True it is that Quickly Buys (NSW) was not then trading, but that does not make the agreements unfair in the circumstances in which Mr Li and Mr Tang came to enter them, despite Mr Tang not having sought legal advice, as he could have and later did. 3. The interest Mr Tang agreed to pay, if he did not repay the loan and pay for the shares on the dates agreed was certainly high, but the evidence does not establish that was the result of Mr Tang not being in a position to protect his own interests. Rather, it reflected an acceptance that it was untenable any longer for him to continue to have interest free use of Mr Li's investment. 4. The evidence does not establish a proper basis for the conclusion that these agreements were unfair. On Mr Tang's own evidence, he understood what he agreed to when he signed these simple agreements, which were the result of his own negotiations with Mr Li. That there was any inequality in their bargaining power was not established. That he agreed to a high rate of interest, if he did not make the then agreed payments, of itself does not make these agreements unfair. 5. To the contrary, the factual circumstances when the agreement was made were not such as to render the 2018 agreements "unjust", that being defined in s 4 Contracts Review Act to mean, "unconscionable, harsh or oppressive", which must be understood in the way discussed in West v AGC (Advances) Limited (1986) 5 NSLWR 610. This consideration being the first of the two-stage analysis which arises under this legislative scheme: Perpetual Trustee Co Ltd v Khoshoba [2006] NSWCA 41 at [34]. 6. Agreements may also be unjust because of the way in which they operate, substantial injustice: West at [620]-[621]. I will return to the agreed rate of interest, when dealing with the other argument advanced by Mr Tang, that it amounted to a penalty, but am satisfied that this was also not established. 7. While the claim that the agreements were unconscionable was not finally pressed, I am satisfied that these agreements were not unjust, either as made or as they operated. 8. There was no suggestion that Mr Li was in the business of lending money, or that Mr Tang sought to borrow elsewhere at lower rates. But Mr Tang agreed that when he signed the agreements, he still had the opportunity to negotiate further, or to seek advice. His professed embarrassment because of the presence of Mr He when Mr Li arrived to sign the agreements, could not make these agreements unfair. 9. As Allsop P discussed in Provident Capital Ltd v Papa (2013) 84 NSWLR 231; [2013] NSWCA 36 this legislative scheme recognises that "there is a need for the protection of some people in some circumstances, who are not able fully to protect their own interests against factors that may cause injustice. That vulnerability may come from one or more of many circumstances, such as lack of education or of intelligence, from gullibility, from the predation of fraud and greed, and also sometimes from loyalty and love. The characterisation of a contract as unjust and the sheeting home to the other contracting party of the consequences of its unjustness may be a difficult evaluative exercise. At its heart, however, is the recognition of the inadequacy of one party to protect her or his interests in the circumstances": at [7]. 10. Like in that case, here the evidence does not establish that these agreements fell into that category, or that Mr Tang suffered any vulnerability which required that he be protected. 11. Mr Li originally made the $1million investment in 2016 on the basis of the oral agreement, that Quickly Buys (NSW) would pay no interest given its impending sale and Mr Tang's guarantee that it would then be repaid. The evidence does not establish that he sought to take unfair advantage of Mr Tang when the investment was not repaid, after the company was not sold, but instead the joint venture was entered, when it was agreed that Mr Tang would have further time to repay. 12. What they agreed under the 2018 agreements was that Mr Tang would begin paying interest if the investment was still not repaid, albeit at a high rate. 13. On his own evidence Mr Tang still had a real choice about entering these agreements, also each barely over a page in length and dealing as they did with matters of which he had had considerable commercial experience, including the guarantee and which he understood. Such "guarantees from directors being a common transaction in Australian commercial practice", as was his own experience: CIT Credit Pty Ltd v Keable [2006] NSWCA 130 at [42]. 14. The submission that Mr Li had used these agreements as an opportunity to make Mr Tang personally liable for the investment, when he had received no benefit from the contracts, may also not be accepted. Mr Tang had obtained benefits from the investment under his earlier agreements, flowing from his shareholdings in the companies which he owned and controlled. He also stood to benefit from the 2018 agreements. 