District Court New South Wales Medium Neutral Citation: Huang v Muse Beauty Salon Waterloo Pty Ltd (No 4); Muse Beauty Salon Waterloo Pty Ltd v Huang (No 4) [2022] NSWDC 106 Hearing dates: 7-11 June 2021; 15-16 June 2021; 24-25 June 2021; 28 June 2021-2 July 2021; 27-28 July 2021; 5-8 October 2021; 11-13 October 2021; 18-22 October 2021; 17 December 2021 (written submissions); 13 January 2022 (written submissions); 10 February 2022 (oral submissions) Date of orders: 7 April 2022 Decision date: 07 April 2022 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) In matter 2018/00117938, judgment for the plaintiff against the defendants. (2) The parties are to bring in proposed short minutes of order within 7 days consistent with these reasons. (3) In matter 2018/00117938, the defendants are to pay the plaintiff's costs of the proceedings as agreed or assessed. (4) In matter 2018/00364820, judgment for the defendants against the plaintiffs. (5) The parties are to bring in proposed short minutes of order within 7 days consistent with these reasons. (6) In matter 2018/00364820, the plaintiffs are to pay the defendants' costs of the proceedings as agreed or assessed. (7) Liberty in both matters for the parties to apply for a costs order different to that in (3) and (6) above. Catchwords: CONTRACT – whether a binding agreement was entered into between the parties in relation to an investment for the acquisition of shares in a company – whether moneys paid by a party constituted refundable deposits or part payments pursuant to a binding contract – whether party entitled to repayment of moneys said to be deposits – whether, if binding contract found, there was an anticipatory breach entitling damages – Masters v Cameron TORTS – injurious falsehood – whether elements satisfied – whether loss as alleged proved - causation CONSUMER PROTECTION – whether misleading or deceptive conduct in relation to business investment Legislation Cited: Australian Consumer Law Australian Securities and Investment Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth) Fair Trading Act 1987 (NSW) Cases Cited: A v B [2021] NSWDC 491 ANZ Banking Group Ltd v Westpac Banking Corporation [1988] HCA 17; (1988) 164 CLR 662 ANZ Banking Group v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 253 CLR 560 Barton v Armstrong [1973] 2 NSWLR 598 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 Braam v BBC Hardware Ltd [2020] VSCA 164 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Chalik v Wales [2005] NSWSC 877 Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Dickinson v Chapman [2022] NSWCA 2 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 Mentink v Olsen [2020] NSWCA 182 Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2018] NSWCA 342 Moffatt Property Development Group Pty Ltd v Hebron Park Pty Ltd [2019] QCA 60 Newell v De Costi [2018] NSWCA 49 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Robinson v Robinson [2020] NSWCA 4 Saravinovska v Saravinoski (No 6) [2016] NSWSC 964 Stubbings v Jams 2 Pty Ltd [2022] HCA 6 Yangdo Pty Ltd v Equiti Group Pty Ltd [2017] NSWDC 277 Category: Principal judgment Parties: 2018/00117938 Yi-Ching Huang (Plaintiff) Muse Beauty Salon Waterloo Pty Ltd (First Defendant) Kailing Xie (Second Defendant) Yuling Bai (Third Defendant) 2018/00364820 Muse Beauty Salon Waterloo Pty Ltd (First Plaintiff) Kailing Xie (Second Plaintiff) Yuling Bai (Third Plaintiff) The Muse Beauty Salon Pty Ltd (Fourth Plaintiff) Yi-Ching Huang (First Defendant) Yu Mun Nam (Second Defendant) Representation: Counsel: 2018/00117938 F Santisi (Plaintiff) G Campbell (Defendants) 2018/00364820) G Campbell (Plaintiffs) F Santisi (Defendants) Solicitors: 2018/00117938 Goh Lawyers (Plaintiff) W B Legal (Defendants) 2018/00364820 W B Legal (Plaintiffs) Goh Lawyers (Defendants) File Number(s): 2018/00117938 2018/00364820 Publication restriction: No Judgment 1. These reasons for decision relate to two proceedings before the court for final hearing and determination. The proceedings together, in general summary, relate to the alleged acquisition of a shareholding in Muse Beauty Salon Waterloo Pty Ltd ("Muse Waterloo"). In one proceeding, Ms Yi-Ching Huang ("Ms Huang") sues Muse Waterloo and two individuals, Ms Yuling Bai ("Ms Bai") and Ms Kailing Xie ("Ms Xie"), for money paid and damages relying on various causes of action including for money had and received in restitution, for misleading or deceptive conduct and for unconscionability/estoppel. Any liability is denied. In the second set of proceedings, The Muse Beauty Salon Pty Ltd ("Muse City"), Muse Waterloo, Ms Bai and Ms Xie sue Ms Huang and her husband Mr Yew Mun Nam ("Mr Nam") for damages for alleged breach of contract by not paying an alleged third instalment in the sum of $70,000 under a contract which included the purchase of 25 shares in Muse Waterloo, as well as for damages for the tort of injurious falsehood. Other damages for breach of contract are also sought. Muse City and Muse Waterloo operated at various times beauty salons in Sydney. 2. The proceedings involved the parties reading and relying on voluminous affidavit evidence with extensive annexures and exhibits. In addition, there was very extensive oral evidence and cross-examination of the witnesses. Very few factual matters were agreed between the parties. Almost every meeting and telephone conversation was disputed in whole or in part. Affidavits responded in detail to factual assertions by the other parties. The court was therefore placed in the position of having to decide between substantially different and inconsistent versions of the facts. 3. Evidence was also given by one other witness who was involved in relation to the affairs of Muse Waterloo and Muse City, Ms Lo. Her evidence, where relevant, in substance supports the evidence of Ms Huang and Mr Nam and is contrary on certain issues to the evidence of Ms Xie and Ms Bai. 4. The proceedings were very lengthy and hard fought. The length of the final hearing was highly regrettable having regard to the amount of money in issue between the parties. This factor was raised with the parties on a number of occasions by the court. The pleadings Proceedings 2018/117938 1. Ms Huang commenced proceedings in the Local Court of New South Wales by filing a Statement of Claim on 13 April 2018. The proceedings are brought against Muse Waterloo, Ms Xie and Ms Bai. The Statement of Claim seeks the recovery of $68,000 together with interest. Causes of action are pleaded in restitution for money had and received, for misleading or deceptive conduct and for unconscionable conduct under the Australian Consumer Law. Damages are also sought under s 236 of the Australian Consumer Law. 2. In summary, it is pleaded that Ms Huang paid over $68,000 at the request of Ms Bai and Ms Xie by themselves and on behalf of Muse Waterloo as refundable deposits pending due diligence being conducted by Ms Huang. It is said that various representations were made in relation to the existing business conducted by Muse City and as to intellectual software used by that company which was proposed to be shared for a new business to be conducted by Muse Waterloo. It is also pleaded that representations were made by Ms Bai and Ms Xie as to the profitability of the Muse City store and its customer base. 3. It is pleaded that following Ms Huang not being satisfied in her observations of the Muse City store and by the failure to provide access to the promised intellectual property, she decided not to proceed with negotiations for the acquisition of a 20% shareholding in Muse Waterloo for the sum of $138,000. She sought the recovery in the Statement of Claim of the sum paid of $68,000 which was said to be a refundable deposit and, in the alternative, sought damages under the Australian Consumer Law. Important conferences were alleged to have occurred between the parties on 9 December 2017, 24 December 2017, 15 January 2018, 20 January 2018 and 28 January 2018. It is pleaded that on 29 January 2018, given the inability of the parties to reach an agreement, a refund of the $68,000 was sought by Ms Huang of the defendants by way of a "solicitor's letter". On the evidence, this seems to be incorrect as the letter seeking the refund was an email letter sent by Mr Nam, Ms Huang's husband. Alternative causes of action for misleading or deceptive conduct and unconscionability are pleaded. There is some suggestion of a claim in estoppel but it is not clearly pleaded. 4. In a Defence filed on 14 September 2018, the defendants deny liability and say that a final agreement was reached to pay $138,000 in consideration for 20% of the shares in Muse Waterloo with Ms Huang agreeing to be employed by Muse Waterloo as its store manager on a weekly salary. It is said that the $68,000 was paid as part payments of the purchase price of $138,000. It is pleaded that the agreement was reached on 24 December 2018 and, with a slight variation, was confirmed on 15 January 2018. It is pleaded that the plaintiff sought not to proceed with the agreement because she was pregnant and her husband did not wish her to work whilst pregnant. No evidence was placed before the court that Ms Huang was actually pregnant at this time. The representations alleged by Ms Huang were denied. 5. By an Amended Defence filed with leave on 11 June 2021, the defendants deny any unjust enrichment and plead that they have changed their position by paying for the fit-out to the Muse Waterloo store partly with the $68,000 paid to them by the plaintiffs: see paragraph 25. Proceedings 2018/364820 1. By a Further Amended Statement of Claim filed on 17 July 2020, Muse Waterloo, Muse City, Ms Xie and Ms Bai sue Ms Huang and Mr Nam for damages for breach of the contract which they say was entered into by the parties on 24 December 2017 and confirmed following a variation on 15 January 2018. It is pleaded that the payment of $68,000 was in part performance of the contract. The plaintiffs sue Ms Huang and Mr Nam for breach of contract and seek to recover the outstanding $70,000 together with interest. It is pleaded that a 20% shareholding in Muse Waterloo was acknowledged and registered. 2. In addition, the plaintiffs sue in the tort of injurious falsehood for damages said to have resulted from alleged malicious statements made by Ms Huang about the business of the plaintiffs. It is pleaded that substantial losses were incurred as a result of the statements: see paragraph 28. 3. In an Amended Defence filed on 14 September 2020, Ms Huang and Mr Nam deny that there was any breach of contract, refer to their pleading in the other proceedings that there was no binding contract and deny the claim for damages for the tort of injurious falsehood. 4. In opening, counsel for the Xie interests, Mr G Campbell, stated that it would be submitted that the tort of injurious falsehood was established even if the factual version propounded by Ms Huang of the negotiations concerning the contractual claim was accepted. Counsel for Ms Huang and Mr Nam, Mr F Santisi, submitted that there was no tort of injurious falsehood but even if malicious statements were established, there was no satisfactory evidence that any losses had been sustained as a result of any statements which could be attributed to Ms Huang. The parties' names 1. The various parties in the proceedings and a number of persons referred to in their affidavit evidence are persons of Chinese heritage. One party lives in China. In the following table is set out the names of the parties and various persons who will be referred to. Where relevant, the Anglicised names by which the persons are or were also known are referred to. Chinese name Anglicised name Position Yi-Ching Huang Jessie Wife of Mr Nam. Person who had most dealings with Ms Xie and Ms Bai Yew Mun Nam Husband of Ms Huang. Attended a number of significant meetings with Ms Huang and Ms Xie or Ms Huang, Ms Xie and Ms Bai. Wanqing Liu Cindy Investor in Muse Waterloo and Muse City. Became friendly with Ms Bai. Yuk Yee Lo Kitty Beautician who worked in the stores at Muse City and Muse Waterloo. Was alleged to have given training to Ms Huang at the Muse City store in January 2018. Kailing Xie Coco Party to the proceedings and person who had most dealings with Ms Huang. Yuling Bai Party to the proceedings and business partner of Ms Xie. She attended a number of important meetings. Elaine Wang Elaine Friend of both Ms Huang and Ms Xie who introduced them. Background facts 1. As stated above, most of the facts in this case are strongly disputed. On many issues, there are diametrically opposed versions, particularly of relevant meetings and conversations. The proper meaning and relevance of many documents, including WeChat exchanges, are also disputed. However, on the affidavit evidence and the documentary evidence, some background facts may be stated. Unless indicated to the contrary, what follow are the court's general findings of fact in the matter. 2. In early 2015, Ms Xie and Ms Bai who were friends and who came to Australia from China to study at universities in Sydney, opened a beauty studio in Zetland in Sydney. Both had undertaken short beautician courses in China but had no equivalent formal qualifications in Australia. 3. Ms Huang and her husband had an online business importing South Korean made beauty products for customers in Australia. Mr Nam, Ms Huang's husband, was also an accountant. 4. The evidence establishes that Ms Xie ordered beauty products from Ms Huang who was one of her suppliers for both personal and probably commercial use. It is claimed by Ms Xie that Ms Huang delivered the products to the Zetland studio and later to the Muse City store. Ms Huang states that the products were delivered by her husband, Mr Nam, but not to the Muse City store but only to the Zetland store. In a later affidavit, Ms Xie states that the products were delivered by either Ms Huang or Mr Nam: Exhibit A page 391 paragraph 30(c). Mr Nam said in his oral evidence that he did deliver products to Ms Xie in Pitt Street in Sydney on a few occasions. In the light of the altered evidence of Ms Xie, the oral evidence of Mr Nam and having assessed the witnesses on this issue and considered the evidence, I accept the evidence of Ms Huang and Mr Nam that the products were delivered by Mr Nam. Having regard to the evidence that the Muse City store was opened in about April 2017, and Mr Nam's oral evidence, I think it likely that Mr Nam delivered some beauty products to that store after its opening, during 2017, on several occasions. 5. On 22 November 2016, The Muse Beauty Salon Pty Ltd was registered as a company. There were at the relevant time, 100 recorded shares in the company with Ms Xie holding 51 shares and Ms Bai holding 49 shares. In April 2017, Muse City started operating a beauty salon in Pitt Street in Sydney. The store provided beautician services to clients. As stated above, Ms Huang provided Korean beauty products as one of the suppliers to Ms Xie at Muse City. 6. There was differing evidence about how Ms Xie became aware of Ms Huang and her business. It seems that they had a common friend, Ms Elaine Wang. Initially, Ms Wang had ordered beauty products from Ms Huang and then that role was taken over by Ms Xie. Ms Xie claims it was in 2015 and Ms Huang claims it was in 2016 but the difference is not significant in the proceedings. 7. There is also a difference in the evidence of Ms Huang and Ms Xie about when they had the initial conversation relating to the possibility of Ms Xie opening a new beauty salon. Ms Xie places the first conversation in August 2017 when she states that Ms Huang indicated that she wished to join Muse City to help in the shop and also raised the possibility of opening another shop in relation to which Ms Huang wished to invest and manage the shop: Exhibit A page 249, paragraph 11. Ms Huang places the first conversation on 25 November 2017. She states that she told Ms Xie that she was interested in opening a new salon herself after she attended a beauty therapy course in South Korea in early 2018: Exhibit A page 105, paragraph 10. 8. The date suggested for the initial conversation by Ms Huang is problematic. She claims the conversation occurred on 25 November 2017 but she relates that Ms Xie stated that she and Ms Bai owned Muse Beauty Salon Waterloo Pty Ltd: Exhibit A page 105, paragraph 10. However, that company was first registered as a company on 28 November 2017, three days later, with the application for registration as a proprietary company also being received on 28 November 2017: Exhibit A page 91. Accordingly, if Ms Huang's account is to be accepted, it is likely that a conversation occurred (whether in person or by way of WeChat) a little later following the registration of Muse Waterloo. I will consider further below which version of the disputed account relating to contractual negotiations is to be preferred. Ms Xie denied the contents of Ms Huang's version of the alleged 25 November 2017 conversation but did not dispute that a conversation occurred on that day: Exhibit A page 389, paragraph 17. In cross-examination, Ms Huang appeared to accept that the conversation set out in her first affidavit said to have occurred on 25 November 2017 did not occur in the terms set out but was much shorter. I consider that more likely and that detailed discussions between Ms Xie and Ms Huang did not occur until December 2017. Ms Xie also states that detailed conversations did not occur until December 2017. A WeChat exchange on 4 December 2017 between Ms Huang and Ms Xie establishes to my satisfaction that at that time Ms Huang wished to open her own shop when she returned from a trip to South Korea but Ms Xie was seeking to persuade her to join in opening "a new shop in Waterloo". The WeChat exchange suggested earlier conversations between them had occurred: Exhibit A page 119. Thus, contrary to Ms Xie's evidence (Exhibit A page 249, paragraphs 11-14), Ms Xie was seeking to persuade Ms Huang to join her in a new shop rather than Ms Huang seeking to be involved at that time. 9. Earlier, in mid-2017, Ms Cindy Liu had become a client of Muse City and attended its store for beauty treatments. She was known to Ms Bai. At about this time, Ms Xie had attended massage therapy treatments undertaken for her by a Ms Kitty Lo at another store in the city of Sydney. In due course, Ms Xie persuaded Ms Lo to commence working at the Muse City store. Ms Lo was a qualified beautician with an Australian qualification. Ms Lo also entered into contracts with Muse City, Ms Xie and Ms Bai on 29 November 2017 to be issued shares in Muse City: Exhibit 3. The precise circumstances in which these contracts were entered by Ms Lo will be considered further below. 10. In late 2017, probably between August 2017 and November 2017, Ms Qiqi Li was interested in the beauty business of Ms Bai and Ms Xie. She was interested in opening a new shop with Ms Xie and Ms Bai. I accept the evidence of Ms Xie and Ms Bai that Ms Li existed and was willing in December 2017 to pay $180,000 for 20% of the shares in the new company which became Muse Waterloo. However, it appears that she wished to be a silent investor only. 11. At about this time (late 2017), having regard to the limitations in the size of the shop at Muse City in the city of Sydney, Ms Xie and Ms Bai were looking for a suitable larger site for a new shop. I accept that Ms Bai located what she regarded as a suitable site in Waterloo. Eventually steps were taken in relation to planning for the fit-out of a shop at the site. A lease was entered into by Muse Waterloo for the Waterloo shop site on 8 December 2017: Exhibit 1. This date later became of some importance in the proceedings. The commencement date of the lease was 18 January 2018. Clearly a shop at Waterloo was proposed by Ms Xie and Ms Bai sometime prior to 8 December 2017: see Exhibit A page 119. 12. In late 2017, Ms Bai had discussions with Ms Cindy Liu in relation to the intention of Ms Bai and Ms Xie to open another beauty shop in Waterloo. At some stage, it is clear that Ms Liu showed an interest in investing in the new company. There is a difference in the evidence whether this was in December 2017 or January 2018 but the difference is not significant. In due course, Ms Liu signed agreements to purchase shares from Ms Xie and Ms Bai in both Muse City and Muse Waterloo. 13. On 9 December 2017, Ms Xie met with Ms Huang and her husband Mr Nam together with Ms Huang's small child at Zilver Restaurant in Haymarket. Initially, Ms Huang said that Ms Bai was also present at this meeting and was introduced as Ms Xie's mother. Later, Ms Huang states in an affidavit that Ms Bai was not at this meeting. Mr Nam in his oral evidence confirmed that Ms Bai was not present at the meeting. I find that Ms Bai was not at the meeting. I also think it highly unlikely that Ms Bai was introduced as Ms Xie's mother at any stage having regard to her age. However, in her oral evidence Ms Xie conceded that her actual mother was also present at the meeting and was introduced to Ms Huang and Ms Nam as her mother. This was not mentioned in Ms Xie's affidavit evidence. 14. What was discussed at the meeting is disputed. This will be considered further below. It seems to be clear that the Xie interests do not submit that any contract was entered into at this meeting. 15. On 24 December 2017, Ms Xie, Ms Bai, Ms Huang and Mr Nam met at a cafe in Chatswood to discuss the new shop to be opened by Muse Waterloo. The child of Ms Huang and Mr Nam was also present. What occurred at this meeting is strongly disputed and will be considered further below. The Huang interests claim in summary that a price for 20% of the shares of Muse Waterloo in the sum of $138,000 was agreed at this meeting subject to a due diligence and the Huang interests being happy with a contract relating to the acquisition of the shares. It is said that the sum of $138,000 was agreed following a counter-offer being made by Ms Huang to the initial share price of $180,000. The Xie interests claim no price was agreed at the meeting itself. 16. During or immediately following this meeting, Ms Huang transferred the sum of $8,000 into a Westpac bank account nominated by Ms Xie in the name of Ms Xie's mother. The description of the transfer on the receipt was "Shop 2 Deposit": Exhibit A page 64. As stated above, there is an issue between the parties as to whether the transfer of the money was a transfer of an agreed refundable deposit or was a part payment for the purchase of 20% of the shares in Muse Waterloo by Ms Huang (whether placed in her name or in the name of Mr Nam). Ms Huang states in her evidence that it was agreed that the $8,000 would be a refundable deposit depending on whether Ms Huang and Mr Nam went ahead with the transaction: Exhibit A page 56, paragraph 19. Mr Nam confirms this. Ms Bai and Ms Xie claim the transfer was eventually treated as a part payment of the purchase price of $138,000 pursuant to a binding agreement and would by agreement be used for legal fees: Exhibit A pages 250-251 paragraphs 15-19. In paragraph 5 of the Defence filed on 14 September 2018 in the proceedings commenced in the Local Court, which was later transferred to the District Court, the Xie defendants plead: "The plaintiff transferred $8,000 via electronic funds transfer to the account nominated by the second defendant and further say that $8,000 was to be paid as the first initial part payment for 20% shares of Muse as agreed". This was not changed in the Amended Defence. 17. Later, in the affidavit evidence, this sum is referred to by Ms Xie not as a part payment of the purchase price by Ms Huang but as a "deposit": Exhibit A page 250, paragraph 15; page 392, paragraph 31; page 396, paragraph 59. Whether the $8,000 transferred was a refundable deposit or a part payment pursuant to a binding agreement shall be considered further below. It appears from the Xie primary written submissions that there may in fact be no issue that the $8,000 was initially a deposit: see paragraph 11. It is claimed that it was later treated by the parties as a part payment pursuant to a concluded agreement reached over the telephone: Xie primary submissions paragraphs 9 and 12. By 9 December 2017 and 24 December 2017 (the dates of the important two meetings), the lease for the Muse Waterloo shop had already been entered into so there was no future expense relating to the lease preparation at that time: Exhibit 1. However, a draft contract needed to be prepared for the parties for consideration. There is no evidence as to the legal fees estimated to or charged to the Xie interests to prepare a draft agreement between the parties: cf the last sentence in paragraph 12 of the Xie interests' primary written submissions; Bai second affidavit Exhibit A page 670, paragraph 20 ($6,000 – this is a different figure to Ms Xie and Ms Huang). 18. As stated, what occurred at the 24 December 2017 meeting is disputed. Ms Xie claims that she had a telephone conversation with Ms Huang after the meeting in which Ms Huang made an offer of $138,000 for 20% of the shares in Muse Waterloo as well as working as the manager in the new shop to be established by Muse Waterloo and providing the beauty supplies to the new shop to be established at wholesale prices. In substance, Ms Xie and Ms Bai claim that they discussed the alternative offers of Ms Qiqi Li and Ms Huang and preferred the Huang offer as Ms Huang was willing to work in the shop as the manager and provide the supplies at wholesale prices. Ms Huang claims that there were only initial discussions as set out in her affidavits involving a payment of $138,000 for 20% of the shares in Muse Waterloo with there being no final agreement reached and Ms Huang stating that she wanted to come in to the Muse City shop to inspect the books and records of the company, its trade results and the WeChat accounts and software used at the Muse City store which was to be licenced to Muse Waterloo: see Exhibit A page 108 paragraph 14. In substance, Mr Nam supports his wife's account. 19. Between early January 2018 and 14 January 2018 Ms Huang was in South Korea to study beauty treatment techniques. I am satisfied from WeChat text records in evidence that she returned to Australia on the morning of 15 January 2018. Prior to this, I am satisfied and find that instructions were given by Ms Xie to her solicitor, Mr James Li of Sun Lawyers, to prepare an appropriate draft agreement in relation to the investment by Ms Huang (but initially in the name of Mr Nam): Exhibit A page 498 (the email refers to "some rough ideas" not agreed terms and does not refer to the price or the investor). 20. It is claimed by Ms Xie that a draft of the agreement was provided by Ms Xie to Ms Huang at a meeting between the parties in late December 2017, on 28 December 2017: 8 June 2021 affidavit paragraph 5; Exhibit A page 396, paragraphs 61-62. Having considered the submissions and the evidence, I am not satisfied that this meeting occurred as claimed by the Xie interests. There is no independent contemporary persuasive evidence to support its occurrence. The email records at Exhibit A pages 497-8 do not refer to a meeting on this date. See also Exhibit A page 144 which does not refer to a meeting. The submissions made by the Xie interests in chief at paragraphs 20-21 and in response at paragraphs 16-19 supporting such a meeting occurring are rejected. 21. I do not accept that the WeChat messages relied upon support the submission that a meeting occurred between the parties on 28 December 2017. First, there is no reference in emails or WeChat messages to such a meeting. Secondly, there is no reference in later emails or WeChat messages to the errors in the draft Agreement. It is likely these would have been noted or raised or at least mentioned if a draft agreement was provided in the form suggested on 28 December 2017: the reference to the wrong address for Mr Nam (Rosebery) and the reference to Ms Lo (clause 5.1). Thirdly, there is no correspondence expressly seeking or discussing the payment by the Huang interests of the remaining share purchase price. Fourthly, there is no correspondence between the parties relating to the issue of the shares. Fifthly, there is no evidence that the Xie interests had provided Ms Huang with a copy of the lease (Exhibit 1) or other details relating to the fitout of the Muse Waterloo store as one would expect if a binding contract had been entered into. It must be recalled that Mr Nam and Ms Huang were a young couple allegedly making a significant investment. I accept the Huang interests' primary written submissions on this issue. The WeChat messages are at the least unclear and equivocal. I think it likely that there would be express reference to a meeting in the WeChat messages or emails if such a meeting had occurred as asserted on 28 December 2017. I prefer the evidence of Ms Huang and Mr Nam on this issue. This is discussed further below. Accordingly, the next meeting between the parties occurred on 15 January 2018 when Ms Huang returned from South Korea. Prior to 15 January 2018, I find that Ms Xie and Ms Bai had not provided a draft contract for the purchase of the shares to Ms Huang and Mr Nam. 22. Ms Huang gives evidence in her affidavits that she thought the lack of contact with Ms Xie between 24 December 2017 and her return from South Korea on 15 January 2018 was potentially due to the fact that Ms Xie and Ms Bai may have been considering other offers for investment in Muse Waterloo. She confirmed this in her oral evidence. She was therefore keen to meet again with Ms Xie and they arranged the meeting for the day of her return from South Korea. The WeChat messages in evidence satisfy me that it was Ms Xie who took the initial steps to arrange the meeting. Ms Xie gives evidence that she had discussions with Ms Bai about an alternative offer of an investment from Ms Qiqi Li for $180,000 but this did not involve Ms Li working in the shop. She states that a decision was made to prefer Ms Huang because of her willingness to work in the new Muse Waterloo store as store manager and to contribute to the supply of beauty products at wholesale prices. In any event, I am satisfied that the meeting occurred at Ms Huang's home in Colebee, an outer suburb of Sydney, in the late morning and early afternoon of 15 January 2018. This was not disputed by the parties in their evidence and submissions. 23. As stated, Ms Xie claims that a draft of the share subscription and accession agreement was provided to Ms Huang well before this alleged meeting, on 28 December 2017. I have found that such a meeting did not occur. I do not regard the correspondence between Ms Xie and her solicitors referred to at Exhibit A pages 497-8 as indicating or establishing that this meeting occurred. See also the references in paragraphs 20-21 of the Xie primary written submissions. The WeChat message at Exhibit A page 144 (third block of messages, agreed to have been sent on 28 December 2017) does refer to making "the changes" but it is unclear what this is referring to. Further, if there had been a meeting on 28 December 2017 between the parties, it would seem to have been unnecessary to provide information by way of WeChat on that day – it could have been provided at the meeting itself. I find that a draft of the agreement was not provided by Ms Xie or Ms Bai to Ms Huang and Mr Nam before the meeting on 15 January 2018. I prefer the evidence of Ms Huang and Mr Nam on this issue, particularly in the light of the email and WeChat evidence which does not refer to such a meeting. I found them overall to be far more impressive witnesses on most issues, although I do not accept all of their evidence. I will discuss this further below. 24. I do accept and find that at the meeting on 15 January 2018, Ms Huang paid $60,000 in cash to Ms Xie and Ms Bai. The Xie interests claim that this was a further part payment of the $138,000 purchase price for the 20% shares in Muse Waterloo. The Huang interests claim that this payment was made as a further refundable payment to show the commitment of Ms Huang to the transaction subject to her due diligence and agreement to a written contract. Ms Xie claims that Ms Huang actually offered them the full $130,000 in cash outstanding at that time but Ms Xie decided not to accept it because she did not want to carry that amount of money in cash but was willing to accept $60,000 in cash. Ms Xie claims that Ms Huang later said that she would supply the balance of $70,000 from the sale of beauty products: Exhibit A page 400, paragraph 71. Ms Huang denies that such an offer was made and said she did not have $130,000 in cash at the time at her home. 25. There is thus a distinction between the parties' cases as to whether the $60,000 cash paid by Ms Huang on 15 January 2018 was agreed as a further payment of a refundable deposit or a part payment towards the $138,000 amount for the shares pursuant to a concluded and binding agreement. This will be considered further below. 26. The evidence shows that at 2:25pm on 15 January 2018, Ms Xie forwarded by email a copy of the draft share subscription and accession agreement to Mr Nam. Ms Xie says this was the wrong version of the agreement (it was in Mr Nam's name as opposed to Ms Huang's name) as a later draft had been received by her from her solicitor: Affidavit dated 8 June 2021 paragraph 10. Having regard to the annexures to Ms Xie' affidavit, this appears to be correct. Despite the contents of Ms Xie's 8 June 2021 affidavit, having regard to the time this draft was sent and the time of the meeting, I reject the suggestion that Ms Huang and Mr Nam had any real practical opportunity to review the agreement in detail during the meeting or before they left the house on that day to travel to Waterloo to inspect the premises. I prefer the evidence of Ms Huang and Mr Nam on this issue. Ms Huang and Mr Nam had to make preparations for their small child before they travelled by car to Waterloo. I find there was not sufficient time for them to have reviewed the agreement and accepted it as claimed by Ms Xie. Ms Xie also had a number of opportunities to provide her version of the 15 January 2018 meeting in her earlier affidavits. Her second affidavit substantially altered the version in her original affidavit: Exhibit A page 252 cf page 399, paragraph 70 and following. The third 8 June 2021 affidavit appears to me to set out a version in paragraph 11 of the meeting which has been reconstructed by Ms Xie to fit her case. If correct, she would have inserted it in earlier affidavits prepared well before her latest affidavit. 27. It appears accepted by all parties that a receipt was prepared and signed by Ms Xie and Ms Bai on 15 January 2018: see Exhibit F. There is an issue whether it was handed to Ms Huang on that day or merely left on a table in Ms Huang's residence. The receipt refers to the $60,000 in cash as follows: "Kailing Xie and Yuling Bai hereby received cash of $60,000 on 15 January 2018 as the balance payment for the Waterloo Agreement Share Subscription." There is no reference to the sum being a refundable deposit. Ms Huang's final evidence was that she did not read the receipt until later, and if she had read it on 15 January 2018, she would have asked for it to be reissued so as to refer to the payments as refundable deposits. The agreed contents of the receipt appear to be inconsistent with both parties' cases while recognising that $68,000 had been paid by Ms Huang. The translation refers to the $60,000 in cash being "the balance payment for the Waterloo Agreement Share Subscription" whereas on both cases it was not the balance payment and an additional $70,000 was to be paid, depending on whether the agreement was binding or not. See for example the Xie interests' written submissions in chief at paragraph 27. 28. In my view, it is likely the receipt was not reviewed in detail on 15 January 2018 by Ms Huang or Mr Nam but was likely reviewed sometime in the next week or so and before 28 January 2018. They did not appear to have had the time to review it carefully on 15 January 2018. However, I reject Ms Huang's evidence that she did not review it until April 2018: see paragraphs 32-39 of the Xie responsive submissions. I agree with the Xie responsive submissions that Mr Nam must have reviewed it by 29 January 2019 if not before: paragraph 36 and Exhibit A page 82. If he had reviewed it, it is likely that Ms Huang would also have reviewed it. It seems that on any view the receipt was inaccurate. 29. I accept the evidence that all parties then travelled by separate motor vehicles for an inspection of the Muse Waterloo premises. However, the premises were not available to be inspected at this time. 30. Ms Xie gives evidence in her affidavits that she instructed Muse Waterloo's accountant to register the new shares said to have been issued to Ms Huang. She states that this instruction was given well before the end of January 2018. From the date on the share document lodged with ASIC, it is unclear when the instruction was given. Why this instruction would be given by Ms Xie before the balance of $70,000 was paid by Ms Huang for the shares on Ms Xie's case, is unclear. There are aspects relating to the share lodgement form which raise issues as to its accuracy and the reliability of Ms Xie's evidence. The accountant did not give evidence in the proceedings. This matter will be considered further below. 31. Ms Xie and Ms Bai give evidence about Ms Huang being involved in reviewing pricelists and suggesting products for the Muse Waterloo store as indicating that there was a concluded agreement for Ms Huang/Mr Nam to invest in Muse Waterloo and there being part performance by her of the alleged agreement. See also paragraphs 43-44 of the Xie interests' submissions in chief. I do not accept that Ms Huang's involvement in looking at the pricelists and making suggestions establishes or supports the existence of a concluded agreement or constitutes part performance. They were sent to her. Her conduct was equally consistent with making observations and recommendations when asked for her opinions prior to deciding not to proceed with the transaction. I do not regard the evidence, including the WeChat messages on these aspects, as indicating or establishing a binding agreement. Similarly, some involvement by Ms Huang in assisting with the opening planning for the Muse Waterloo shop and in possibly using language such as "our shop", is, in my opinion, equally consistent with a desire to proceed provided a draft contract and Ms Huang's investigations proved to be satisfactory to her (see Xie submissions in chief at paragraphs 45-46). 32. There are WeChat exchanges between Ms Huang, Ms Xie and Ms Bai in relation to a business card being prepared for Ms Huang at Muse Waterloo. This is relied on by the Xie interests as being further evidence of a concluded agreement (submissions in chief paragraph 47). In my view, that evidence does not establish that and is equally consistent with continued discussions between the parties and the Xie interests wanting to obtain a concluded agreement. The evidence partly relied on by the Xie interests was WeChat messages made before Ms Huang's attendances had concluded at the Muse City shop. 33. Ms Xie states in her first affidavit that on 18 January 2018 Muse Waterloo signed a lease for the new shop in Waterloo: Exhibit A page 389, paragraph 15. That is inconsistent with Exhibit 1 which shows the lease was signed on 8 December 2017. The latter is clearly to be preferred as it is the primary document. 34. Between 17 and 25 January 2018, Ms Huang attended the Muse City shop on a number of occasions. Ms Xie claims that this was in order for at least Ms Bai to provide training to Ms Huang in relation to beauty treatment skills and techniques. Ms Xie and Ms Bai claim that Ms Bai provided Ms Huang with access to her confidential "tutorial clips" in relation to techniques and beauty treatments. Ms Huang states that she attended to review the shop's operation and customer base as an observer and to undertake due diligence. Some significant support for that version is provided by Ms Lo who was working in the shop at the time. Ms Xie gave inconsistent evidence on this issue as to what training was given by her to Ms Huang. Overall, I prefer the evidence of Ms Huang and Ms Lo on this point that the primary focus of Ms Huang was observation although it appears from WeChat exchanges, as submitted by the Xie interests, that some instruction (or even training) was given to Ms Huang by Ms Bai. Ms Lo was working in the shop at the time and would have been aware of what she herself did. Ms Xie was not often in the Muse City shop during this period. 35. Reliance was placed by the Xie interests in their submissions on a number of WeChat messages as establishing training being given by Ms Xie and particularly Ms Bai to Ms Huang to prepare her as manager for the Muse Waterloo shop: see the Xie interests submissions in chief at paragraphs 32-40. There is some force in the Xie interests' submissions that the WeChat messages establish at the least that some instruction (or perhaps even training) was given to Ms Huang, particularly by Ms Bai (see primary submissions paragraphs 33-40). Ms Huang herself admitted in her oral evidence that she was shown certain equipment. However, there is a difference between being shown equipment and techniques and being given limited instruction on the one hand and being given training pursuant to a concluded agreement to be the manager of the new shop on the other. Whilst I find that the Xie interests wanted Ms Huang to be the manager of the Muse Waterloo shop, this was a matter to be determined as part of a final agreement in the context of Ms Huang having a young child to care for. Having some instruction is not the same as having detailed training to perform an agreed role under a concluded agreement. In the end, the evidence of Ms Lo and Ms Huang establishes to my satisfaction that no detailed training as opposed to limited instruction or training was given to Ms Huang for an agreed contractual role during her time attending the Muse City shop. 36. Ms Xie also claims that at night in this period, Ms Huang went to Ms Xie's home to learn beauty treatment skills and techniques. Ms Huang denies this and points to the fact that she had a small child to care for, she did not drive at the time and her home was an extensive distance from Ms Xie's home. Ms Xie did not mention this training in her oral evidence when asked about any training she provided to Ms Huang: T49.30-.43. The matters referred to by Ms Huang in her evidence as indicating her evening attendance to be very unlikely in my view are persuasive and I reject Ms Xie's evidence that she provided any substantial training in beauty treatment skills and techniques to Ms Huang in this period, including at her home. 37. The Xie interests rely on there being a lack of any evidence of an inspection by Ms Huang or a request to see relevant documents, including financial records: written submissions in chief at paragraphs 31 and 42; oral submissions. In my view, whilst this is a matter properly to take into account, the lack of a formal request to have an inspection or contemporaneous evidence relating to an inspection is not decisive. The interaction between the parties at all times was fairly informal. There were no detailed emails between the parties setting out what was discussed or agreed at the important meetings which did occur. Most interaction appeared to be by WeChat, telephone or in person. Further, there is no evidence Ms Huang had retained a solicitor by this time for the purposes of the proposed purchase: see second Huang affidavit Exhibit A page 108, paragraph 14. In addition, the need to attend the Muse City store was allegedly referred to by Ms Huang on 24 December 2017 at the meeting on that day. 38. It is clear that Ms Huang attended the Muse City store on a number of occasions in January 2018. Her presence at the shop gave her an opportunity to observe the business and its customer attendance in the course of a day. This would have provided significant guidance to her on the customer turnover in light of what was alleged to have been said about the business. Thirdly, the fact that attendance occurred at the Muse City shop as opposed to the Muse Waterloo shop is not conclusive (Xie submissions in chief paragraph 31(a)). The Muse Waterloo shop was not yet open to customers. It could not be seen in operation. The aim of the two stores was to share customers according to Ms Huang. She claims she was told there was a large daily turnover of customers at the City store. Whilst the two businesses were separate businesses, the Muse City shop's turnover and daily customer attendance was some guidance in relation to the likely future prospects of the Muse Waterloo store – Ms Xie and Ms Bai held majority interests in both stores and there was proposed to be a sharing of the WeChat client base of the Muse City store. The lack of reference to any inspections undertaken by Ms Huang in the 29 January 2018 email from Mr Nam to Ms Xie also does not assist the Xie interests. The email is a short email and does not purport to discuss the basis of the decision not to proceed in any real detail. 