15. On his evidence, in 2016 Mr Tang was pursuing investments when he had real concerns about the financial viability of Quickly Buys (NSW), contrary to his then representations to Mr Li. That explains why he offered to guarantee repayment of Mr Li's interest free investment, on terms he devised. Mr Tang at relevant times was not only the sole shareholder and director of that company, he was also negotiating the joint venture from which he and his other companies also stood to gain. He intended to repay the investment from what they gained from the joint venture. The 2018 agreements gave him further time to repay, before interest became payable. 16. Nor did Mr Li fail to disclose relevant matters to Mr Tang. If the shares were worthless when the 2018 agreements were entered. That was certainly known to Mr Tang and can only have been the result of the joint venture which he negotiated. 17. What Mr Tang was left with, having negotiated these agreements as he did, understanding that what he was agreeing to by signing them, at a time when on his case he believed the shares he was agreeing to buy were worthless, was his evidence that he had felt pressured to sign the agreements, because of personal embarrassment and other circumstances concerning Mr He's importance to his ongoing business. What that was, was not revealed and also did not establish any basis for the orders sought. 18. That conclusion was reinforced by Mr Tang's evidence about his habit of not reading documents that he signed, which is inconsistent with him being pressured into signing these agreements without reading them. Further, it is long settled that: "In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every-day business transactions." 1. This conclusion of Latham CJ in Wilton v Farnworth (1948) 76 CLR 646 at 649, was applied in Toll (FGCT) Pty Ltd v Alpha Pharm Pty Ltd 79 ALJR 129; [2004] HCA 52, where it was observed at [45]: "[45] It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, as Latham CJ put it, whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it." 1. There was no such request here in these short agreements. But there was Mr Tang's concession in cross-examination that he understood what they provided and signed them understanding that thereby he was indicating that he agreed to be bound by them. That one of them contained a guarantee reflected the guarantees he had earlier given, something else he conceded he had understood at the time. 2. In the result, Mr Tang's claimed feelings of embarrassment and pressure are simply not a proper basis upon which the relief he seeks in relation to these agreements can justly be granted. 3. To the contrary, there is a real public interest in a person such as Mr Tang being held to the bargains which he freely entered, the general policy of the law being that people should honour their contracts, that forming "part of our idea of what is just": Baltic Shipping v Dillon (1991) 22 NSWLR 1 at 9 per Gleeson CJ, applied in Provident Capital Ltd v Naumovski [2013] NSWSC 40 at [297]-[299]. The penalty doctrine The law 1. The interest agreed in the 2018 agreements, on Mr Tang's case fell within the scope of the penalty doctrine discussed in Ringrow Pty Ltd v BP Australia Pty Ltd (2005) 224 CLR 656; [2005] HCA 71: at [11]. There it was observed that the law of penalties, in its standard application is attracted where a contract stipulates that on breach, the contract-breaker will pay an agreed sum which exceeds what can be regarded as a genuine pre-estimate of the damage likely to be caused by the breach at [10]. 2. It was there accepted that the principles discussed in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1914] UKHL 1; [1915] AC 79 at [86]-[87] continue to express the law applicable to the identification, proof and consequences of penalties in contractual stipulations. In Paciocco v Australia and New Zealand Banking Group Limited (2016) 285 CLR 525; [2016] HCA 28 at [33], the "first and principle" of those tests was identified to be that a sum stipulated will be a penalty if it is: "extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach. If the "test" is understood to convey that only loss in the nature of damages directly flowing from the breach is to be considered, then it is unduly restrictive, though no doubt it remains useful to many cases." The parties' cases 1. Mr Tang did not suggest that he had ever sought finance elsewhere to pay what was owed. He did not lead evidence as to the rate at which finance was then available to Quickly Buys (NSW) or him elsewhere. Nor did he lead any expert evidence about such matters. His case rested only on late served Reserve Bank published data. 2. On that data Mr Tang argued that the 24% per annum agreed was "a very high interest rate", out of all proportion to Mr Li's commercial interests in performance of the contracts and could not possibly be a pre-estimate of the loss he suffered in the event of late payment. It was rather extravagant and out of proportion to any loss, so as to amount to a punishment. That, it was submitted for Mr Li, sought to advance arguments based on usury laws which since the early 20th century, have not applied to commercial loans. 