39. I accept and find that during the period 17 January to 25 January 2018 Ms Huang sent WeChat messages to Ms Xie and Ms Bai expressing ideas on the Muse Waterloo proposed price menu and other aspects of the shop. I find that these are not strong pointers to their being a binding agreement between the parties. The matters are equally consistent with Ms Huang still undertaking the investigations in relation to the proposed investment at that time whilst involving herself to some degree with the shop if she decided to proceed with an investment. 40. On 28 January 2018, a meeting occurred at which Ms Huang told Ms Xie that she did not want to proceed with the acquisition of the shares in Muse Waterloo. Ms Xie states that Ms Huang said that she wanted to quit the investment in Muse Waterloo because she was pregnant and her husband did not wish her to work during her pregnancy. Ms Xie says that a refund was requested by Ms Huang. Ms Xie says that a threat was issued by Ms Huang to her if the refund did not occur. Ms Huang states in her affidavit evidence that she wished not to proceed and wished to obtain a refund because the promises made to her in relation to customer turnover and the operation and intellectual property which would be made available to Muse Waterloo were not substantiated during her observations and due diligence. I will consider this issue further below. 41. Ms Xie claims that she had a further meeting at the home of Ms Huang on that day to try and convince Mr Nam to reconsider Ms Huang continuing on reduced duties at the Muse Waterloo shop. This is rejected by both Ms Huang and Mr Nam. 42. The company searches in evidence show that on 29 January 2018 25 shares in Muse Waterloo were notified as having been registered in Ms Huang's name: Exhibit A pages 94-95. This is despite the fact that the share subscription and accession agreement contemplated a formal signed application by Mr Nam (or Ms Huang in the other draft) for the shares: Clauses 2.1 and 2.2 and Schedule 2. There is no suggestion that any such signed application for the shares was made by Mr Nam or Ms Huang. Secondly, no "duly executed share certificate showing [Mr] Nam as the holder" of the shares was provided by Ms Xie or Ms Bai: Clause 2.2(b). Thirdly, the full amount of the proposed payment had not been received before the alleged issue: Clause 2.1(b). Fourthly, in her oral evidence Ms Xie conceded that there was no directors' meeting to approve the share issue and she did not have the company share register. Fifthly, the Change to company details application indicates that it was signed by Ms Xie on 29 January 2018, the day after Ms Huang said she asked Ms Xie for a refund: Exhibit A page 94. The document suggests the date of entry of the member's name in the share register was 28 December 2017: Exhibit A page 95. However, Ms Xie agreed in evidence that she did not have the company share register. Ms Xie also accepted that the document was incorrect in recording that nothing was paid on the shares and $138,000 remained to be paid: Exhibit A page 95. On Ms Xie's case, $68,000 had been paid pursuant to a binding agreement. 43. Ms Huang submits that the date of entry in the share register indicated (Exhibit A page 95) must have been backdated and was effectively registered on 29 January 2018 by Ms Xie in order to give some force to the Xie/Bai submission that there was an existing binding agreement as at 28-29 January 2018. Ms Huang and Mr Nam say that no request was ever made by either of them for the issue of the shares as no concluded agreement had ever been entered into. It was submitted that this matter severely impacted Ms Xie's credit. 44. I set out below the reasons why I prefer the submission of the Huang interests that the share recording was ordered by Ms Xie to attempt further to support her version that there was a binding agreement when this was not the case. 45. On 29 January 2018, Mr Nam sent a formal email to Ms Xie. This email included the following: "This is to bring to your kind attention that we have make decision not to proceed with the purchase of 20% shares for Muse Beauty Salon Waterloo (ABN 32 623 116 709). We have already made the payment as per your request in advance and now would appreciate if you could arrange for the refund of the same … I'm not interested on any kind of offer at the moment. We will looking forward your arrangement before further action taken." 1. Ms Xie states that she informed Ms Huang that the money paid by her had been used on the fit out of the Muse Waterloo premises and could not be refunded. In her oral evidence, Ms Xie said the money was deposited in her WeChat bank account and used for the fit out and to buy equipment from China. There is a dispute about who stopped taking WeChat messages from the other parties which is unnecessary to be determined. 2. Ms Xie and Ms Bai claim that from February 2018 onwards they became aware that suggestions were being made by Ms Huang and others that Ms Xie had obtained $68,000 "illegally" from her. Substantial evidence was before the court of various WeChat posts making highly critical and threatening allegations in relation to Ms Xie. 3. It seems to be accepted that in around March 2018, following a number of discussions, Ms Cindy Liu decided to invest in the Muse Waterloo company. In due course, an investment was made by her in both Muse Waterloo and Muse City. Ms Liu attended the opening of the Muse Waterloo store in April 2018: Exhibit 4. In due course, a 20% share interest in Muse Waterloo was purchased by Ms Liu for $100,000 and a 20% interest in Muse City was purchased for $80,000. The contract to purchase the shares in the two companies was entered into by Ms Liu in about April 2018 with the $180,000 being paid for the shares by her also at about this time. 4. In May 2018, Ms Liu requested a cancellation of the share purchase contracts. The Xie interests claim that this request was due to the comments made which emanated from Ms Huang that Ms Xie had lied in relation to the business and taken $68,000 unlawfully. Ms Xie states that Ms Liu made threats if the investment was not refunded. Ms Huang gives evidence that she and Ms Liu did not know each other at this time. In any case, after some discussion, Ms Xie and Ms Bai decided to refund the money to Ms Lui less some amount for solicitor costs. This amount of money is sought to be recovered by the Xie interests in the action for injurious falsehood. The money was refunded to Ms Liu in May and June 2018. 5. There is some evidence from Ms Xie and Ms Bai that they found out that cash and company books were missing from the Muse City store and that Ms Kitty Lo admitted to stealing the money to assist her ill sister. Ms Lo denies that and says that she was looking after some of the money and wished to look at the books and provide them to Ms Huang to review. It is clear that Ms Lo was aware of online posts relating to Ms Xie and had contacted Ms Huang in this period. Eventually, Ms Xie happened to attend the police station to complain and found Ms Lo and Ms Huang present at the same police station in order to complain about Ms Xie and Ms Bai. No action was taken by police in relation to Ms Lo who was a shareholder of Muse City at the time. 6. As stated, there were WeChat posts at about this time which were highly critical of Ms Xie. There is a question to be determined as to who was the author of those posts. 7. The evidence shows that on 3 June 2019, Muse Waterloo sold its business to Lady M Pty Ltd for $100,000. A $25,000 commission was paid in relation to the sale of the business. There is no expert evidence as to the proper value of the business at this time or as to the reasonableness of the quantum of the commission paid. 8. Ms Huang continues to seek the refund of the $68,000 plus interest which she and Mr Nam say were refundable deposits. The Xie interests seek damages for breach of contract for loss suffered, alternatively for the repayment of the outstanding amount of $70,000, together with interest as well as damages for the tort of injurious falsehood. Orders made in relation to evidence in the proceedings 1. On 7 June 2021, the court made the following orders: 1. The two proceedings be heard together; and 2. That evidence in one proceeding was to be evidence in the other proceeding. Evidence for Ms Huang and Mr Nam Ms Huang 1. Ms Huang relied on four affidavits affirmed by her as follows: 1. Affidavit affirmed 20 March 2020; 2. Affidavit affirmed 15 May 2020; 3. Affidavit affirmed 17 May 2021; and 4. Affidavit affirmed 30 September 2021. 1. In these affidavits, Ms Huang gives a detailed account of her versions of the various meetings and replies to the affidavits of Ms Bai and Ms Xie. In substance, her evidence was that representations were made to her by at least Ms Xie in relation to the Muse City business and its profitability and turnover, the existence of intellectual property software which would be used to harvest clients for a proposed new store at Waterloo in Sydney, a sharing of profits and a discussion about Ms Huang assisting in the store. Ms Huang states that $68,000 was paid as refundable deposits in two tranches of $8,000 and $60,000 on 24 December 2017 and 15 January 2018, respectively. She also alleges that she went to the Muse City store to observe and undertake due diligence, not for training, and was not given access to the intellectual property or accounts of Muse City. In addition, she formed the view that the business was nothing as had been indicated to her. She claims that as a result of the failure to live up to the representations made to her by Ms Xie and Ms Bai, she sought a refund of her $68,000 from Ms Xie and Ms Bai which was declined. 2. In her reply affidavits she gives detailed responses to the affidavits prepared by Ms Bai and Ms Xie. Mr Nam 1. Mr Nam provided two affidavits which were read in the proceedings: 1. Affidavit affirmed 15 May 2020; and 2. Affidavit affirmed 17 May 2021. 1. In substance, Mr Nam provides evidence confirming the versions of the meetings where he was present given by his wife, Ms Huang. He generally confirms the point that the $68,000 was sought to be recovered not because his wife was pregnant but due to their dissatisfaction with the information which had been provided in relation to the Muse City store and the alleged lack of intellectual property and software to allow customer records to be used in the Muse Waterloo store. Ms Lo 1. Ms Huang and Mr Nam relied on and read three affidavits of Ms Yuk Yee Lo also known as Kitty Lo being: 1. Affidavit affirmed 15 May 2020; 2. Affidavit affirmed 16 May 2021; and 3. Affidavit affirmed 6 October 2021. 1. Ms Lo was a trained and qualified beautician. She had previously provided beautician services to Ms Xie at a beauty store owned by her. Ms Lo states that she was requested by Ms Xie to work in the Muse City store as a beautician and provide beautician services there. She later states that she also worked in the Muse Waterloo store. 2. Ms Lo's evidence is relevant as it confirms that in January 2018 Ms Huang attended the Muse City store on a number of occasions only to observe and was not provided with beautician training while she was there either by her or, to her observation, by Ms Bai or Ms Xie. 3. A number of agreements between Ms Lo and the Xie parties are in evidence: see Exhibit 3. Ms Lo claims that it was agreed that she was to be given shares in Muse Waterloo. She also claims that she paid $60,000 in cash to Ms Xie and Ms Bai as an investment which the latter strongly deny. There is a major credit issue as to whether she was provided a signed receipt by Ms Xie and Ms Bai for this payment: see Exhibits 2 and 8 for a receipt. She claims that when the Muse City store was shut down, she no longer had a job there. Mr Hui 1. The Huang interests read an affidavit of Mr James Hui dated 18 October 2021. Mr Hui was the solicitor who acted for Ms Lo in her dealings with Ms Xie and Ms Bai in November 2017 in relation to the agreements executed by Ms Lo. 2. Mr Hui gave evidence that he had telephone conversations with Ms Lo and received a text message from her. He stated that his current phone had recorded on it a text message from Ms Lo sent on 29 November 2017 at 10.23am attaching a photograph of a receipt. The receipt is dated 28 November 2017 and purports to be the receipt given to Ms Lo by Ms Xie and Ms Bai for the $60,000 payment. Both the payment of $60,000 by Ms Lo and the provision of the receipt are denied by Ms Xie and Ms Bai. Mr Hui said he recalled Ms Lo asking him on 29 November 2017 whether the receipt was "sufficient proof of the payment of $60,000": paragraph 6. Mr Hui annexed the copy of the photograph of the receipt and a file note made by him on 29 November 2017 to his affidavit: paragraphs 5 and 8. This evidence is relevant to the credit of Ms Lo, Ms Xie and Ms Bai. If accepted, it makes the Xie/Bai version relating to the denial of the $60,000 payment and the provision of the receipt by Ms Xie and Ms Bai very unlikely. Evidence of the Muse companies and Ms Xie and Ms Bai Ms Xie 1. The Xie interests read four affidavits of Ms Xie in the proceedings: 1. Affidavit affirmed 31 March 2020; 2. Affidavit affirmed 10 June 2020; 3. Affidavit affirmed 26 May 2021; and 4. Affidavit affirmed 8 June 2021. 1. These affidavits strongly dispute the account of meetings and conversations given by Ms Huang and Mr Nam. In addition, they dispute significant aspects of the evidence of Ms Kitty Lo. 2. In relation to Ms Lo, Ms Xie states that Ms Lo never paid $60,000 to her in cash and the receipt annexed to Ms Lo's evidence has never been seen by her before. Similar evidence is given by Ms Bai. 3. In relation to Ms Liu, Ms Xie states that she sought a refund of her moneys due to the rumours which had been fostered by Ms Huang in relation to Ms Xie. It is said that Ms Liu's investment was refunded as it was clear that it was not practical for them to do business any more together. 4. Ms Xie provides in her affidavits a very different account of the factual background to Ms Huang and Mr Nam. In substance, she gives evidence that there was a concluded agreement with Ms Huang to acquire 20% of the shareholding in Muse Waterloo for the sum of $138,000 with Ms Huang to work as the store manager in the Muse Waterloo business. It is asserted that there were no representations made about the profitability of the Muse City store or any intellectual property. It is said that Ms Huang changed her mind about the investment due to her becoming aware that she was pregnant and her husband not wishing her to work. It is asserted that the interaction between the parties objectively amounted to a binding agreement with Ms Huang in relation to the purchase of 20% of the shares. It is said that the recognition of the interest of 20% in Muse Waterloo as disclosed on a company search reflected the agreement reached. It is claimed that the remaining $70,000 was to be paid by Ms Huang once she had sold beauty products from South Korea at a profit. Ms Bai 1. The Xie interests relied on and read two affidavits of Ms Bai: 1. Affidavit affirmed 11 June 2020; and 2. Affidavit affirmed 26 May 2021. 1. Ms Bai states that she did not attend the 9 December 2017 meeting with Ms Xie and Ms Huang and Mr Nam. Otherwise, Ms Bai in substance supports the accounts of Ms Xie in her affidavits in relation to dealings with Ms Huang, Mr Nam, Ms Liu and Ms Lo. Mr Li 1. The Xi interests read an affidavit of Mr Gen (James) Li dated 29 September 2021. Mr Li was the solicitor who acted for Ms Xie and Ms Bai and Muse City in relation to agreements which were entered into with Ms Lo in November 2017. In particular, Mr Li gives his recollection of the conference with Ms Lo and the subsequent execution of the relevant agreements on 29 November 2017. Importantly, in paragraph 14 of his affidavit, Mr Li states in relation to the receipt which is Exhibit 8 in the proceedings, that his recollection is that on 29 November 2017 he did not see the receipt nor did any of Ms Xie, Ms Bai or Ms Lo mention to him the payment of $60,000. Oral evidence of Ms Xie 1. Ms Xie gave oral evidence over several days. All her evidence was given through a Mandarin interpreter. It was therefore in the main difficult to make an accurate assessment of Ms Xie's demeanour except through the nature and content of her answers. I take into account the length and nature of the cross-examination in considering her evidence as well as the fact that it was given through an interpreter. 2. In further evidence in chief, and in relation to paragraph 79 of her affidavit affirmed 10 June 2020, Ms Xie said that the only reason she knew that Ms Bai provided training to Ms Huang was that Ms Bai told her and this was referred to in sheets signed for work on the day and in WeChat messages: T44. 3. Ms Xie was then the subject of very detailed cross-examination in relation to her affidavit evidence. Ms Xie was asked about her English language skills. Whilst agreeing that she had learned English in China, Ms Xie said her English was poor when she arrived in Australia and even by 2014, while her reading ability was better, her listening and speaking abilities in English were not good: T48.7. She later stated that whilst her English language skills had improved since, she was not comfortable without an interpreter. 4. Ms Xie stated that after meeting Ms Bai they decided to operate a nail salon in Sydney and undertake more beautician studies in China. Ms Xie confirmed that her specialty was nail polishing and eyebrow and eye line tattooing. 5. It was put to Ms Xie that she never trained Ms Huang herself. Initially, Ms Xie gave evidence that she trained Ms Huang in sales, product marketing and managing staff but not in the technical aspects of the beauty business: T49.30-.35. Many more questions were asked of Ms Xie in cross-examination in relation to the training of Ms Huang. In the end, Ms Xie claimed that whilst Ms Huang went to the Muse City shop on 17, 18 and 24 January 2018 for training, this was with Ms Kitty Lo and Ms Bai and she was not present herself in the shop on those days when Ms Huang was given beauty training: see Exhibit A page 403 paragraph 79. No mention was made in her oral evidence of training said to have been given by Ms Xie to Ms Huang in the evenings in January 2018. 6. Ms Xie confirmed that as far as she was aware neither she nor Ms Bai had any licences to provide beauty services in Australia at the Muse City shop. However, she said they had licences to operate the business. Ms Xie confirmed that both she and to her knowledge Ms Bai were not members of any Australian body providing beauty therapy treatment and did not complete studies in Australia to achieve a Diploma of Beauty Therapy or Remedial Massage. Ms Xie confirmed that she did not make enquiries as to whether her Chinese qualifications were recognised in Australia. 7. Ms Xie was asked a number of questions about the price list headed "old pricelist" at Exhibit A pages 520 and following. Ms Xie confirmed that the words "old pricelist" had been added to the document for the purposes of the proceedings and that the document at page 520 reflected the pricelist at the Muse City store by late 2017. Ms Xie claimed that the pricelist was very confidential and she said only a few pages were put on display at the Muse City shop. 8. Ms Xie confirmed that the Muse City store had a WeChat client base. The pricelist of services at the store was available to WeChat clients and was used by Muse City to promote its services to customers on the WeChat client base. Ms Xie confirmed that the client list from page 520 of Exhibit A was used for marketing. 9. Ms Xie confirmed that the Muse City shop was located on Level 8 of a building in an office suite and beauty services were offered there from April 2017. See Exhibit A page 248 at paragraph 6 as corrected at Exhibit A page 389, paragraph 13. 10. Ms Xie was asked about the "OPT" services relating to permanent hair removal referred to at Exhibit A page 530. She agreed that equipment was used which was obtained from China for this treatment. Although she agreed that the Muse City store engaged persons qualified to undertake work such as Ms Kitty Lo, she denied that she and Ms Bai did not undertake the training of Ms Huang as they were not qualified or experienced to provide the training. This was despite the fact that they had no licence to carry out services such as OPT treatment in late 2017 and early 2018. Ms Xie said that she had obtained experience to provide these services both in China and in Australia. 11. Despite her evidence at T49.30-.44, Ms Xie maintained her view that Ms Huang had been provided training in beauty skills at the Muse City shop. She said that Ms Huang had asked her to provide training including in eyelash extensions and she reluctantly agreed. There was thus some inconsistency in the evidence given by Ms Xie on this issue as to training. 