3. Mr Tang relied on a table that identified that unsecured loans were available to small business under a variable term agreement at 6.43% and for 3 year fixed at 5.23%. But that this would have applied to Mr Tang was not established. What a "small business" was, was not identified. But it was also submitted to be relevant that even the rates for medium businesses were well below 24%. Further, that the highest rate there specified was for a personal loan at 13%. 4. Mr Li's case was that this overlooked other relevant evidence, including that the standard rate on "personal loans, revolving credit and credit cards" between 2016 and 2019 was between 19.77% and 19.94%. 5. Mr Li submitted that while a relevant indicator of punishment was that the amount specified was out of proportion with the positive interest in the performance of the contact, so that it amounted to a deterrence to breach by threat of punishment, the legitimate interests which had to be taken into account in arriving at that conclusion included intangible and unquantifiable interests, not directly occasioned by the default and too remote to be recoverable at common law: Paciocco at [65] per Kiefel J; [161]-163] and [171]-[172] per Gageler J and [283] per Keane J. 6. But here the rate agreed did not arise to be paid on breach. 7. Further, on the evidence 24% was "barely above" the rate charged by financial institutions on outstanding credit card balances, or on the evidence adduced by Mr Tang, on personal loans and revolving credit of between 19.77% and 19.94%, charged by financial institutions with diversified portfolios of loans over which defaults can be spread, as opposed to an individual like Mr Li, who was not in the business of lending. 8. Mr Li also contended that it was relevant that a rate of 2% per month was dwarfed by the rates considered in other cases, such as 48% and 60% per annum increasing to 96% and 120% in with interest compounding monthly: Kowalczuk, v Accom Finance Pty Ltd (2008) 77 NSWLR 205; [2008] NSWCA 343 7.25% per month increasing to 14.5% on default, also compounding daily, nominally 87% and 174% per annum: Galadriel Lothlorien Pty Ltd v Station 1 Pty Ltd [2008] NSWSC 91 and 4% per month increasing to 8%, or 48% and 96% per annum: Big Kahuna Holdings Pty ltd v Kitas [2012] NSWSC 615. The agreed interest was not a penalty 1. Mr Tang could find no authority in which circumstances analogous to those which arise for consideration in this case, have been considered. That is not surprising, given that the 2018 agreements did not provide for interest payable on breach, but gave Mr Tang even further time to repay the interest free $1million investment he obtained in early 2016, having represented that his company, Quickly Buys (NSW), was financially successful and about to be acquired by Lesso, after which the investment would be repaid, when: * in fact, in 2016 he was concerned that Quickly Buys (NSW) could not meet its debts; * Quickly Buys (NSW) was not sold, but instead he and other of his companies had the benefit of the joint venture which he negotiated with Lesso; * neither he nor Quickly Buys (NSW) repaid Mr Li's investment; and * under the February 2018 agreements he negotiated for interest only to become payable at the rate of 2% per month, if what was due was not paid by the extended dates then agreed. 1. It follows that the interest which became payable under these agreements not flowing from breach of any obligations which they imposed, distinguishes these agreements from those which arose for consideration in the authorities Mr Tang relied on. 2. Even accepting that the principles relied on applied, there was no issue that whether a rate of interest involves a punishment must be determined objectively, in the context of the surrounding circumstances. One was that Mr Li was not in the business of lending. Another that since 2016 Mr Tang had interest free use of his investment. There was no evidence as to what rates lenders such as Mr Li might have loaned money unsecured, to someone in Mr Tang's circumstances. Nor at what rates finance was then available to Quickly Buys (NSW) or Mr Tang from other lenders, about which he could conceivably have given evidence, or about which expert evidence could have been called. 