12. Ms Xie was then asked questions about paragraph 28 of her first affidavit where she states: "On or about 25 January 2018, Huang learned beauty treatments skills and techniques from me at the new shop": Exhibit A page 253 paragraph 28. 13. Ms Xie agreed that while she had given training in marketing and client related matters, she had also provided training in eyelash extension and tattooing. She denied the proposition that Ms Huang had not undertaken any training as she attended at the Muse City shop to observe the city business. She claimed that WeChat screenshots showed that Ms Huang was there to learn. 14. There was then extensive cross-examination in relation to the assertion in paragraph 28 of her first affidavit (Exhibit A page 253), that Ms Xie provided training to Ms Huang "at the new shop" on 25 January 2018. Ms Xie remained of the view that this was true and correct. She denied that on 25 January 2018 the new shop was still being fitted out and accordingly she could not have provided any training to Ms Huang at the new shop. However, the documents in evidence relating to the construction work at the new shop for Muse Waterloo suggest that construction work was still being undertaken as at 25 January 2018: Exhibit A page 608-623 especially at pages 613 and 616-619. These suggest that tiling and partition work was being undertaken as part of the fitting out of the shop in January-February 2018. Ms Xie appeared to accept that by 23 January 2018 the construction firm had barely completed the tiling work and this was consistent with her own memory of the work being undertaken. Despite this, Ms Xie maintained that Ms Huang did obtain training at the new shop from her on or about 25 January 2018. She denied that the assertion that training had been provided by her to Ms Huang was incorrect. She also denied that she had a discussion with Ms Huang on 24 December 2017 and 15 January 2018 to the effect that Ms Huang wanted an opportunity to undertake inspections of the Muse City store and that is why she attended at the store in January 2018. Ms Xie conceded that she had a "very foggy memory" of Ms Huang attending on 17 January 2018 at the Muse City store and did not know if she was there at the same time as Ms Huang: T84.44. Ms Xie agreed that she did not have firsthand knowledge of Ms Huang obtaining training on the January 2018 dates but states that she obtained feedback to that effect from Ms Lo, Ms Bai and from Ms Huang herself. 15. Ms Xie was asked numerous questions about her account of the 24 December 2017 brunch meeting at Chatswood with Ms Huang and Mr Nam referred to in paragraphs 15-19 of her first affidavit: Exhibit A page 250. In relation to paragraph 16 of her first affidavit where Ms Xie states that after the brunch meeting Ms Huang transferred $8,000 "to our account immediately", Ms Xie said that this was a bank account opened in her mother's name. She stated that the $8,000 provided by Ms Huang had been withdrawn and paid to the company undertaking the renovations. She stated that her mother withdrew the amount at her request. It seems clear therefore that the money was not used to pay Ms Xie's solicitors for drafting any agreement with Ms Huang. 16. Ms Xie gave evidence that her recollection was that the money was transferred by Ms Huang to the account after she left the brunch meeting. 17. Ms Xie was asked why she accepted the $8,000 from Ms Huang before telling her that other persons were interested in investing in Muse Waterloo. Ms Xie claimed that Ms Huang would have known that other persons were interested before she paid the $8,000 deposit. Ms Huang agrees that she thought Ms Xie may be considering other offers: Exhibit A page 57. 18. It was put to Ms Xie that she had not had any discussions with Ms Huang in August 2017 in relation to opening a new shop, which she denied: T103.17. Ms Xie said that Ms Huang had raised the possibility of a new shop in August 2017 although she accepted that before the payment of $8,000 by Ms Huang, there had been no economic communications between them. There was, however, a mutual intent to open a shop. Ms Xie said there was a strong business or commercial intention by Ms Huang to open a shop especially from 24 December 2017. Ms Xie said that she had given up a dinner with an investor with "a lot of cash" to have the transaction with Ms Huang. The other investor was Ms Qiqi Li who had substantial funds to invest. Ms Xie said it was due to Ms Huang's skills and abilities that they did not go with Ms Li. When asked what the skills were of Ms Huang, Ms Xie said she had high persuasive skills such as in persuading Ms Xie to prefer her to Ms Li. Ms Xie also pointed to Ms Huang's past performance in selling beauty products. Ms Xie agreed that she did not ask Ms Huang in relation to her technical beauty skills and said that her understanding prior to 24 December 2017 as to Ms Huang's skills was limited to what she told her. She said that Ms Huang had indicated a commitment to learning and had a "deep understanding" of beauty products as she had been a significant supplier herself. 19. Ms Xie confirmed the accuracy of the conversation set out in paragraphs 11-13 of her first affidavit. She also confirmed that after the conversation in August 2017 with Ms Huang the next time they met was on 9 December 2017 at Zilver Restaurant. Ms Bai did not attend the meal at the restaurant. Ms Xie could not recall a WeChat interaction with Ms Huang on 25 November 2017 similar to that referred to in Ms Huang's first affidavit. It is noted that Ms Xie did not dispute the conversation on 25 November 2017 (Exhibit A page 52, paragraph 5) in her responsive affidavit at Exhibit A page 389, paragraph 17. Ms Xie said in her evidence that she did not deny that there was a WeChat conversation on that date but denied that the content of the WeChat conversation was as indicated in Ms Huang's affidavit. 20. Ms Xie accepted that Ms Huang told her on 9 December 2017 that she intended to attend two weeks of beauty classes in Korea and was learning to become a beautician. Ms Xie denied the version of the 9 December 2017 meeting as set out in paragraph 12 of Ms Huang's first affidavit. 21. Ms Xie was then asked a number of questions in relation to the progress in the negotiations to take a lease at the Muse Waterloo shop. Ms Xie accepted that she was undertaking negotiations in early December 2017 but disputed that the negotiations were "well advanced". Ms Xie accepted that a lease was signed for the Muse Waterloo premises on 8 December 2017: see Exhibit 1. Ms Xie said that she made her mind up to prefer Ms Huang over Ms Li on 24 December 2017 when Ms Huang paid the $8,000 as directed. She accepted that prior to 24 December 2017, whilst there was no commitment to an investment by Ms Huang, there was a strong intention to invest. Ms Xie agreed that by the time of her alleged agreement with Ms Huang she had already started to take steps relating to the fit out of the Muse Waterloo premises. She also accepted that she got the keys to the Muse Waterloo premises not long after the 8 December 2017 lease for the premises was signed. Ms Xie accepted that prior to 24 December 2017 when she had received the money she had no intention to enter into a joint venture with Ms Huang. Ms Xie denied that she was pursuing Ms Huang to get her to open a shop with her despite the 4 December 2017 WeChat exchanges at Exhibit A page 119. Ms Xie accepted that on 4 December 2012 she knew that Ms Huang was flying to South Korea on 3 January 2018 and returning on 15 January 2018. Ms Xie also accepted that by this time she had formed the intention to open up a new shop in Waterloo. Ms Xie denied that her method of business was to open up stores and find people to operate them for her by contributing money or labour in exchange for a shareholding. 22. The importance of this evidence is that Ms Xie and Ms Bai had decided to open the Muse Waterloo shop well prior to any alleged agreement with Ms Huang. A lease had been signed by Muse Waterloo on 8 December 2017: Exhibit 1. An agreement was entered for a fit out of the premises on 7 December 2017: Exhibit A page 614. Therefore Ms Xie, Ms Bai and Muse Waterloo had committed themselves to the Waterloo shop well prior to the meeting with Ms Huang on 24 December 2017. This is potentially relevant to the change of position defence in relation to Ms Huang's restitution claim. 23. There was then extensive cross-examination in relation to Ms Xie's interaction and dealings with Ms Kitty Lo. Ms Xie confirmed that she knew Ms Lo and attended at a shop run by her in 2017 for the purposes of obtaining therapeutic body massages. She denied that she "pursued" Ms Lo to come to work at the Muse City store. She also denied that in September 2017 she attended Ms Lo's shop in an endeavour to persuade her to join the Muse City store. Ms Xie accepted that she was aware that Ms Lo had a Diploma of Beauty Therapy as it was displayed on the wall of Ms Lo's shop. She could not recall whether she used Ms Lo's name for the purposes of obtaining insurance for the Muse City shop because Ms Lo had a Diploma. Ms Xie accepted that Ms Lo started working for her and became a shareholder in Muse City. She said she understood the share structure would be 70% of shares to her and Ms Bai and 30% of the shares to Ms Lo. In addition, she accepted that the agreement was to pay Ms Lo a base salary and a share of the profits. Ms Xie denied that she wanted Ms Lo to become an investor and shareholder in the Muse Waterloo shop. She also denied that Ms Lo was to contribute the equipment and products which she had to the Muse City shop. Ms Xie denied, in particular, that she understood that Ms Lo had a 3,000 WeChat customer base. Instead Ms Xie said that she was of the view that Ms Lo's shop was on the verge of collapse. 24. Whilst Ms Xie agreed that she provided instructions to her solicitor to prepare a document in relation to providing a shareholding to Ms Lo, she did not know whether the version annexed to her affidavit or that annexed to the affidavit of Ms Lo was the signed version: see Exhibit A page 236 and Exhibit A page 452. 25. Ms Xie stated that she believed that Ms Lo was issued 86 shares in Muse City with Ms Bai and her each holding 100 shares. She agreed that she was the person who gave instructions to accountants and lawyers to update the records of Muse City including with ASIC. Ms Xie was taken to a company search of Muse City dated 10 April 2018 at Exhibit A page 84 which indicated that she was the director and secretary of Muse CBD and the only shareholder with 100 shares. Ms Xie accepted that the records had not been updated as at the date of the company search but Mr Li, her then solicitor, had instructions to do so and she depended on him. She said she could not recall when Ms Lo became a shareholder of Muse City. She could not explain why the shareholding of Ms Lo was not revealed in the company search of Muse City at Exhibit A page 86 as at 10 April 2018. She denied that she made up in the witness box an answer which suggested that there were delays in her lawyer and accountant responding to her instructions to change the company's records and that some time was needed for this. She also denied the suggestion that she did nothing to record Ms Lo's interest in Muse City and made a conscious decision to do so. She also rejected the proposition that she claimed that Ms Huang had a recorded shareholding in Muse Waterloo to advance her claim that there was a concluded agreement with Ms Huang when there was none. 26. Ms Xie accepted that Ms Lo did provide some equipment and products which she moved to the Muse City store. However, she disputed that Ms Lo brought a substantial client base. She gave evidence that Ms Lo was issued shares because of her beauty certificate qualifications. Ms Xie denied that an offer had been made to Ms Lo to invest in the Muse Waterloo business for $130,000 and said that Ms Lo was too old to be involved: T147.20. She also denied that she pursued Ms Lo to obtain a $60,000 investment until she handed the $60,000 over to Ms Xie. Ms Xie did not accept that she and Ms Bai needed $60,000 from Ms Lo and said they only needed her beauty qualifications. She denied ever taking $60,000 from Ms Lo or that Ms Lo gave her that sum for 15 shares in Muse Waterloo and an agreement for her to be employed in the business. 27. Ms Xie was then cross-examined about a receipt for $60,000 at Exhibit A page 233. Ms Xie accepted that the handwriting on the receipt looked similar to her handwriting but she denied writing or signing it: T149.48-T150.22. When shown the receipt provided to Ms Huang at Exhibit A pages 66 and 276, Ms Xie agreed that her handwriting was on the receipt with Ms Bai's. She agreed that the Lo receipt handwriting was very similar to the receipt provided to Ms Huang but denied signing the receipt for $60,000 in both Chinese characters and English characters. She also denied signing the receipt at Exhibit A page 233 as Ms Lo had complained to her that the contracts did not record her investment of $60,000. 28. Ms Xie was then taken to the alleged receipt at Exhibit A page 233 and agreed that it was in the style of the receipts provided in the Muse City and Muse Waterloo shops: T158.10. Ms Xie's attention was then drawn to the number on the receipt at Exhibit A page 233 (ZE8929901 dated 28 November 2017) compared to two other receipts attached to Ms Xie's affidavit evidence provided by her at Exhibit A page 310 (receipt number ZE8929907 dated 21 April 2018) and at Exhibit A page 469 (receipt number ZE8929931 dated 23 November 2018). Ms Xie accepted that the receipts at 233 and 469 of Exhibit A had the same sequence of numbers and that similar receipts were provided to persons who worked in the two shops. It should be noted that the three receipts are similar in appearance, have receipt numbers that accord with the dates on each receipt (being chronological to the receipt number) and the receipt at 233 is similar to receipts conceded by Ms Xie as being provided by her at Exhibit A pages 310 and 469. Despite this significant evidence, Ms Xie maintained her position that she did not receive $60,000 from Ms Lo. She expressly rejected the proposition that she wrote out the receipt and provided it to Ms Lo as she (Ms Lo) had wanted some proof that she had given Ms Xie the $60,000. See also Exhibit 2 which was an original duplicate copy of what appears to be the receipt at Exhibit A page 233. 29. Ms Xie was then asked a number of questions in relation to the shareholder's agreement at pages 451-467 of Exhibit A between her, Ms Bai, Muse City and Ms Lo. Ms Xie said that she obtained a copy of this agreement from her email box which she forwarded to her solicitors for them to print it off. Ms Xie said that she never obtained a copy of the signed agreement whilst accepting that she signed the agreement at the office of Sun Lawyers. Ms Xie said there should be signed copies of the agreement on the Sun Lawyers file but she did not know whether there were. 30. Ms Xie was then shown a number of documents that in due course became Exhibit 3 in the proceedings. These documents were a signed share subscription and accession agreement and a shareholders' agreement between various parties in the Xie interests and Ms Lo all dated 29 November 2017. Whilst initially, Ms Xie said the signature on the first document looked quite similar to her signature, although she did not recall signing it, she accepted that it appeared that her signature was witnessed by a person called "Gen Li". Ms Xie could not recall who this person was (it was Ms Xie's own solicitor). Ms Xie accepted that the signatures on the agreement were similar to the signature on the receipt at Exhibit A page 233 but disagreed that it was her signature on the $60,000 receipt at Exhibit A page 233. Ms Xie also denied that the signed documents and the receipt at Exhibit A page 233 were given by her to Ms Lo. At the end of the cross-examination on this issue, Ms Xie accepted that the two agreements in Exhibit 3 were signed by her and were the final version of the document at Exhibit A page 451 included by her with her affidavit evidence. 31. Ms Xie accepted that at no stage did she record Ms Lo's shareholding pursuant to the two agreements with ASIC. She also accepted that she never told Ms Huang that she had a co-shareholder in Muse City but merely introduced Ms Kitty Lo to her as a manager. Ms Xie denied that she entered into discussions with Ms Kitty Lo about a $60,000 contribution by her to the opening of the Muse Waterloo shop and then changed her mind as to the contribution as she had initiated discussions with Ms Huang in 2017. 32. Having regard to the cross-examination of Ms Xie, the similarities in the style of receipts at Exhibit A pages 233, 310 and 469, the sequence numbering of the receipts at Exhibit A pages 233, 310 and 469 and the similarities of the signatures asserted to be that of Ms Xie and Ms Bai on the receipt dated 28 November 2017 at Exhibit A page 233, I reject the evidence of Ms Xie and Ms Bai that the receipt at Exhibit A page 233 was not provided to Ms Lo and find that the receipt was provided to Ms Lo on or about 28 November 2017 by Ms Bai. I reject the contrary submissions of the Xie interests on this issue: responsive written submissions paragraph 42. I consider this issue further later in these reasons. 33. Ms Xie was then asked a number of questions about the $8,000 and the $60,000 which she received from Ms Huang. Ms Xie confirmed that the $8,000 paid by Ms Huang that was placed in her mother's account was withdrawn and used toward the fitout of the Waterloo Shop: T89.49. 34. Ms Xie also confirmed that on 15 January 2018 she received $60,000 in cash from Ms Huang. Ms Xie said that she provided a signed receipt for the $60,000 cash with Ms Bai at her request as it was the first time she had received such a large amount of cash. Ms Xie said that in relation to the $60,000 received from Ms Huang, some of it was put toward the fitout of the Muse Waterloo shop and some of it was transferred into Chinese currency to purchase equipment for the shop. Ms Xie said the $60,000 in cash was never deposited into a bank account of Muse Waterloo. She confirmed that she did not give the $60,000 to her solicitor to hold on behalf of the company. She also confirmed that even though Ms Huang had given her $60,000 in cash no signed agreement was entered into by Ms Huang with Muse Waterloo or with Ms Xie. 35. Ms Xie was asked why she used Ms Huang's $60,000 even though there was no signed agreement and she claimed she and Ms Bai had "lots of cash available": T176.1. Ms Xie said that they "almost came to a closure" but accepted that she started to spend the $60,000 soon after she received the money as the parties were close to printing and signing the agreement: T176.8 cf T180.29. Ms Xie asked that if there was no agreement between the parties why was she given $60,000? She denied that she was paid the money to demonstrate a willingness on the part of Ms Huang to sign an agreement once all the terms were included as well as Ms Huang undertaking an inspection of the operations of the Muse City shop. Ms Xie said she did not agree to such an inspection including of the City shop's operations and turnover. Ms Xie said the agreement was reached on the basis that there was already the City store and the purpose of the agreement was to open a new shop with Ms Huang and her to trade together. 36. It was put to Ms Xie that she had made representations to Ms Huang in initial discussions in relation to the existence of a substantial client data base. Ms Xie said that she had told Ms Huang that she had a lot of clients on WeChat but denied that she asserted that she had a software system in place to allow the sharing of the client base and would allow Ms Huang to inspect the books and records of Muse City to satisfy herself in relation to its turnover. Ms Xie said that she informed Ms Huang that some of her clients travelled to the city and once the Muse Waterloo shop was opened they would use the services of the local store rather than travelling to the city. She denied that her affidavit evidence of the printer ink running out on 15 January 2018 when she was attending the home of Ms Huang was made up by her: see 8 June 2021 affidavit paragraph 11. Mr Nam later stated that he did not have a printer at his home at the time. 37. Ms Xie was then asked a number of questions about the asserted issue of shares in Muse Waterloo to Ms Huang. She agreed that she had not produced the share register of Muse Waterloo, any minutes relating to a resolution to issue shares to Ms Huang in Muse Waterloo or any share script itself. Ms Xie said she gave instructions to her accountant to arrange the issue of the shares to Ms Huang. Ms Xie said the accountant was responsible for the issuing of the shares and the date of issue of 28 December 2017: see Exhibit A page 263. Ms Xie confirmed the contents of paragraph 29 of her 10 June 2020 affidavit (Exhibit A page 391) including the share register applications were completed by her on 29 January 2018. Ms Xie conceded that she did not have a share application signed by Ms Huang as she did not sign an application to issue shares to her. Despite this, Ms Xie said that the issue was completed on 29 January 2018 but the instructions to do so were given prior. Ms Xie rejected the proposition that she instructed the accountant to register a share transfer on 29 January 2018 after Ms Huang gave notice that she wanted her money back and in order to seek to establish evidence of a concluded agreement where there was none. 38. Ms Xie confirmed that she instructed her accountant, Ms Frank Li, to lodge the share issue forms but did not recall whether it was after she received the $8,000 or the $60,000 from Ms Huang. She said she telephoned the accountant whilst driving home on the freeway after receiving the money. This should be compared to paragraph 29 at Exhibit A page 391 where Ms Xie claims that she instructed the accountant to register the new shares shortly after receiving the $60,000 payment on 15 January 2018. After further cross-examination, Ms Xie expressed the belief that although she was not sure when she gave instructions, she believe she gave them to the accountant after she received the $8,000 deposit on 24 December 2017. This is inconsistent again with paragraph 29 of her affidavit on page 391 of Exhibit A. Ms Xie agreed that she understood there was no concluded agreement with Ms Huang on 24 December 2017 when she was paid the $8,000 deposit by bank transfer by Ms Huang: T190.23. Ms Xie said the agreement was formed on 15 January 2018. Ms Xie denied the proposition that she never telephoned her accountant to issue shares to Ms Huang on 24 December 2017, 15 January 2018 or at any time before 29 January 2018. She also rejected the proposition that she told her accountant to quickly lodge the forms to make sure her account of a concluded agreement was believable and that was why the lodgement was rushed on 29 January 2018 with the date of the issue being recorded as 28 December 2017. 