3. In Paciocco it was observed by Kiefel J that the sum stipulated must be "extravagant and unconscionable", before it can be characterised as a penalty: at [33]. Further, that "extravagant", "exorbitant" and "unconscionable" are "strong words" and that despite the different expressions used, they all describe the plainly excessive nature of the stipulation, in comparison with the interest sought to be protected by that stipulation: at [34]. 4. Following Ringrow at [32] it was also observed in Paciocco at [54], that a sum which is merely disproportionate to the loss would not qualify as penal. That is because exceptions from freedom of contract "require good reason to attract judicial intervention to set aside the bargains upon which parties of full capacity have agreed", explaining why the law on penalties is expressed as an exceptional rule and in exceptional language. 5. In the result it was there accepted that late payment impacted on the ANZ's interests in three relevant respects, competing expert evidence having been led about ANZ's costs as the result of the late payments, which was not only concerned with actual losses, but other of its interests, including injuries to its financial position. The appellants had not addressed such damage and so it could not be concluded that the sums in issue were out of all proportion to those interests. 6. Gageler J explained in Paciocco that where the stipulated detriment is in the form of an obligation to pay a specified sum of money in the event of a breach of contract, a comparison of the specified sum with the amount of the unliquidated damages which might be expected to be recovered in an action for breach of contract will often be probative of whether the only purpose of the stipulation is to punish, but that will not always be decisive: at [160]. 7. That is because the innocent party may also have an interest in contractual performance which is intangible and unquantifiable, even if not apparent to the other party at the time of entering into the contract: at [161]-[162]. Thus, the inquiry has to be framed by asking whether the stipulation is properly characterised as having no purpose other than to punish, which compels a more tailored inquiry into the commercial circumstances within which the parties entered into the contract: at [166]. 8. Mr Tang did not attempt such an inquiry. 9. By the late served evidence of his solicitor, Mr Tang did establish by reference to Reserve Bank data that between specified dates, interest rates were available in the market to different sized businesses at rates considerably lower than 24%. But that unsecured borrowings would have been available to Mr Tang in 2018 on $1million, at the rates of interest on which he relied, was not thereby established. 10. It follows that this evidence did not establish that the rate agreed was "extravagant and unconscionable", so that it could be characterised as a penalty. 11. Reliance was also placed on Beil & Anor v Pacific View (Qld) Pty Ltd & Ors [2006] 2 Qd R 499; (2006) QSC 199, where a 16% interest rate which on default became 25% was found to be a penalty, being 9% above what had been agreed to be fit to recompense the plaintiff for use of the money. But the circumstances which arose there are not analogous, because here what the parties had agreed was fit to compensate Mr Li for the continued use of his money if the payments were not made by the agreed dates, was interest at 2% per month. These agreements did not provide for any additional interest on default. 12. It was also argued to be relevant that absent an agreement as to interest, on default interest would have been recoverable under the Civil Procedure Act (NSW) 2005, which then fixed prejudgment interest at 5.5% under the applicable Court Practice note. Given the principles which govern the question of whether interest amounts to a penalty and what was agreed in the 2018 agreements, the relevance of this rate is not apparent. 13. The evidence established that in 2016 Mr Li, a private investor, agreed to make an interest free investment in Mr Tang's company under their oral agreement, with Mr Tang guaranteeing repayment. It was structured in the way Mr Tang devised and the parties later entered the May 2016 loan agreement, which he also produced, on terms which also favoured him. They later negotiated the 2018 agreements, Mr Tang being given further time in which he had interest free use of the investment, after which he agreed he would begin paying interest at a high rate, if it was not repaid. 14. In light of all the evidence I have discussed, I am not satisfied that Mr Tang has established that the interest so agreed involved a penalty; that the agreements were otherwise unjust; or that there is any other basis on which they can be set aside, as he sought. 15. The situation is akin to that discussed in Guardian Mortgages v Miller [2004] NSWSC 1236, where the interest rate, 14.5% per month or 174% per annum reducible to 12% per month or 144% per annum, was much higher, but that of itself was not found to constitute an unconscionable or unjust provision in a commercial loan, not having been the result of unconscionable pressure: at [104]. 16. Likewise in this case there was no unconscionable pressure placed by Mr Li on Mr Tang to enter into the 2018 agreements, by which he agreed to pay interest for the first time, only if he did not make the payments provided for, on the extended dates for repayment. Other claims 1. The other claims initially relied on in the alternative were advanced under the general law, ss 20 or 21 of the Australian Consumer Law (Cth); and ss 12CA and 12CB of the Australian Securities and Investments Commission Act 2001 (Cth). Those claims were finally not pressed, despite having been addressed in written submissions. Had they been, I am satisfied that they would also have had to be rejected. 2. In the circumstances it is not necessary to explain why. The 2019 loan agreement 1. There was no issue that this agreement was prepared by Mr Li's solicitors and signed by both Mr Li and Mr Tang, or that he made no further payments to Mr Li after they entered this agreement. 2. In issue was whether the agreement was valid and enforceable, it being accepted by Mr Li that while agreements can contain acknowledgements, which could constitute prima facie evidence, they cannot dictate the truth of facts known and demonstrated on the evidence. Conclusion 1. In summary I have concluded that the 2019 agreement was not valid or enforceable, with the result that orders in favour of Mr Li must be made in accordance with the 2018 agreements, by which he and Mr Tang remain bound. How the agreement came to be made 1. Mr Li's evidence was that the 2019 agreement came to be negotiated after Mr Tang failed to make payments due in November 2018. In February 2019 Mr Li visited him at his new office and they spoke in the presence of Harry, about his new business and his need for more time to pay. They agreed on a lower interest rate of 1% per month, with interest only payable at 2% on default and a term of 30 years, which Mr Tang not only then again offered to guarantee, but he also offered "I will even give you my property as security". 2. Mr Tang denied this. On his affidavit evidence he advised Mr Li in August 2018 that he could not then repay all of the money, when Mr Li told him that he should at least repay interest, with the result that he paid Mr Li $51,600 in August and September. It was Mr Li who later proposed the 30-year term. 3. Again, Mr Tang claimed that he did not read or understand the agreement which he signed. It was not explained to him by a solicitor; he was shocked to find that it granted the charge and would not have entered the agreement, if he had known of this. Mr Li later promised that it would never be used against him. 4. This was denied by Mr Li, whose evidence I am satisfied must again be preferred. 5. In cross-examination Mr Tang conceded that Mr Li had reminded him about deadlines imposed by the 2018 agreements for the payment of money on WeChat and that they had discussed him being given more time to pay. He then said that his proposal had been that the loan be given for the rest of his life and Mr Li who had responded with an offer of 30 years; that they had negotiated conditions; that he wanted repayment to be limited to $850,000 "because his family didn't suffer that much loss"; that he did not know why he had to sign the 2019 agreement, but signed it not knowing or caring what it said, although understanding the charge he was thereby giving over his home. 6. Contemporaneous documents established that Mr Tang had not only met with the solicitors acting for him, and not Mr Li, on that transaction, but that aspects of the 2019 agreement were negotiated by the parties' legal representatives; a solicitor witnessed Mr Tang's execution, and also executed certificates provided to Mr Li, in relation to the legal advice Mr Tang had been given, directed to the requirements of the National Credit Code. 7. Mr Tang's evidence that he understood these solicitors had also been acting for Mr Li and not him, simply could not be accepted, given this evidence and other contradictory evidence Mr Tang gave in cross-examination. Then he claimed at one point that he understood that the agreement was just a formality, although he had earlier conceded that he understood what a charge was and again, that he had understood that he was then signing a binding legal document. 8. Some of Mr Tang's evidence was revisited in re-examination, with some successful objections. What he then said did not alter the conclusion which I reached, that Mr Tang's evidence about the 2019 agreement simply could not be preferred over that of Mr Li. The 2019 agreement is unenforceable 1. Mr Li's case was that aspects of the 2019 agreement could be enforced and Mr Tang's that the entire agreement was unenforceable. 