39. Ms Xie agreed that she did not keep a formal share register for Muse Waterloo as at 28 December 2017: T184.25; T194.17. She understood that her accountant kept a formal share register on her behalf: T194.25. Ms Xie agreed on her understanding that she had no reason to tell her accountant at any time up to 29 January 2018 to register the issue in the Muse Waterloo company share register if he did not keep a formal share register on her behalf: T196.4. 40. Following the cross-examination of Ms Xie in relation to the alleged issue of shares in Muse Waterloo to Ms Huang, Ms Xie was asked questions about the issue of shares to Ms Kitty Lo and Ms Cindy Liu. Despite having signed contracts relating to the issue of shares to Ms Lo and Ms Liu which involved the issue of shares in Muse City and Muse Waterloo (in both companies in the case of Ms Liu), Ms Xie accepted that she never took any steps to have Ms Liu or Ms Lo registered as shareholders in the relevant Muse companies at ASIC, other than instruct her accountant: T203.16. Ms Xie said that she gave instructions to her accountant Frank Li to issue the shares and he must not have taken the relevant action. Ms Xie claimed that Mr Li, her accountant, strongly advised her against the issue of shares to Ms Liu due to an alleged threat made by Ms Liu to Ms Xie: T203.38. Ms Xie denied the proposition that she gave no instructions to her accountant to update ASIC records or to issue shares in Muse City or Muse Waterloo in relation to the proposed issue of shares to Ms Lo and Ms Liu: T203.48-T204.16. She also rejected the proposition that the only reason why steps were taken to issue shares to Ms Huang was to give the appearance of a concluded agreement with Ms Huang where there was no concluded agreement: T204.5-.24. 41. Ms Xie was then taken to the ASIC records relating to the issue of shares to Ms Huang: Exhibit A pages 262-263. She accepted that despite being paid $68,000 by Ms Huang that the amount paid per share on the ASIC records was indicated as zero with the amount unpaid per share being $5,520 per share. The record later indicated that the total amount paid for the 25 shares was zero with the total unpaid was $138,000: Exhibit A page 263. 42. Ms Xie agreed that the record was incorrect even on her version of the facts: T205.5-.12. 43. I found Ms Xie's evidence on this topic to be particularly unpersuasive. It is clear that even on her version of the facts, the ASIC records were inaccurate and Ms Huang had paid at least $68,000. Accordingly, the amounts for the total of money paid and unpaid were inaccurate. Even on her account, it suggests that she either gave incorrect instructions to her accountant or he prepared the documents incorrectly. That is despite the fact that Ms Xie appears to have certified that the information in the form was correct: Exhibit A page 262. 44. Ms Xie agreed that she took no steps to cancel the shares apparently issued to Ms Huang and did not issue Ms Huang with minutes of meetings, notice of an annual general meeting or accounts for the financial years ending 30 June 2018 and 30 June 2019. Ms Xie said that this was because of the legal proceedings, Ms Huang's failure to perform her duties and the fact that she had blocked Ms Xie on social media accounts: T207.26; T207.43; T209.22-.33. Ms Xie denied that her claims about the failings of her accountant were untrue: T211.1-.4 and T211.26. Ms Xie rejected the proposition that she never instructed her accountant that she had $68,000 in paid up capital because she had no intention of ever reflecting the truth in the financial records of Muse Waterloo: T213.28. 45. In relation to the agreement to issue Ms Liu with shares and then the further agreements to purchase back the shares, Ms Xie agreed that there was no new share issue to Ms Liu and that she never recorded the share transfer to Ms Liu: T220.1-.8. Ms Xie also confirmed that she never informed Ms Huang that she transferred her (Ms Xie's) shares in Muse Waterloo to Ms Liu: T220.12. 46. Ms Xie was then asked about her evidence that Ms Kitty Lo was not a person who was "presentable" for the Waterloo shop and she did not want her to be working at the Muse Waterloo shop: T220.43-T221.3. Despite this, Ms Xie agreed that Ms Liu and Ms Kitty Lo were both present at the opening of the Muse Waterloo shop in April 2018 and Ms Lo was shown as being part of the staff at the Muse Waterloo shop: see the photographs in Exhibit 4. Ms Xie said that every member of staff including at the Muse City team was present at the opening. Ms Xie rejected the proposition that she asked Ms Kitty Lo to train the staff at the Muse Waterloo shop and said that she never trained the staff there. 47. Ms Xie was asked questions about the non-renewal of the lease for the Muse City store. She agreed that the lease was for two years and expired on 31 January 2019 and that she did not renew the lease. She said that the building was about to be demolished and that she was in arrears on the rent for a period as there were expenses including covering Ms Lo's wages. Ms Xie denied the contents of Ms Lo's affidavits and said that the Muse City store was shut before December 2018. 48. Ms Xie was then asked a number of questions about the important 24 December 2017 brunch meeting at a Chatswood café. She said that the meeting took two to three hours at most which included a lot of general conversation and a discussion of the plans relating to the Waterloo shop. In relation to earlier meetings, Ms Xie agreed that while she denied the contents of the alleged conversation with Ms Huang on 25 November 2017, she did not deny that a conversation with Ms Huang occurred on that date: Exhibit A page 389, paragraph 17. Similarly, Ms Xie stated that she did not deny that a meeting occurred on 9 December 2017, but denied Ms Huang's version of the meeting: Exhibit A page 390, paragraph 20. Ms Xie confirmed that her mother was also present at the 9 December 2017 meeting and was introduced as such: T230.22 and T230.45 and T231.8. Ms Xie denied describing her mother as her business partner: T231.23. 49. Ms Xie denied that she made any representations as to the likely turnover of the Muse Waterloo shop. She confirmed paragraph 21 of her affidavit at page 390 of Exhibit A that the only information she provided to Ms Huang between the 9 December 2017 meeting and the 24 December 2017 meeting was that the Muse City shop's turnover was around $200,000 to $300,000 per year. 50. Ms Xie was asked a number of questions about the method of valuing a 20% shareholding in Muse Waterloo in the light of the discussions with Ms Qiqi Li. Ms Xie said that Ms Li was willing to pay $180,000 for a 20% shareholding in Muse Waterloo. Ms Xie accepted that she and Ms Bai were marketing a 20% share in Muse Waterloo for $180,000: T234.13. Ms Xie appeared to accept that the overall value of the Muse Waterloo business must have been at least $900,000 in the mind of Ms Li: T233.10. Ms Xie accepted that she never disclosed to Ms Huang or her husband how much it was costing her to fit out the Muse Waterloo shop: T234.22. Ms Xie denied ever telling Ms Huang that it was going to cost $350,000 to $400,000 to fit out the Muse Waterloo shop: T234.32. Ms Xie said that in substance what she said to Ms Huang was that the City store had nothing to do with the Muse Waterloo store in terms of its likely turnover: T234.39. In answer to the proposition that there was no information on which Ms Huang could form the view that the offer of $138,000 was reasonable, Ms Xie said that Ms Huang approached her based on the volume of orders for beauty products which they placed with her: T236.30. Ms Xie also noted that the Muse Waterloo shop was an "unfinished shop": T236.3. Ms Xie then denied that the basis of the offer by Ms Huang was due to representations made by her relating to a client base, software at the Muse City store to allow the sharing of that client base with Muse Waterloo, represented turnover of Muse City being $600,000 per annum and a written agreement reflecting the fact that Muse Waterloo could enforce its rights to use the Muse City database. The right to inspect the books and records and the database of Muse City was also denied by her: T237.3-T238.32. Ms Xie denied that following the representations put to her, Ms Huang then gave her the $8,000 and a further $60,000 which Ms Huang described as "refundable deposits": T239.10-.18. 51. Ms Xie was asked a number of questions about her correspondence with her solicitor, Mr Li, between 24 December 2017 and 30 December 2017: Exhibit A pages 497-498. It was put to her, which she denied, that the email correspondence, particularly the email on 24 December 2017, indicated that no binding agreement had been reached on 24 December 2017 with Ms Huang. Ms Xie agreed she gave instructions to Mr Li on 24 December 2017 after she concluded her conversations with Ms Huang set out in paragraphs 17-19 of her first affidavit: Exhibit A pages 251-252. Ms Xie accepted that she intended any agreement to be reduced to writing. She also agreed that there were likely to have been oral discussions with Mr Li in addition to the emails in evidence. 52. It was put to Ms Xie that she never went to Ms Huang's house on 28 December 2017 and gave her the first draft of the agreement prepared by Mr Li. She denied that, and said she went by car using her car navigation system. 53. Ms Xie was then asked a number of questions in relation to her last affidavit, affirmed 8 June 2021. In paragraph 3 of that affidavit, Ms Xie states that Ms Huang gave her a name and address for inclusion in the contract to be prepared by Ms Xie's lawyer which she sets out as being "Yew Mun Nam 45 Oakhill Crescent Rosebery, Colebee, 2761". Ms Xie states that at that time she only knew Ms Huang by the name "Jessie" and not by her full Chinese name and believed that the name she was given was Ms Huang's name. She accordingly gave those instructions to her solicitor Mr James Li to prepare the share subscription contract with that name as the shareholder and worker at the proposed Muse Waterloo shop. 54. In her oral evidence, Ms Xie claims that she was given the name and address in writing, she believed on a paper from the menu at the cafe: T262.35. She said she had since lost the document. She believed Ms Huang wrote the address out. As this was not reflected in the emails at Exhibit A pages 497-498, Ms Xie believed that she telephoned Mr Li and gave him that information: T264.14. 55. It was put to Ms Xie by counsel for the Huang interests, in effect, that this evidence was fabricated by her and that all she did was take the name and address from the draft contract which commenced at page 9 of her affidavit affirmed 8 June 2021 at page 10 which had been incorrectly inserted by Mr Li. It was suggested that Mr Li had merely put Mr Nam's name and address on a previous version of a contract prepared by him relating to Ms Lo and Ms Xie had merely incorrectly copied that into paragraph 3 of her 8 June 2021 affidavit. Some support for that contention is provided by the continued reference to "Lo" in paragraph 5.1 of the draft. Ms Xie accepted that at no stage did Ms Huang or Mr Nam tell her or write down that they lived at Rosebery: T264.38. Although claiming in her evidence that Ms Lo was not relevant (T265.4), Ms Xie accepted that the reference to "the agreement of your another salon [sic]" at Exhibit A page 498 in the 25 December 2017 email from Mr Li was understood by her to be a reference to the agreement with Ms Lo. Despite these matters, Ms Xie continued to assert that the name and address referred to in paragraph 3 of her 8 June 2021 affidavit was given to her by Ms Huang at the 24 December 2017 meeting. She denied that the paragraph was not true: T267.22; T269.29. Ms Xie further denied that she obtained the information relating to Ms Huang's address from other WeChat messages with Ms Huang. None of these WeChat messages referred to Ms Huang or Mr Nam as living at Rosebery. Ms Xie denied that she was given the name and address information on 25 December 2017 by way of WeChat and not in accordance with paragraph 3 of her 8 June 2021 affidavit: T270-271 and Exhibit 6. 56. Ms Xie agreed that she knew that things needed to be put in writing so that each of the parties was happy with the agreement before any concluded agreement was reached: T271.14. Ms Xie also agreed that she wrote the words "draft agreement" in the WeChat messages because she knew that there was no concluded agreement on 24 December 2017 or at any time up until 25 December 2017: T271.14. This evidence was directly contrary to her case that there was a concluded agreement on 24 December 2017. 57. I found Ms Xie's evidence in relation to paragraph 3 of her 8 June 2021 affidavit to be most unsatisfactory and I reject it. I accept the premise in the line of questioning that in fact she took that address from the draft agreement prepared by Mr Li which was annexed to her affidavit and not as she states in paragraph 3 of the affidavit. The coincidence between paragraph 3 and the incorrect address in the draft contract is too great to be a common mistake. I find it to be virtually impossible that Ms Huang or Mr Nam gave their name and address as including the word "Rosebery". I find Ms Xie fabricated her evidence on this matter. 58. Ms Xie was then taken to the WeChat exchange at Exhibit A page 144 and it was put to her that that was how she got the address at Colebee. See also the 28 December 2017 email at Exhibit A page 497. 59. Ms Xie was then taken to the WeChat exchange at Exhibit A page 425. She was taken to the entry where she asked Ms Huang for her address which was provided. It was put to Ms Xie, which she denied, that she asked for the address as she had not been at the house before, including on 28 December 2017. It was put to Ms Xie that this was reflected in the WeChat exchange at Exhibit A page 423 in screenshot four where she stated to Ms Huang: "we will take the latest price list and contract to you when you come back". Despite the error in the address and the reference to Ms Lo in the draft contract, Ms Xie accepted that at no point did Ms Huang or Mr Nam get back to her via WeChat or in any other way saying that the document was wrong in a number of respects: T281.30. However, she denied the proposition that that was because she had never left any contract with them on 28 December 2017 because she never attended their house on that date. 60. In relation to Ms Huang's interaction concerning pricelists and business cards, Ms Xie denied that she and Ms Bai encouraged that interaction so that Ms Huang would engage on those topics and not because there was a concluded agreement: T281.40. 61. Ms Xie accepted that she never gave the re-drafted version of the contract to Ms Huang but that was because it was her mistake in giving the first draft to them on 15 January 2018: T283.20. Ms Xie also accepted that between 30 December 2017 and 15 January 2018 she did not tell Ms Huang that she had an updated version of the contract. 62. Ms Xie was then asked questions about the 15 January 2018 meeting at Ms Huang's house. It was put to her that she took a photo of the house and sent it to Ms Huang to ask her if it was the correct house because she had never been there before including on 28 December 2018. This was denied: see Exhibit A page 144. Ms Xie also denied that the corrected version of the 15 January 2018 meeting set out in paragraphs 10 to 12 of her affidavit affirmed 8 June 2021 was incorrect. She denied that Ms Huang only paid her $60,000 in cash as they did not have the $130,000 to give to her. She denied that Ms Huang offered the $60,000 in cash as a refundable deposit which was dependent on her committing to a final contract when it was provided: T286.12. It was put to Ms Xie that the cash was handed over and it was counted by her and Ms Bai before they handed over the version of the contract at 2:25pm on 15 January 2018: Exhibit A page 70. Ms Xie said she was not sure if they counted the money first or sent the contract first. She accepted that it was possible that the money was handed over, counted and then the agreement was provided followed by the receipt: T287.42 and T288.3. Ms Xie accepted that they then went to inspect the status of the fit out of the Muse Waterloo shop and left the Colebee house at about 2:52pm. She denied that Ms Huang and Mr Nam had no time to review the re-draft the agreement forwarded at 2:25pm and that the claims that they went upstairs to print it never happened. She denied that the $130,000 was never offered and said she did not want to take it because she felt uncomfortable with that sum of money in cash. 63. Ms Xie accepted that Ms Huang attended her house on 20 January 2018 but denied that she attended as Ms Huang wanted to discuss the proposed contract and was waiting on the correct version naming her: see the WeChat exchange at Exhibit A page 435. Ms Xie denied that there had not been any real discussion between them as to Ms Huang's hours of work and wages in the light of the fact that she had a young child to look after. 64. Ms Xie was taken to a WeChat message at Exhibit A page 122 with a reference within it to Ms Huang wanting to make an appointment over the 26 January 2018 long weekend "to discuss the contract details". Ms Xie said that this was to discuss a draft employment contract not the re-draft of the contract to acquire the shares sent on 15 January 2018. 65. The version given by Ms Xie of the WeChat exchange is doubtful and I reject it. I accept the Huang interests submissions on this issue. The WeChat exchange at Exhibit A page 122 refers to meeting over the long weekend "to discuss the contract details". However, Ms Xie in her affidavit claims that the employment contract was handed to Ms Huang on 26 January 2018: Exhibit A page 394, paragraph 47(b). It seems very unlikely that Ms Huang would seek to meet to discuss the employment contract as opposed to her own contract. At the time of the WeChat message it appears she had not yet received the redrafted contract. 66. Ms Xie was then asked about a WeChat message she sent to Ms Huang on 22 January 2018 in which she stated: "I ask the lawyer to revise the document this morning": Exhibit A page 541. It was put to Ms Xie that this WeChat message confirmed what Ms Xie had said to Ms Huang at the meeting which occurred on 20 January 2018. Ms Xie denied that. When Ms Xie was asked what documents needed to be revised other than the proposed contract with Ms Huang, Ms Xie identified numerous documents including the staff employment contract. It was pointed out to Ms Xie that the WeChat message referred to "the document" and that the only relevant document of concern to Ms Huang was the share subscription contract, the final draft of which had not yet been provided to her. Ms Xie accepted that the only document referred to in evidence in interactions between her and Mr Li, her solicitor, was the share subscription contract with Ms Huang or Mr Nam: see Exhibit A pages 495-498. Ms Xie also accepted that there were no other message exchanges with Mr Li up to 15 January 2018 in which any employment contract which had been drafted or created by him was referred to. However, she denied that no employment contract was in existence up to 28 January 2018. She also denied that the only document relevant to Ms Huang in existence as at 22 January 2018 was the share subscription contract and not any employment contract. Ms Xie accepted that she never gave to Ms Huang on 15 January 2018 an employment contract to consider. She said that as at January 2018 they were interviewing people to be employed for the Muse Waterloo shop and had a "soft opening" of the shop in February 2018 before the grand opening in April 2018. 67. Ms Xie confirmed her evidence that on 26 January 2018, she and Ms Bai met with Ms Huang at the Muse Waterloo shop and she handed her a copy of the employment contract annexed to her second affidavit: Exhibit A page 394, paragraph 47(b). There was then extensive cross-examination of Ms Xie in relation to the document referred to in paragraph 47(a) of Ms Xie's second affidavit which was the employment contract annexed and marked "F". The document in question which was annexed was dated 2019 and was signed by an employee and Ms Bai. The reference to "Muse Beauty Water" on page 1 of the contract (Exhibit A page 474) was said by Ms Xie to be a typographical error. However, it is noted that various parts of the contract were not completed: see Recital A, Clause 2(g), Clause 3 and various parts of Schedule 1. Ms Xie in her evidence said that this contract was used as an example of the employment contract handed over. Ms Xie denied that the employment contract which was Annexure F at Exhibit A page 471 did not exist in 2018 up to 28 January 2018 and was included by her only to "explain away" the WeChat messages on 22 January 2018. 