2. I am satisfied that Mr Li was not entitled to enforce the aspect of the 2019 agreement on which he relied and that the parties remained bound by the 2018 agreements. Mr Li's concessions 1. There was no issue that the 2019 agreement was intended to replace the 2018 agreements. It was prepared by Mr Li's solicitors and was correctly premised on the basis that Mr Li and Mr Tang were already bound by earlier agreements. But it did not accurately reflect their terms, nor even refer to them, let alone provide that they were to be varied or rescinded. 2. Neither Mr Li nor Mr Tang gave evidence about the instructions they had given their solicitors, which resulted in the 2019 agreement not accurately reflecting their prior dealings. 3. It was also not in issue that Mr Li and Mr Tang were not in a position to alter what Mr Tang had agreed with Weiwei under the 2018 share purchase agreement, Weiwei not being a party to the 2019 agreement and it not purporting to vary or rescind the 2018 share purchase agreement. 4. Mr Li thus conceded that at best the 2019 agreement could operate only as a variation of the 2018 loan agreement, the charge thus securing repayment only of $400,000. He also accepted that if the 2019 agreement was found to be valid, notwithstanding the legal position, interest should be capped on both debts for the duration of that agreement. If it was not valid, interest would have to be calculated in accordance with the 2018 agreements. 5. It was cl 3.2 which Mr Li relied on to argue that despite the difficulty, the 2019 agreement remained enforceable. It provides: "3.2 The Borrower must pay to the Lender, upon discharge or other termination of the Loan, the Loan Discharge Fee in addition to any amount of the Principal Sum and interest as is then outstanding and unpaid." 1. The agreement did not provide for a loan discharge fee but, it was submitted, under cl 3.2 on termination what Mr Tang was obliged to pay was the outstanding principal sum of $400,000 the subject of the 2018 loan agreement, with interest calculated in accordance with cl 4 of the 2019 agreement and subject to the charge he had there given. It was properly conceded, however, that there were difficulties in so construing the agreement. 2. They seem to me to be insurmountable, with the result that the agreement is not binding or enforceable. The 2019 agreement could not deliver what Mr Tang had bargained for 1. That is because Mr Li's approach does not pay necessary regard to the schedule to the 2019 agreement, which specifies the principal sum to be $1million, or to cl 4. It deals with repayment of the entire $1million and interest, which is to be calculated in accordance with the acknowledgement given in cl 4.3, that monthly interest on that sum has been already paid to the date of the agreement, albeit at the rate it provides, 1% per month. 2. The 2019 agreement was premised on: 1. Mr Tang acknowledging that he had received the "principal sum" of $1million on the "drawdown date", specified to be "early June 2016", even though it was Quickly Buys (NSW) which had then received the money, which Mr Li conceded was not a correct legal characterisation of what had occurred; 2. the term of the loan being for 30 years from the draw down date; 3. interest being payable on the entire amount at 1% per month and on default, 2%, from the drawdown date; 4. Mr Li acknowledging that monthly interest had already been paid up to the date of the agreement; and 5. Mr Tang giving a charge over the property. 1. The 2019 agreement did not reflect that under the 2018 share purchase agreement Weiwei had already sold its shares to Mr Tang for $600,000. Weiwei was not a party to the 2019 agreement and had not yet assigned its interest in the 2018 share purchase agreement to Mr Li. The 2019 agreement could thus not deal with the $600,000 Mr Tang owed Weiwei, or the interest which he owed it under the 2018 share purchase agreement, as the parties accepted it purported to do. 2. It follows that the 2019 also agreement proceeded on a common and material mistake, that Mr Li and Mr Tang could deal with the entire $1million investment and all the interest which he owed. They could not. The result was that Mr Li could not deliver to Mr Tang what he had bargained for, in return for giving the charge. 3. Mr Tang thus did not obtain the benefits it was agreed he would receive under the 2019 agreement, in return for giving the charge. Namely, time to repay the entire $1million over 30 years, at a lower primary interest rate of 1% per month in future, than had been agreed under the 2018 agreements, together with an acceptance that all of the interest which he already owed, had been paid up to the date the 2019 agreement was entered. 