68. Ms Xie was taken to the balance sheet for Muse Waterloo and could not identify the loan for $54,848 referred to as at 30 June 2019. Ms Xie said that Ms Bai was in charge of the accounts. Although she gave instructions to the accountant, Ms Bai was in charge of the accounts according to Ms Xie on a day-to-day basis. Ms Xie denied that she took Ms Huang's $68,000, mixed it with her own money and used it to pay for the fit out. She also denied that Ms Bai wanted to give the $68,000 back to Ms Huang and that the person who stopped that was her, Ms Xie. 69. Ms Xie was asked further questions about the refund of the money to Ms Cindy Liu. She agreed that Ms Liu signed a contract to purchase two lots of shares from Ms Xie and Ms Bai. The two contracts of purchase were not put into evidence by Ms Xie. Ms Xie agreed that there was nothing in the ASIC company records to show the transfer of the shares to Ms Liu. She agreed that by May 2018 Ms Liu requested her money back and claimed that Ms Liu made threats to her. However, Ms Xie accepted that the email from Ms Liu to her solicitor, Mr Li, sent on 9 May 2018 could not be seen as containing any threats or pressure: Exhibit A page 204. She also agreed that there were no file notes or other evidence from Mr Li she was aware of suggesting the refund was due to pressure. Ms Xie denied that the reason for the refund was not pressure from Ms Liu but the fact that Ms Liu had realised she had been provided misleading accounts by Ms Xie. Ms Xie said that Ms Liu did not even know her accountant's name. 70. Ms Xie was then asked a number of questions about posts on WeChat which she alleged had caused substantial damage to her business and which founded her claim in the tort of injurious falsehood. Ms Xie agreed that she did not know who a number of the persons referred to in the posts were and accepted that the posts sometimes responded to calls by Muse Waterloo for employees: see Exhibit A page 559. Despite the post in question being directed at employees, Ms Xie said that customers could see it if they did a "Google search" for Muse Waterloo. Ms Xie agreed that she did not know the identity of the persons referred to in other posts including that it Exhibit A page 556. 71. Ms Xie was taken to paragraph 94 of her second affidavit in which she claimed that Ms Bai forwarded a post suggesting it was from Ms Huang in or about March 2018: Exhibit A page 411. Ms Xie agreed that the screenshot did not suggest the date was March 2018. When it was suggested that this was only due to "guesswork" as to the date, Ms Xie agreed and said it was based on her own personal speculation. She denied that she created the screenshot second appearing at Exhibit A page 556. She also denied that it had no date because she was attempting to create a post making criticism prior to Cindy Liu asking for her money back. Ms Xie denied that Ms Liu asked for her money back not due to posts which she had reviewed but due to financial records being provided to her which were not true. Ms Xie accepted, however, that most of the concerning posts appeared on their face to relate to former employees complaining. 72. Ms Xie was then asked about paragraph 115 of her affidavit at Exhibit A page 420 relating to allegations that Ms Huang and Mr Nam removed a skin testing machine from the Muse Waterloo shop. She denied that the allegation was false but agreed that she did not witness the machine being taken and was not at the shop at the time but was told by the manager of the shop, Selina. In the light of this evidence, it appears that little weight can be put on the allegation at Exhibit A page 420, paragraph 115. Selina, the former manager, was not called to give evidence. In the end, this claim was not pursued. 73. Ms Xie was then asked questions about why she sold the Muse Waterloo business. She denied that she sold the business as she had alienated staff, treated them badly and did not pay them. She said the business was sold because Ms Bai wished to return to China, she was pregnant and false stories had been told about her business in the WeChat posts which had "destroyed" it. Oral evidence of Ms Bai 1. Oral evidence was given by Ms Yuling Bai. 2. Ms Bai had travelled from mainland China to Macau for the purposes of giving her evidence. Her evidence was given by audio-visual link and in Mandarin. I take that into account in assessing her evidence. 3. Ms Bai gave the background to the various businesses opened by her and Ms Xie including a shop at Zetland and then the Muse City shop. She agreed that the Muse City shop was opened in early 2017 in an office suite in the city which had three rooms. Ms Bai gave evidence that she had obtained beautician qualifications in China which allowed her to undertake facials, skin testing and massage services. She accepted that she took no steps to determine whether her Chinese qualifications were accepted by professional bodies in Australia. 4. In relation to the Muse City shop, Ms Bai agreed that she and Ms Xie worked in the shop. She said that from April 2017, the shop became busy and always employed three to four people. She agreed that Ms Kitty Lo was an employee in the shop from November 2017. She asserted that Ms Lo could only provide basic services and that she and Ms Xie provided more comprehensive services at the shop including eyebrow tattooing. 5. Ms Bai denied that Ms Kitty Lo brought many clients to the Muse City business when she arrived and said that she did not have many clients. 6. Ms Bai was taken to the company search of Muse City at Exhibit A page 84. She claimed that she was a shareholder at all times of Muse City and could not explain why the company search at Exhibit A page 86 showed that she had previously been a shareholder and that Ms Xie had held all the shares from November 2016. As far as Ms Bai was concerned, nothing had happened to alter the shareholding, although she said Ms Xie was the biggest shareholder. She said she did not transfer her shares to Ms Xie as far as she was aware. Ms Bai also stated that she did not know why Ms Liu's purchase of shares in Muse City for $80,000 was not reflected in the ASIC records and said this was not her responsibility. She confirmed, however, that Ms Liu did have shares in Muse City. She said it was Ms Xie's responsibility for providing instructions to the accountant and the lawyer and she left it to her. 7. Ms Bai was asked numerous questions about the meeting on 24 December 2017. She agreed that she attended that meeting and this was the first time that she met Ms Huang. She agreed that Mr Nam may have delivered goods to the Muse City shop prior to that. She said she also realised that Ms Xie had been talking to Ms Huang in relation to the Muse Waterloo shop from around 9 December 2017 if not before, although she was not sure of the details. This evidence of Ms Bai was different to that of Ms Xie who claimed that Ms Huang had delivered the beauty products to the Muse City shop. However, Ms Bai did say that the acceptance of supplies of goods was the responsibility of Ms Xie. Ms Bai said that the records relating to the shop including financial records and supplier records were stolen by Kitty Lo. Ms Bai said that she did not give instructions to the accountant for Muse City and Muse Waterloo and could not access the bank records and this was Ms Xie's responsibility. 8. In her first affidavit, Ms Bai states that she was told by Ms Xie on 23 December 2017 (prior to the 24 December 2017 meeting), that Ms Huang wished to purchase a 20% shareholding in Muse Waterloo for the price of $138,000: Exhibit A page 678, paragraph 38. Ms Bai confirmed in her oral evidence that this conversation occurred before the 24 December 2017 meeting with Ms Huang and Mr Nam: T355.15-.19; T356.14; T358.27; T362.20. This evidence should be contrasted with Ms Xie's first affidavit where she has Ms Huang making the offer of $138,000 on 24 December 2017 during a telephone conversation with her after the meeting on that day: Exhibit A page 251, paragraphs 15-19, particularly paragraph 17. Ms Bai said that on 24 December 2017 Ms Huang only wanted to reconfirm the price: T364.43-.49; T365.11. 9. Ms Bai confirmed that at the meeting on 24 December 2017, Ms Huang, Mr Nam and Ms Xie were present and that it was her first meeting with Ms Huang: T367.1. The purpose of the meeting was to discuss the potential for Ms Huang to invest in the Muse Waterloo business. Ms Bai said that they did not need to look for investors and did not need the money but investors were seeking to invest in the business with them. She said that she and Ms Xie had all the necessary money to undertake the business by themselves: T371.33. 10. Ms Bai disputed that at the meeting on 24 December 2017, Ms Huang was never shown the proposed interior design for the shop. She said she showed it to Ms Huang who liked it very much. Ms Bai was taken to paragraph 20(c) of her first affidavit where she gives her account of the 24 December 2017 meeting: Exhibit A page 670. It was put to her that the affidavit did not mention the price for the shares. Ms Bai said this was discussed before between Ms Xie and Ms Huang, as she understood it on 23 December 2017: see paragraph 38 of Exhibit A page 678. When it was put to Ms Bai that providing an $8,000 deposit was illogical unless the price was discussed, she said that Ms Xie had already discussed the price. She accepted that during the meeting she was not paying attention at all times and was sometimes replying to clients. Whilst agreeing that she had divided attention, Ms Bai said that she was aware what Ms Huang and Ms Xie were talking about. She said that at the meeting she already knew the price of $138,000 which had been previously discussed. Again, this evidence should be contrasted with Ms Xie's affidavit which is inconsistent with it. 11. Ms Bai's attention was drawn to the last line on Exhibit A page 670 in which she records Ms Huang as referring to the $8,000 "as a deposit". She said the $8,000 was paid as Ms Huang wished to join her and Ms Xie. She denied that the $8,000 was refundable if no final agreement was signed by Ms Huang. 12. It was put to Ms Bai that in relation to her version of the 24 December 2017 meeting (Exhibit A page 670, paragraph 20(c)), if Ms Huang had had a discussion with Ms Xie about Ms Huang offering $138,000 on 23 December 2017 (Exhibit A, page 678, paragraph 38), Ms Huang would not have needed to ask at the 24 December 2017 meeting for a figure about how much money she should invest in the Muse Waterloo shop as she had already agreed the figure with Ms Xie the previous day. Ms Bai stated that on 24 December 2017, Ms Huang wanted to reconfirm the figure for the 20% share and the way her paragraph 20(c) was worded was a mistake. Ms Bai stated that her English was not good and that she was using a Chinese way of expression. However, she confirmed in answer to a question from the court, that she had the affidavits translated to her from English to Mandarin before she affirmed them: T365.38. She claimed to have misunderstood the affidavit. Ms Bai agreed that she had studied in Australia two tertiary courses for nearly nine years in design and marketing before returning to China. Ms Bai denied that she was making up her evidence that it was a mistake in expression: T366.41. 13. Later, Ms Bai was cross-examined about her reference in the 23 December 2017 conversation with Ms Bai to Ms Huang having "deposited $8,000": Exhibit A page 678, paragraph 38. Ms Bai said this was a mistake and she intended to convey that Ms Xie was told by Ms Huang that the latter intended to deposit $8,000: T368.47-T369.20. It seems difficult to see how Ms Xie could have told Ms Bai about the $8,000 deposit one day before it was actually made by Ms Huang, especially as on 24 December 2017, according to Ms Xie, there was a discussion about the quantum of the deposit. 14. Ms Bai was also asked about her suggestion in paragraph 20(c) of her first affidavit that she said words to the effect that she and Ms Xie "would like to lease this place to run our new shop" in circumstances where the lease had been entered into already on 8 December 2017: Exhibit A page 670, paragraph 20(c) and Exhibit 1. Ms Bai agreed that the lease was signed before 24 December 2017 and said that they were merely confirming they had located a shop: T401.28-T402.38. 15. I reject these various explanations for her affidavit evidence provided by Ms Bai. First, her affidavits were translated to her. The account which she gives which was said to have occurred on or about 23 December 2017 in paragraph 38 of her first affidavit is fundamentally inconsistent with that set out in paragraph 20(c) of her affidavit. If Ms Xie had mentioned a price of $138,000 and a deposit of $8,000 on 23 December 2017, her version of the 24 December 2017 meeting as set out in her first affidavit could not have occurred. Paragraph 20(c) clearly has Ms Huang asking for a figure and not a reconfirmation of the $138,000 price. The deposit of $8,000 was, on all the other evidence, made by Ms Huang on 24 December 2017 and thus could not have been mentioned the day before. In addition, the wording of Ms Bai's own comment about the lease is inconsistent with a lease having already been entered on 8 December 2017: see Exhibit 1. These matters raise fundamental concerns in relation to the reliability of the recollection of Ms Bai as to both her conversation with Ms Xie said to have occurred before the 24 December 2017 meeting and her account of the meeting itself. Ms Bai's assertion that she made a further mistake in the reference in paragraph 38 of her first affidavit that Ms Xie told her that Ms Huang had "deposited $8,000" was not in my view persuasive (see T369.4). 16. Ms Bai gave evidence that although they had the money to open the Waterloo shop, it was only when Ms Huang agreed to join them that they made the decision to open the shop: T371.33; .40; T372.25; T373.26. This evidence was reconfirmed in an answer to a question from the court. This evidence seems to be inconsistent with Exhibit 1 which shows that the lease was entered into on 8 December 2017. Ms Bai stated that although on her case there was no commitment from Ms Huang until 23 or 24 December 2017, earlier Ms Huang had made enquiries to join her and Ms Xie in the business in relation to opening a shop. It was put to Ms Bai that as at 8 December 2017, the date the lease was signed, there was no commitment from Ms Huang and that a price had not even been discussed. Ms Bai agreed that as at 23 December the deposit was not paid and it was only paid on 24 December 2017 when the price was confirmed. 17. When it was put to Ms Bai that the decision to set up the Muse Waterloo shop was made well before 24 December 2017 having regard to the design quote and the acceptance of the building quote on 7 December 2017, Ms Bai claimed that it was only when it was clear that either Ms Qiqi Li or Ms Huang were going to join that she and Ms Xie started to prepare for the shop. This evidence appears inconsistent with the evidence about the accepted quote and the lease: see Exhibit A pages 585-606; pages 608-614 and Exhibit 1. 18. Ms Bai was then asked a number of questions in relation to her training material which she said was very secret and which appears in Exhibit A at pages 720 to 728. She denied that it was material readily available from manufacturers or that it was created for the purpose of the case. Ms Bai claimed that the material was used by Ms Huang in opening another shop but agreed that she had never been to the shop and did not know where it was. 19. Ms Bai rejected the suggestion that she wished to repay the money advanced by Ms Huang to Ms Huang but Ms Xie had refused. She also rejected the suggestion that there never existed a person called Qiqi Li willing to pay $180,000 for the business. She said Ms Li had given an affidavit for the purposes of the proceedings but was soon to give birth and did not wish to give evidence. 20. Ms Bai was then taken to the balance sheet for Muse Waterloo: T399. She agreed that the financial records showed that $103,609 had been spent on office renovation in the financial year ending 30 June 2018 with additional money spent on equipment amounting to $32,806 for the financial year ending 30 June 2019. Ms Bai could not explain why the $68,000 paid by Ms Huang was not reflected as paid-up capital in the accounts. She also could not explain who the loan was from which was unattributed in the accounts for $118,758 for the year ending 30 June 2018. 21. Ms Bai gave evidence that she and Ms Xie attended a meeting with Ms Huang at her house on 28 December 2017 where they gave her a draft of the contract. Ms Bai agreed that this meeting was not mentioned in her affidavit dated 11 June 2020: T404.13; T406.1. Ms Bai added "because Coco [Ms Xie] already mentioned in her affidavit" but then asserted that she had not read Ms Xie's affidavit: T406.1-.8. Ms Bai denied that there was no reference to going to Ms Huang's house on 28 December 2017 in her affidavit as she never went there on that date: T406.17. Ms Bai also accepted that she said nothing in her first affidavit about the events on 15 January 2018: T407.4. Ms Bai then gave her account of what occurred at that meeting: T408.8. Although Ms Bai in her evidence stated that Ms Huang said on 15 January 2018 words to the effect "we'll still execute the contract" (T408.13), she later said it was an oral contract: T408.24. Ms Bai said that Mr Nam, Ms Huang's husband did not talk much at any of the meetings on 24 December 2017, 28 December 2017 and 15 January 2018. She said that at the latter meeting, he looked at the contract and reference was made to the need to change the name: T413.5-.41. Ms Bai denied that at the meeting, Ms Xie said in her presence that Muse City had a 3,000 person WeChat client base which would be made available to Muse Waterloo to share and had 20 to 30 customers per day: T417.37. 22. Ms Bai also later denied that any representations were made by her or by Ms Xie in her presence to Ms Huang to the effect that the fit out costs for the new shop were $350,000-$400,000, that Muse City had a 3,000 person WeChat client base, that the 3,000 WeChat client base would be made available to Muse Waterloo for its use, that sharing the client base would result in Muse Waterloo being expected to have the same results as Muse City and that Muse City had made $600,000 per year in revenue. Ms Bai said that the proposal was in substance the purchase of an interest in a new business and had nothing to do with the Muse City shop. She said nothing was said about any use of software. Ms Bai said that none of these matters were discussed in the 24 December 2017 meeting. She also rejected that these items were represented in circumstances where she knew them not to be true. Whilst Ms Bai accepted that it was agreed on 24 December 2017 that they would go away and instruct their lawyer to prepare a contract if a deposit was paid, that was in relation to Ms Huang getting a 20% share and not in relation to the other matters which were put to her. It was put to Ms Bai that there were no discussions on 24 December 2017 about Ms Huang working as a manager five to six days per week, as she had a child with special needs. Ms Bai said that as she understood it, this matter had been discussed before with Ms Xie and that Ms Huang wanted to be the manager. She understood that she had indicated that as her child had grown up to some extent she had more time available. She also denied any agreement to allow Ms Huang to do a due diligence at the City shop to decide whether or not to proceed. Ms Bai denied that any agreement was made to permit Ms Huang to look at the books and records of the Muse City shop as the proposal was about a new shop. She denied that promises were made to get the capital proposed from Ms Huang knowing that the promises were false. 23. Ms Bai was then cross-examined in relation to her suggestion that she and Ms Xie went to Ms Huang's house on 28 December 2017 and gave her a copy of the draft contract. She denied the suggestion that this meeting never occurred whilst accepting that she had not referred to it in her affidavit. She claimed the meeting had occurred. 24. Ms Bai confirmed that the visit on 28 December 2017 was the first time she had visited Ms Huang's house with the second time being on 15 January 2018. She agreed that she was familiar with the house after her 28 December 2017 visit. Ms Bai was then asked to look at the WeChat exchange which showed that a photograph was taken of Ms Huang's house on 15 January 2018 and sent to Ms Huang: Exhibit A pages 144 and 146. When seeing the photograph, Ms Bai stated that it was possibly Ms Xie who took the photograph. She also accepted that the Chinese message underneath it could properly be translated as "Arrived. Found it": T430.17; T432.24. However, she denied that the photograph was taken as this was the first time they had attended the property and confirmed her previous evidence that they had been there on 28 December 2017. Ms Bai stated that they went there on 28 December 2017 as Ms Huang had asked them to attend but accepted that there was nothing in her affidavit to that effect. 25. Ms Bai was then asked to recount what occurred at the meeting on 15 January 2018. The account she gave was similar to the account she had previously given in cross-examination: see T434. Nothing was said by Ms Bai in her account of Ms Huang offering to pay the entire $130,000 in cash as asserted by Ms Xie in her evidence. Ms Bai asserted that she and Ms Xie indicated that a receipt had to be provided for the $60,000 in cash although Ms Huang said it was not necessary as she trusted them. It was put to Ms Bai that nothing was said about changing the name as the correct name had been resolved well before 15 January 2018. Ms Bai disagreed and said that on 15 January 2018 the name was still not correct in the draft contract. Ms Bai denied that the desire to change the name from Mr Nam's name was indicated by WeChat message and not at the 28 December 2017 meeting. 26. Ms Bai was then asked a number of questions about group WeChat messages which occurred between Ms Xie, Ms Huang, Mr Nam and herself from 24 or 25 December 2017. She agreed that there was nothing in the WeChat message correspondence suggesting that she and Ms Xie had attended Ms Huang's house on 28 December 2017. Ms Bai stated that the WeChat group was established immediately after Ms Huang had paid the $8,000 deposit on 24 December 2017. Ms Bai said that the contact to go on 28 December 2017 was made by Ms Xie by telephone as she had Ms Huang's telephone number. 27. Ms Bai was then cross-examined about a WeChat message for 30 December 2017 where Ms Xie said "we will take the latest price list and contract to you when you come back … I will make arrangement according to your availability?": Exhibit A page 423. It was put to Ms Bai that there was no reference to another copy of the contract or a re-draft of the contract as she asserted had occurred on 28 December 2017. Ms Bai stated that Ms Xie dealt with that issue. 28. Ms Bai was then asked about the WeChat screenshot in the WeChat chat group on 9 January 2018 where Ms Xie stated: "The early we communicate the better, I think there were much to be revised": Exhibit A page 425. Ms Bai denied that this indicated that no final agreement had been reached as yet and that there were aspects of the terms of the agreement to be revised. 29. Ms Bai then had put to her aspects of Ms Huang's version of the 15 January 2018 meeting which she rejected. She said Mr Nam stated that the name on the contract was not correct and that they could not print a copy of the contract as the ink in the printer had run out. When it was pointed out that her account of the meeting on 15 January 2018 included no reference to the remaining $70,000, Ms Bai said that Ms Huang indicated that they would pay the rest of the money afterwards. She stated that Ms Huang said that she needed the money to buy some supplies. Ms Bai agreed that the WeChat entries for 15 January 2018 (Exhibit A page 425) made no reference to Ms Xie and Ms Bai having forwarded a contract to Ms Huang on 15 January 2018 and asking for it to be returned and signed. She also agreed that there was no reference to a contract in any of the WeChat messages between 15 January 2018 and 19 January 2019: see Exhibit A pages 426-435. When it was put to her that she did not ask for the share application form to be signed by Ms Huang, she stated that Ms Xie looked after these matters. Ms Bai stated that as far as she was aware a contract had come into existence between the parties after the $60,000 was paid on 15 January 2018. 30. Ms Bai was then asked about a meeting on 20 January 2018 at Ms Xie's house. Initially, she did not recall the meeting, but after being shown WeChat correspondence (Exhibit A page 434), she agreed that she was present at the 20 January 2018 meeting. She denied that one outstanding issue at the meeting was the draft contract despite the reference in the WeChat message by Ms Huang to the following: "All the matters in our shop can be settled": Exhibit A page 435. Ms Bai accepted that she did not mention the 20 January 2018 meeting in her affidavit. Ms Bai denied that she had discussed her evidence with Ms Xie. 31. Ms Bai was then taken to WeChat messages between Ms Xie and Ms Huang for 22 January 2018 and particularly the reference by Ms Xie as follows: "I ask the lawyer to revise the document this morning". Ms Bai denied that the document referred to as she understood it was the contract relating to Ms Huang buying an interest in Muse Waterloo and said it was an employment contract: see T474.31-T475.5. 32. Ms Bai was then asked a number of questions about the alleged training which she provided to Ms Huang at the Muse City shop on 17 January, 18 January and 24 January 2018. She asserted to have a blurred memory in relation to 24 January 2018 but stated that she believed she attended the shop in the afternoon. On the other two days, she claimed to have provided training to Ms Huang for most of the day until 6pm. She denied that Ms Huang came only to observe the shop and review its records and that she had to leave early as she had to pick up her son at Colebee by 3pm. She also denied that Ms Huang was not at the shop on 24 January 2018 when she was present. Ms Bai denied that Ms Huang was present at the shop with Kitty Lo only. 33. Ms Bai was then asked questions about the WeChat group exchange at Exhibit A page 122. Ms Bai accepted that the WeChat message last appearing on Exhibit A page 122 was sent on 25 January 2018. However, she stated that Ms Huang wished to discuss the employment contract details whilst accepting that there was nothing in her affidavit evidence discussing a desire of Ms Huang to talk about an employment contract. She denied concocting a story about an employment contract with Ms Xie to explain away the 25 January 2018 email at Exhibit A page 122. She accepted that she did not put a copy of the employment contract in evidence but claimed it was a "small matter": T477.16. 34. Ms Bai accepted that the Muse Waterloo business was sold for $100,000 but rejected the proposition that the reasons for the sale were only limited to her going overseas and Ms Xie being pregnant. She stated that the main reason for the sale was that she did not feel safe in Australia due to threats by Kitty Lo and Ms Huang. 35. Ms Bai was then asked questions about the $60,000 which she allegedly received from Ms Kitty Lo. Ms Bai was shown a copy of Exhibit 2 and said that the signature on it looked like her signature but was not her signature. She denied providing the receipt for $60,000 to Ms Lo or initially promising her to provide an interest in Muse Waterloo which was then changed to an interest in Muse City. She also denied that the signatures on the contracts in Exhibit 3 were hers. It is noted that Ms Xie in due course accepted that it was her signature on the contract in Exhibit 3. Ms Bai claimed that the receipt which is Exhibit 2 and Exhibit A page 233 was falsified and it was not her signature on it. She also denied receiving $60,000 from Ms Lo. 36. Ms Bai was asked about selling shares to Ms Cindy Liu. She denied selling the shares to Ms Liu on the basis of false financial records in respect of the Muse City shop. She said the money was returned to Ms Liu due to threats following Ms Huang talking to Ms Liu. Ms Bai said the threats were from Ms Liu and Ms Huang: T481-2. When it was put to Ms Bai that she did not know when Ms Liu met Ms Huang first, Ms Bai stated that Ms Liu had told her that Ms Huang had talked to her about them. Ms Bai denied that the screenshots containing threats were in any way fabricated by her as to their date. Oral evidence of Ms Kitty Lo 1. Oral evidence was given in the proceedings on a number of days by Ms Yuk Yee Lo, also known as Ms Kitty Lo. Ms Lo had previously worked as the manager at the Muse City shop. 2. In further evidence in chief, Ms Lo confirmed that Exhibit 2, the alleged duplicate copy of the receipt for the $60,000 stated to have been paid by her to Ms Xie and Ms Bai, was part of her business records as was Exhibit 3, the agreements relating to her obtaining a share interest in Muse City. She confirmed that her signature was on the agreements in Exhibit 3: T564. 3. In cross-examination, Ms Lo gave evidence that she arrived in Australia in 2005 and was from Hong Kong. Ms Lo stated that she studied in Australia and obtained a Diploma of Beauty Therapy from TAFE, a copy of which became Exhibit B in the proceedings: T565.44. She also stated that more recently in 2020 she had obtained a Diploma of Remedial Massage. She agreed that she studied her Diplomas in English and that she also had some English language skills. She stated that she had prepared her two affidavits in Chinese and translated them herself with the assistance of "Google Translate": T567.43. 4. Ms Lo gave evidence that as at September 2017 she was working at a shop on Level 5 in York Street in Sydney called "Face of Love". At this shop, various beauty services were provided to customers including therapeutic body massage. Ms Lo accepted that the Face of Love shop was not a large shop. Initially, she estimated the size of the shop to be about 40 square metres but later changed her estimate to 30 square metres. She said it had three massage tables. She denied that it was only a small shop of about 15 square metres with one massage table. She accepted that occasionally only one person was working in the shop. In addition, she said that she had a cabinet in the shop displaying "Dermatologica" skin care products. Ms Lo said that the shop had an ultrasound machine, a micro dermabrasion machine and a bio oxygen infusion machine. She rejected the suggestion that the bio oxygen infusion machine was not working in September 2017 and that she had no ultrasound machine at the shop in September 2017: T573. 5. Ms Lo gave evidence that she was the owner of the Face of Love shop in September 2017 having bought it from its previous owner at the end of 2015. She said she had worked at the shop for the previous owner: T574. 6. Ms Lo gave evidence that she first had contact with Ms Xie at the end of July 2017 through another customer, with Ms Xie attending for massage at the Face of Love shop on 1 August 2017. Ms Lo agreed that she occasionally lied to clients in relation to the ownership of the shop because if she said she was the owner, they would sometimes attempt to get a discount. She agreed that she previously had a therapist at the Face of Love shop who could not continue to work due to a pregnancy. 7. It was put to Ms Lo that she found it hard to get customers in August 2017, which she rejected: T576.22. She said many of her clients came by recommendation and when she was working by herself she had difficulties answering calls and returning messages which resulted in some clients going elsewhere. She rejected the proposition that her business changed substantially when her assistant left. However, she agreed that there were some changes when her assistant left with some clients leaving who could not contact her during the day. Ms Lo rejected the suggestion that in August 2017 her business was going badly and that she was looking for an assistant or a partnership to help her improve it: T577.22-.38. She said she had always had an idea to obtain a partner to help her with clients as it was difficult working alone. 8. Ms Lo was then asked a number of questions about WeChat accounts connected with her and the Face of Love shop. She agreed that she had a personal account called "Kitty Natural Beauty" and a separate WeChat account for the Face of Love business. She said she had acquired the Face of Love WeChat account when she purchased the business at the end of 2015. Ms Lo was asked questions about the number of client appointments obtained through the Face of Love WeChat account as at August 2017. She agreed that not a lot of appointments were obtained through the account. Initially, she said that two to three appointments daily were obtained through the Face of Love WeChat account but later altered that evidence to say that on average it was one to two appointments daily although occasionally it was only two to three every few days. She agreed that she took the Face of Love WeChat account to Muse City. 9. Ms Lo also agreed that when she went to the Muse City store that posts from Muse City were reposted on the WeChat accounts of Kitty Natural Beauty and Face of Love. Ms Lo said that Ms Xie and Ms Bai told her that she had to tell her clients that she was now working with them: T580.28. Ms Lo said that the re-posting from Muse City to the Face of Love WeChat account was undertaken by her through her apprentice and was updated daily. She denied that there was no separate Face of Love WeChat account to her personal Kitty Natural Beauty WeChat account. Ms Lo claimed that Ms Xie obtained control of the Face of Love WeChat account by logging in and changing the password. In due course, she said that only Ms Xie and Ms Bai could log in to the Face of Love WeChat account. Ms Lo stated that she gave access to the account to Ms Xie, although that was not in the agreement between them, in order to assist Ms Xie and Ms Bai to reactivate clients in the Waterloo and Zetland areas: T583.19. 10. Ms Lo agreed that not many of the Face of Love clients came to Muse City for treatment but claimed this was due to the "attitude" of Ms Xie in offending some of the clients and wishing that they signed up to packages at Muse City: T584.3. She rejected the proposition that the real reason was that prices at the Muse City shop were much higher than at the Face of Love shop and said that there was not a very large difference. She rejected the proposition that massages at the Muse City shop were $200 per massage. 11. Ms Lo was then asked a number of questions in relation to her knowledge of various beauty services and whether she had been trained by Ms Xie and Ms Bai in those services. She rejected the proposition that she did not know how to perform lymphatic drainage massage at the Face of Love shop in 2017. She also rejected the proposition that she was trained in lymphatic drainage massage at Muse City and stated that she was the person who taught Ms Xie and Ms Bai how to do massage. In particular, she rejected the proposition that Ms Bai trained her in lymphatic drainage massage and said that substantial experience was needed to undertake this massage. She rejected the proposition that she was not as good at facials as Ms Bai but accepted that her main role at Muse City was in providing massage. She also rejected the proposition that Ms Bai trained her in providing facials when she went to Muse City and said she did not have the skills to do so: T585-T586. 12. Ms Lo agreed that she first met Ms Xie on 1 August 2017 at the Face of Love shop where she performed a body massage on her. She said her first contact with Ms Xie was at the end of July 2017: T587.34. See also Exhibit A, pages 221-222, paragraphs 6-7. Ms Lo was then cross-examined about her various conversations with Ms Xie in August and September 2017. There were some differences between Ms Lo's account of the conversations and those appearing in her affidavit at Exhibit A pages 222-223. These included that Ms Lo claimed that she undertook a lymphatic drainage massage on Ms Xie on 1 August 2017 whereas it is not mentioned in paragraph 7 of her second affidavit and also the price which she charged Ms Xie on 14 August 2017 stated in her oral evidence was inconsistent with that referred to in her affidavit. In the end, Ms Lo said that she could not remember the detail of every conversation, particularly as to the price charged. Ms Lo agreed that it was very difficult to remember conversations which occurred nearly four years ago and that it took some time to try to recall them: T591.8-.15. 13. Ms Lo gave evidence that on 11 September 2017, Ms Xie and Ms Bai came to her shop to discuss a proposed partnership: see Exhibit A page 223, paragraph 13; T591.46. Ms Lo said that she had thought that the partnership would involve only her and Ms Xie but as Ms Bai was brought along she realised it was a proposal for a partnership of three. She agreed that the plan was for Ms Xie and Ms Bai to have 70% of the shareholding and for her to have 30% of the shareholding in Muse City: T592.12. 14. Ms Lo agreed that she accepted that she would work hard at Muse City and said that she worked seven days a week mostly and otherwise six days a week. She rejected the proposition that she could bring the products which she had at the Face of Love shop and sell them and keep the money. She said the sale proceeds from the products had to go to the company itself. Ms Lo accepted that at the meeting on 11 September 2017 she indicated that she did not want to invest any money in the Muse City shop and was not asked about investing $60,000 into the shop at Muse City on this occasion: T594.3-.13. Ms Lo agreed that Ms Xie had indicated that she would have a contract prepared to reflect their agreement. She denied that on 11 September 2017 the contents of the Face of Love shop were moved to the Muse City shop. She said they had only had a verbal agreement made on that day. 15. Ms Lo agreed that she attended the Muse City shop to work on 23 September 2017 but said she only worked on that day and helped answer questions from clients. She stated that she moved to the Muse City shop at the beginning of October 2017: see Exhibit A page 224, paragraph 17; T596.38. 16. There was then cross-examination in relation to the machines which were held at the Muse City shop and the products that were used there. Ms Lo denied that she was trying in her evidence to make the Muse City shop look like an unprofessional shop before she arrived there. 17. There was then extensive cross-examination in relation to the evidence in paragraph 16 of Ms Lo's affidavit at Exhibit A page 224 about Ms Xie and Ms Bai taking her for a drink at a bar in Zetland at which they discussed opening a beauty salon in Waterloo and at which they pressed her to invest in that salon: T599 and following. Ms Lo said that they wanted her to invest $130,000 in the planned shop at Waterloo and described it as a "really good opportunity". In exchange for that sum, she would get 30% of the shares: T600.44-T601.4. Ms Lo said that she told them that she did not want to invest in the Muse Waterloo shop as she did not have the energy at her age to focus on two shops and wished to focus her attention on the Muse City shop. She said she was glad to provide help if needed. She said she was asked how much money she had and she said she had $60,000 only and her husband needed the money in Singapore. Ms Lo claimed that Ms Xie was trying to persuade her "strongly" to join with them: T601.16. Ms Lo said that she could not join them and was "quite firm" in her rejection. She claimed that she suggested to them to obtain an alternative investor: T601.24. Ms Lo said that the bar was near where she lived and that she lived in Rosebery at the time. 18. It was put to Ms Lo that the evening of 24 September 2017 when she claimed that Ms Xie and Ms Bai took her for a drink to a bar was a Sunday night and that the meeting never occurred. Ms Lo denied that and said that they entered the bar and Ms Xie and Ms Bai had drinks. It is to be noted that Ms Lo was able to give quite detailed evidence in relation to the bar including the type of seats that they sat at and the type of drinks ordered. She appeared to be genuine in her recollection of the event. She denied the proposition that no-one was talking about a shop in Waterloo in September 2017 and that the conversation with Ms Xie in relation to the Waterloo shop occurred at the Muse City shop in October or November 2017. She also rejected the proposition that she wanted to become a part of the Muse Waterloo shop. Ms Lo said that she wanted to focus her attention on the Muse City shop. She denied making the evidence up about the discussion in the bar to make Ms Xie and Ms Bai "look bad". 19. Ms Lo also rejected the suggestion that during a discussion relating to Muse Waterloo in November or December 2017 that she demanded $60,000 from Ms Xie and Ms Bai as part of the proposed investment to be obtained relating to the Muse Waterloo shop. Ms Lo denied that Ms Xie told her that she was looking for someone to invest $200,000 in the Muse Waterloo shop and Ms Lo wanted 30% of that amount or $60,000. 20. It was put to Ms Lo that she had fabricated her story of paying Ms Xie and Ms Bai $60,000 as she was angry that she did not get a bonus for her work at the Muse City shop and for her assistance in relation to the Muse Waterloo shop. She rejected the proposition that she was angry but confirmed that she disliked Ms Xie and felt troubled after working with her. It was put to Ms Lo that because she disliked Ms Xie she put in her affidavit that Ms Xie asked her "why she was fat?": Exhibit A page 222 paragraph 7. Ms Lo denied that and agreed that Ms Xie was not fat but that is what she had said. 21. Ms Lo agreed that she moved to the Muse City shop on 5 October 2017. She also agreed that she moved her various equipment into the Muse City shop on that date. She rejected the proposition that she did not have the machines she had stated at the Face of Love shop due to the small size of the shop. Ms Lo accepted that she trained some people at the Muse City shop. She denied that she was trained by Ms Xie and Ms Bai in relation to the use of equipment especially the OPT machine at the shop but accepted that she obtained instructions from them as to how to use the machine. 22. Ms Lo was then asked about her role at the Muse City shop. She agreed that she did not set prices for services at the shop and said the prices were arrived at through a consensus of the three of them. She agreed that she did not hire and fire staff at the shop or instruct accountants in relation to financial reports. In relation to sales, Ms Lo said that she recorded entries in books relating to every transaction at the shop every day including the services provided to clients and how they paid. Other workers at the shops also made these entries. Ms Lo also agreed that she did not prepare BAS statements for the business and did not need to track the profitability of the Muse City business. She accepted that Ms Xie and Ms Bai also made entries in the books including making records in relation to services completed and the remaining balances for treatment plans. Ms Lo said that she did not set up a banking account for Muse City and had no control or access to its bank account. She also said that she did not take cash received and place it in the company bank account. 