4. Contrary to Mr Li's case, the charge provided by the 2019 agreement thus cannot justly be enforced against Mr Tang. 5. Had Weiwei's later assignment to Mr Li under the deed of assignment occurred before the 2019 agreement, the result could well have been different, but that does not need to be resolved. The charge 1. The validity of the charge, even if the 2019 agreement was otherwise valid, was also in issue. It was common ground that the only charge Mr Tang could give was over his aliquot share of the property. Clause 6.1 provided: "The Borrower warrants that the Borrower has the legal and beneficial title to the Property subject only to the notifications disclosed on the certificate of title and has full power to enter into and perform its obligations under this Agreement and that the Property is not subject to any other security or any right of restriction." 1. The effect of cl 6.1 is that the charge was only given in relation to Mr Tang's interest in the property. Ms Guan's interest being disclosed on the certificate of title as it was and NAB's registered mortgage not affecting the charge which he gave, cl 6.1 was effective. 2. It thus cannot be concluded that the charge was invalid, given as it was only in respect of Mr Tang's interest in the property, his aliquot share. The charge did no more than that, even though, if it came to be enforced after default, that could have had an impact on Ms Guan, if orders of the kind sought here were made in accordance with the charge Mr Tang gave. The other claims 1. The Contracts Review Act and unconscionability cases advanced in relation to the 2019 agreement were also abandoned. 2. Had they not been, for similar reasons to those given in relation to the 2018 agreements, they could also not have been accepted. But it is now unnecessary to explain why. Repudiation 1. There was also an issue as to what Mr Li would be entitled to, if the 2019 agreement was valid, given Mr Tang's default, he having failed to pay any interest and on Mr Li's case, having repudiated this agreement in 2020 by the advice then given by his solicitors, a repudiation which he accepted.. 2. I am satisfied that by the advice Mr Tang's solicitors gave that he repudiated the 2019 agreement and Mr Li accepted that repudiation, that bringing the agreement to an end and that entitling him to bring these proceedings to recover what he was owed under the agreement, up to the date of its termination. 3. Whether that affected Mr Li's rights under the charge and whether it survived the termination of the agreement, to secure repayment of what Mr Tang owed under the agreement was also in issue. That depends on the intentions of the parties, by the charge given. 4. That it was not intended that the charge would not survive a termination was established by the terms of the 2019 agreement, entered in the circumstances I have discussed. Otherwise, Mr Tang's repudiation would effectively have relieved him of the charge he had given in return for the considerably more generous terms which he thereby secured. That was clearly not intended. 5. Like the case of charges in building contracts which have been found still to secure payment of progress payments which became due prior to termination, after termination of the 2019 agreement in this case, the charge securing as it did payment of both principal and interest payable monthly, after termination it still secured both the $1million, as well as the unpaid interest due up to the date of termination: McCosker v Lovett (1995) 7 BPR 14,507; (1995) 12 BCL 146 at 14.510, followed in Danthanarayana v GR8 Constructions Pty Ltd (2012) 201 FCR 347; [2012] FCA 231, as explained at [46]-[52]. 6. Orders in accordance with cl 8 of the 2019 agreement, which envisages Mr Li taking possession, selling the property and applying the proceeds "towards satisfaction of any amount owing from time to time" under the agreement, which includes outstanding interest calculated in accordance with cl 4, could then be made: cll 8 (c) and (d). 7. Any surplus from the sale, calculated in accordance with all of the other provisions of cl 8, which also contemplate for example, the appointment of a receiver, would be repaid to Mr Tang, without interest: cl 8(e). Ms Guan's interest in the property did not make the charge unenforceable 1. Mr Li correctly accepted that the charge given by the 2019 agreement could only confer a right to payment of the debt, to the extent of Mr Tang's interest in the property, as Ward CJ in Eq discussed in Morris Finance at [29]. 2. If I am wrong in the conclusions which I have reached in relation to the enforcement of the 2019 agreement, I would have concluded that Ms Guan's case that the charge given by cl 9.1 of the 2019 agreement could not be enforced, could not be accepted. Orders of the type made by Ward CJ in Eq in Morris Finance Ltd v Free [2017] NSWSC 1417 for judicial sale of the property, which would also reflect her interest in the property, as well as that of NAB, could thus have been made. 3. It was contended that the property being owned by Ms Guan and Mr Tang as joint tenants; the 2019 agreement not specifying that the charge was given only over his aliquot share; Mr Tang having wrongly warranted that he had beneficial and legal title to the property; and Ms Guan not being aware of the charge which Mr Tang had given over the family home, it could not be enforced, even on application to this Court for an order for sale. 4. I am satisfied this could not be accepted, given the terms of the charge and the evidence. 5. Mr Tang's evidence that he did not intend to give the charge cannot be accepted, as I have explained. 6. But Mr Tang was not involved in any wrongdoing when he gave the charge, given his interest in the property and what he agreed with Mr Li. He was legally advised about that charge, which is expressed to be given over the whole of the property, as McDougall J explained was necessary in Awadallah v Hymix Australia Pty Ltd (2015) 17 BPR 33,953; [2015] NSWSC 117 at [47]-[48. 7. It was accepted that the cases relied on to support Ms Guan's case were not squarely on foot, concerned as they were with the consequence of forgeries of signatures and where one co-owner purported to deal with the land on behalf of both, for example in RAMS Mortgage Corporation Ltd v Skipworth (2007) 239 ALR 799; [2007] WASC 24 at [29]. 8. True it is that the Court has a discretion as to whether a sale should be ordered and undoubtedly Ms Guan's interest in the matrimonial property would have to be taken into account, in determining whether to exercise that discretion and on what terms. But her interest as a joint tenant is not of a kind which alone could preclude an order for sale, there having been no wrongdoing on the part of either Mr Li nor Mr Tang involved in the giving of the charge, contrary to situations involving the forgery of signatures on mortgage documents. 9. While there is ample authority that a document purporting to give a mortgage over the whole of a property owned by joint tenants which is the result of a forgery of the signature of one of the joint tenants, is null and void. But Ms Guan's situation is not analogous, with the result, I am satisfied that a sale could have been ordered. 10. It may be accepted that had she known of Mr Tang's intention to give the charge, Ms Guan would have objected, but it does not follow that the result would have been that the charge would not have been given. That was Mr Tang's right, given his interest in the property and he having an obvious interest in agreeing to terms which gave him 30 years to repay Mr Li's investment, at half the interest rate he had earlier agreed. 11. It follows that Ms Guan's interest in the property could not make the charge unenforceable. Valuation and the discretion to order a sale 1. What was discussed in King Investment Solutions v Hussain 64 NSWLR 441; [2005] NSWSC 1076, where there was no evidence of valuation, would also not have precluded an order for judicial sale in this case. 2. Here there is evidence about the value of the property, Mr Tang agreeing in cross-examination that when the NAB loan was refinanced 2 years ago it had a valuation of $1.7million and its mortgage being in respect of a loan of $1.4million. It was not suggested that interest on that loan had not been paid. That evidence would thus be a sufficient basis upon which a reserve price could be fixed although, of course the parties could agree a reserve. 3. Contrary to the case advanced on the evidence about valuation, it would thus seem to be unlikely that after NAB was paid out, nothing would be left to apply to Mr Li's debt. 4. Each of their half share in the remaining equity appeared 2 years ago to have been worth some $150,000. That would not be an obvious basis on which the Court would refrain from ordering a sale, notwithstanding the absence of current valuation, which could of course be higher. 5. Ms Guan also advanced no case in relation to hardship, which could have raised other relevant considerations, if they were available. 6. It follows that appropriate orders reflecting the interests in the property of Mr Tang, Ms Guan and the NAB, as well as the usual incidents of a sale, such as vacant possession, could have been ordered in terms of the kind ordered in Morris Finance. Interest and orders 1. The usual costs order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event, which in this case is an order that Mr Tang must bear Mr Li's costs, as agreed or assessed. 2. Unless the parties' approach to be heard within 7 days on costs, that will be the Court's order. 3. The parties should calculate interest and file orders which reflect these conclusions, including as to costs, within 14 days. Orders 1. For the reasons given judgment will be entered for Mr Li, with final orders reserved. ********** Amendments 23 August 2021 - Para 226 can changed to cannot DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2021