23. Ms Lo agreed that she signed a shareholder agreement with Ms Xie and Ms Bai on 29 November 2017. She said the joint responsibility for the management of Muse City was with her as well as Ms Xie and Ms Bai. 24. Ms Lo gave evidence that she trained a number of apprentices at the Muse City shop and said that she trained more than 14 apprentices. These apprentices were not enrolled in a Diploma of Beauty Therapy at TAFE. She confirmed that the apprentices paid Muse City for the privilege of being trained by her but denied that she would often take the training money from apprentices herself personally. She said some of the apprentices were kept as employees and were paid and estimated the number as being five to six. Ms Lo gave evidence that she withheld $400 from the moneys at Muse City as there was an apprentice who had not completed her training and the money was kept by her in case a refund was needed. She claimed that she kept the money to protect it as a shareholder. She then claimed that she kept the money as compensation for money that Ms Xie and Ms Bai were to pay her. Ms Lo said that she recorded the $400 in the sales book as being withheld. Ms Lo again denied that she kept the payments from apprentices between August and October 2018 as there were no apprentices working at Muse City at that time. 25. Ms Lo was then cross-examined about her evidence in her first affidavit that a number of apprentices at Muse Waterloo complained to her that there was no-one to lead them during work and that they were underpaid: Exhibit A pages 214-215, paragraphs 8-10. Ms Lo said that in fact she trained 18 apprentices and confirmed that the apprentices complained to her that they were underpaid with the complaints relating to a lack of leadership during work being made by apprentices at the Waterloo shop. She agreed that not all of the apprentices complained. She estimated that about seven to eight apprentices complained to her and they were from both the Muse City and Muse Waterloo shops. Ms Lo said the complaints were made to her through WeChat messages. She denied that her evidence about the complaints was false. 26. Ms Lo produced a copy of a sales book as on subpoena to the Court. Ms Lo agreed that on 21 November 2018 she took the original of the book from the Muse City store but she denied that she gave a copy of it to Ms Huang. Ms Lo said that she made a copy of the sales book on 22 November 2018 and returned the original to Ms Xie who she met at the police station. 27. Ms Lo was then asked a number of questions in relation to paragraphs 19-24 of her second affidavit at Exhibit A pages 225-227. The affidavit itself is somewhat confusing as some of the entries are not placed in chronological order. Ms Lo gave evidence that in November 2017 she negotiated two agreements with Ms Xie being a share subscription and accession agreement and a shareholders' agreement relating to her involvement with Muse City. She also agreed that under the share subscription and accession agreement, Clause 3.1, she was to be paid a salary of $878.90 per week but denied that it was an increase from an earlier lower salary. 28. Ms Lo was asked questions about paragraph 19(b) in Exhibit A page 225 of her second affidavit in relation to her statement that on 14 November 2017 "three formal Shareholder Agreements had been executed". After a number of questions, Ms Lo said that she intended to convey that the shareholder agreement was verbally discussed and agreed on 14 November with the written agreement to be prepared. She said that no signing was involved on 14 November 2017. Similarly, Ms Lo said that paragraph 21 of her second affidavit where she states that on 14 November 2017 the shareholder agreement for Waterloo was executed was also intended by her to convey that it was agreed upon verbally. Ms Lo stated that she had no intention to join Ms Xie and Ms Bai in the Muse Waterloo shop investment. She said an email containing the draft agreement for Muse Waterloo was emailed to her on 14 November 2017 and by "executed" in paragraph 21 she meant that she had received the email. She said that she did not sign any agreement relating to Muse Waterloo and did not review the agreement as she did not intend to participate in Muse Waterloo. 29. Ms Lo was then cross-examined in relation to the $60,000 investment which she claims she made in Muse City. She accepted that in September 2017 she agreed with Ms Xie and Ms Bai that she would receive 30% of the shares in Muse City and pay no money for the shares. She also agreed that in November 2017, some two months later, Ms Xie wished her to invest $60,000 in the Muse City store: Exhibit A page 226, paragraph 22. Ms Lo said that she had not thought previously that her alleged payment of $60,000 in relation to Muse City did not involve her receiving anything in return having regard to the original agreement to give her 30% of the shares for no payment. Ms Lo said that she did not think of what she was getting for the $60,000 which Ms Xie wished her to pay: T660.38-T661.10 especially at T660.47. Ms Lo rejected the proposition that Ms Xie never asked her to invest $60,000 in Muse City and that her suggestion that she did so was a lie: T661.18-.23. 30. Ms Lo agreed that on 28 November 2017 she finally made the decision to give Ms Xie and Ms Bai the $60,000 in cash: T662.14. Despite paragraph 24 of her affidavit at Exhibit A page 227, Ms Lo said that she made the decision to pay the money a few days before 28 November 2017 on 25 November 2017, following the discussion set out in paragraph 23 of Exhibit A page 226: T662.28. She said she made the decision to pay the money because she did not want to make Ms Bai angry and upset. She said she wished to make the payment to co-operate. Ms Lo stated in relation to paragraphs 23-24 of her second affidavit, that the payment happened on 28 November 2017 but there were a number of conversations relating to it between 25 and 28 November 2017: see T662.28-.48 and T664.7-.31 and T665.14. 31. Ms Lo confirmed in her oral evidence that when she initially visited the Muse City shop on 21 September 2017 that it did not look like a normal beauty shop: Exhibit A page 223, paragraph 14. She also confirmed her evidence in paragraph 15 of her affidavit (Exhibit A page 224), that on 23 September 2017 she found out that Ms Xie had hired a "nurse" to provide injections for clients. Ms Lo was taken to numerous references in the Muse City shop record book to "doctors" being paid for providing injections: see Exhibit E. Despite this, she denied that it was standard practice at the Muse City shop for doctors to provide injections. Ms Lo agreed that one service provided by the Muse City shop required injections but was unclear whether the persons referred to as "doctors" by Ms Xie and Ms Bai were actually doctors (in the sense of registered medical practitioners). She said she never received confirmation as to their status and the word "doctor" was used as a common word in the sales record book. Ms Lo also said that the "nurse" referred to in paragraph 15 of her affidavit at Exhibit A page 224 was not the same person as the "doctors" referred to in the Muse City shop record book. 32. Ms Lo was then further cross-examined in relation to the $60,000 which she had allegedly provided in cash to Ms Xie and Ms Bai on 28 November 2017. She confirmed that that amount was provided to Ms Xie and Ms Bai in cash on that date. She said the sum in cash had been saved from her earnings and was kept by her at home. 33. Ms Lo agreed after some cross-examination that her statement referred to in paragraph 16 of her affidavit at Exhibit A page 224 that her husband needed the $60,000 was incorrect and was designed to fob off Ms Xie as Ms Lo said she never intended to invest in the Muse Waterloo shop. Although Ms Lo prevaricated for some time in her oral evidence as to whether her husband's business had financial difficulties at the time, in the end she accepted that she used the reference to her husband having financial difficulties as a reason to reject the initial advance from Ms Xie for an investment. 34. Ms Lo said that by November 2017 she had been at Muse City for a short period and was concerned that her equipment and goods had been moved into the shop and she no longer had the Face of Love business. Ms Lo said that this was the reason she agreed to give the $60,000 to Ms Xie and Ms Bai in November 2017 even though she did not obtain any extra benefits from what had been agreed with them in September 2017. She added that Ms Xie and Ms Bai appeared very upset about her lack of agreement to invest the money. 35. Ms Lo was taken to paragraph 24 of her affidavit at Exhibit A page 227 where she stated that on 28 November 2017 "they came about 20:00 to collect the money and they were very happy and promised to work hard in the future. And provide me with a receipt". Ms Lo confirmed that she handed the $60,000 in cash to Ms Xie and Ms Bai at the Muse City shop and that they came to her to collect the money at around 8pm. She said she had to wait for the clients to leave. Ms Lo accepted that Ms Xie was working in the shop on that day and she therefore did not come to the shop at 8pm to collect the money. She said Ms Bai arrived at the shop at 8pm and they both then approached her to collect the money. She denied any inconsistency with her affidavit evidence at paragraph 24 at Exhibit A page 227. 36. Ms Lo was then cross-examined in relation to her evidence that Ms Xie and Ms Bai gave her a receipt for the $60,000 in cash dated 28 November 2017: Exhibit A page 233 and paragraph 24 at Exhibit A page 227. Ms Lo said the receipt was in the writing of Ms Xie and that both Ms Xie and Ms Bai signed the receipt. Ms Lo denied that she purchased the receipt book for the Muse City shop and used it to provide receipts to customers. She said the receipt book was a book which was there when she came to the shop and it was never used up. She said Ms Xie kept the receipt book close to her. She denied ever writing in the receipt book. She claimed that she had never seen similar receipts issued to clients before, including for cash payments. Ms Lo also denied that she kept the receipt book and still had it. Whilst accepting that a duplicate was usually kept with a receipt book and the original handed to the person being provided the receipt, Ms Lo said that she was provided with the duplicate receipt by Ms Xie and Ms Bai which is Exhibit 2. It is noted that the receipt which is Exhibit 2 is a duplicate copy and is the same colour as the receipt which is part of Exhibit 3. Ms Lo denied that she had the original of the receipt of which Exhibit 2 was a duplicate and said that Exhibit 2 was all she was given by Ms Xie and Ms Bai. 37. Ms Lo was taken to her first affidavit dated 15 May 2020 and accepted that she did not mention the payment by her of $60,000 in cash to Ms Xie and Ms Bai in that affidavit. However, it is noted that the $60,000 is referred to in paragraph 17 of the affidavit as being mentioned by Ms Xie in November 2018: Exhibit A page 217. Ms Lo said that the first affidavit was a general response and her second affidavit went into more detail. Ms Lo denied that the lack of an express reference in her first affidavit to paying $60,000 in cash to Ms Xie and Ms Bai was because it never occurred. She also denied that she wrote the receipt, a copy of which is at Exhibit A page 233, herself. 38. Ms Lo was then asked a number of questions about a series of emails which became Exhibit D in the proceedings. One email was an advice given to her by a solicitor, Mr James Hui, on 23 November 2017. A second email was Ms Lo forwarding the email of advice to the solicitor for Ms Xie at Sun Lawyers. It was put to Ms Lo that on her evidence she had paid $60,000 in cash to Ms Xie and Ms Bai earlier on 28 November at around 8pm but did not refer to the payment in the email to Sun Lawyers and that this was because such a payment never occurred. She rejected that, while accepting that she had forwarded the email to Sun Lawyers. Ms Lo said that Ms Xie had said to her that she would include a reference to the $60,000 in the agreement: see also Ms Lo's affidavit at Exhibit A page 225, paragraph 20. In general terms, Ms Lo confirmed the contents of the statement to her by Ms Xie referred to in the first conversation at Exhibit A page 225 in paragraph 20 where Ms Xie allegedly did not want to refer to the $60,000 payment in the contract as it would require Ms Xie to pay tax on it. 39. Ms Lo rejected the proposition that Ms Xie and Ms Bai never gave the receipt to her at Exhibit A page 233 and that Ms Xie never wrote out the receipt. 40. Ms Lo confirmed that on 29 November 2017 she went to the office of Sun Lawyers, the solicitors for Ms Xie and Ms Bai, and signed "the contract": see also Exhibit A page 225, paragraph 20. She denied that the conversation set out in paragraph 20 of her affidavit at page 225 never occurred. 41. Ms Lo was then asked a number of questions in relation to the training which she had allegedly provided to Ms Huang and paragraphs 1 and 2 of her first affidavit at Exhibit A page 213. Ms Lo denied that Ms Huang was trained when she was present at the shop by her and Ms Bai. She accepted that she was at the Muse City shop on 17 January 2018, 18 January 2018, 23 January 2018 and 24 January 2018 but stated that Ms Huang was only present on 17 January 2018 and 24 January 2018 and no training was given to her. She confirmed that Ms Xie stated on 24 January 2018 that "Jessie will be attending to observe the business" and denied the suggestion that this was never said. Ms Lo said that she was very busy at the shop servicing clients and she did not provide training on any of the days suggested to Ms Huang. She denied that Ms Xie informed her that Ms Huang was an investor in the Waterloo business. She also rejected the proposition that 24 January 2018 was the third or fourth time which she had met Ms Huang. 42. Ms Lo was asked about her relationship with Ms Huang in 2018. She stated that she never had an extremely good relationship with Ms Huang but accepted that on 22 November 2018 Ms Huang accompanied her to a police station but rejected that she did this as the two were friends. She said that she understood that Ms Huang came with her to the police station as both of them felt they were "being lied to": T718.50. 43. Ms Lo was asked a number of questions about a meeting with Ms Xie and Ms Bai on 22 October 2018. She rejected the proposition that she was given a letter at the meeting as appears at Exhibit A page 709. She also rejected the suggestion that allegations were made to her on that date by Ms Xie and Ms Bai that she had been stealing money from the till at the Muse City shop. She said that other issues were discussed such as the $60,000 payment, wages owed to her, the Face of Love WeChat account and the removal of her certificate of qualification at the Muse Waterloo shop. 44. Detailed evidence was given in re-examination by Ms Lo, particularly about the receipt which she claimed was given to her by Ms Xie and Ms Bai on 28 November 2017 in relation to the $60,000 in cash which Ms Lo claimed that she paid to Ms Xie and Ms Bai: see Exhibit A page 233. Ms Lo was provided with a copy of a photograph of the original receipt which is yellow in colour. The copy became Exhibit 8 in the proceedings. Ms Lo gave evidence that page 233 of Exhibit A being the original receipt was photographed by her at the offices of the lawyer for Ms Xie and Ms Bai on 29 November 2018. She stated that she took a picture of the receipt with her iPhone: T726.5-.22. Ms Lo stated that when she went to Sun Lawyers to sign the agreements she noted that there was not a clause in the relevant contract relating to the $60,000 payment and a heated argument occurred with Ms Xie. Ms Lo said that she took a photograph of the receipt which was produced by Ms Xie from documents which she had: T727.23-.40. The original of the receipt, a copy of which is at Exhibit A page 233 (also Exhibit 8) was held at that time by Ms Xie. Ms Lo said that she forwarded the photograph to her lawyer and received advice in relation to it. Ms Lo said that the original yellow receipt was not given to her by Ms Xie: T728.37. Ms Lo stated that the duplicate copy of Exhibit 8 was first given to her by Ms Xie and Ms Bai on the evening of 28 November 2017, the day before the meeting at the lawyer's office, "after they had collected the cash from me": T730.33. The original yellow receipt was retained by Ms Xie. Ms Lo confirmed that Exhibit 2 was not yellow in colour: T731.33. 45. Ms Lo stated that all the writing on Exhibit 2 and Exhibit A page 233 was that of Ms Xie apart from the signature of Ms Bai: T731.46. Ms Lo confirmed that she saw Ms Xie write the receipt in person and after she finished writing it Ms Bai placed her signature on it: T732.4. Ms Lo gave evidence that she was familiar with Ms Xie's writing as she had previously seen it including in Exhibit E, the sales book. Ms Lo confirmed that a number of entries in the sales book were made by Ms Xie. It is noted that Ms Xie appeared to place a dash on a "7" in accordance with the European practice. A similar dash appears on the receipt which is Exhibit A page 233, Exhibit 2 and Exhibit 8. A similar use of the numeral "7" appears in the receipt book for entries on the same date, 28 November 2017: T734.6-.22; T736.25. 46. Ms Lo was reminded of her evidence where she rejected the proposition that she had never been invited to participate in the Muse Waterloo shop by Ms Xie and had never been given a contract for the Muse Waterloo shop. Ms Lo gave evidence that she found an email from Ms Xie forwarding a contract relating to the proposed Muse Waterloo shop to her dated 14 November 2017. The three documents forwarded to her by Ms Xie which included a document relating to the proposed Muse Waterloo shop became Exhibit 9 in the proceedings. 47. Ms Lo was then asked questions about the receipt which is at Exhibit A page 469: see Exhibit A page 394, paragraph 46. Ms Lo gave evidence that Ms Bai wrote the receipt and she (Ms Lo) signed it. Ms Lo stated that she was given the duplicate of the receipt: T745.24-.40. A copy of the duplicate of the document at Exhibit A page 469 was produced by Ms Lo and became Exhibit 10 in the proceedings. Ms Lo gave evidence that she did not know why she was given duplicates and not the originals of the receipts: T747.34. 48. Ms Lo was later recalled to give further evidence in the proceedings. An affidavit of hers was read dated 6 October 2021 which replied to an affidavit of Mr Gen (James) Li, solicitor. Ms Lo confirmed that she had been provided a receipt dated 28 November 2017 which was of grey/pink colour which was an original duplicate receipt. This was Exhibit 2 in the proceedings. Ms Lo said that Ms Xie and Ms Bai gave her that document: T1133.17. 49. Ms Lo gave evidence that she took a photograph of the receipt on 29 November 2017 at the office of Sun Lawyers: T1133.19-.35. She said that Ms Xie was also in attendance at the office of Sun Lawyers at the time. Ms Lo gave evidence that she had the original duplicate receipt on the evening of 28 November 2017 from around 8pm. She said Ms Xie and Ms Bai had signed the receipt after she had given them $60,000 in cash. 50. Ms Lo said that after she took the photograph of the original duplicate receipt she sent a copy of the photograph to her own solicitor, Mr James Hui. Ms Lo said that she asked Mr Hui whether the receipt could be construed as "a legally effective receipt": T1134.15. She said that when she asked this of her solicitor, Mr Hui, Ms Xie and her solicitor, Mr Li, were also present in a conference room: T1134.18. 51. Ms Lo gave evidence that Mr Hui spoke to Mr Li in her presence, then Mr Li left the room and had a further telephone conversation with Mr Hui out of Ms Lo's hearing: T1134.26. 52. Ms Lo was taken to paragraphs 6 to 12 of her affidavit dated 6 October 2018. She confirmed that she prepared the affidavit after having read the affidavit of Mr Li. She also confirmed that she did not agree with all of the contents of his affidavit. 53. Ms Lo was taken to the yellow version of the receipt, a photo of which was Exhibit 8 in the proceedings. Ms Lo gave evidence that she took a photograph of the receipt on 27 August 2018 in the Muse Beauty Salon store at the corner of Pitt and Hunter Streets in the city. She said that she was a business partner with Ms Xie and Ms Bai in relation to the store. Ms Lo gave evidence that she first saw the receipt at the Muse City store inside a filing cabinet. She said she was looking for the receipt as she had an argument with Ms Xie and Ms Bai and suspected that they would not return the $60,000 to her which she had invested. She said she was looking for evidence of the payment and searched the filing cabinet and, having located the receipt, took a photograph of it: T1136.9-.25. She said she left the original of the receipt in the filing cabinet. 54. Ms Lo was shown a copy of Annexure "JH-1" to Mr Hui's affidavit which was the copy of the photograph of the purple coloured duplicate receipt which Mr Hui said was forwarded to him by Ms Lo on 29 November 2017. Ms Lo confirmed that a photograph of this document was also in her telephone: T1137.8. She said that the name "Kitty Face of Love" was a business name which she had used. 55. In further cross-examination, Ms Lo confirmed that she sent the photograph which was Annexure "JH-1" back in 2017. At that time, she had the photograph in her old telephone which she later transferred to her current telephone. She confirmed that she still had the photograph in her current telephone: T1137.47. 56. Ms Lo stated that she had known Mr Hui, solicitor, for a long time and believed it was since about 2016. She confirmed that she leased the premises at Suite 502, Level 5, 60 York Street and that she paid the rental for the suite to Mr Hui. She could not recall whether when she left the premises where she ran The Face of Love business that Mr Hui moved into the premises. 57. Initially, Ms Lo gave evidence that she handed $60,000 to Ms Xie and Ms Bai on 28 November 2017 at about 8pm as part of her investment. Later, she altered her evidence in cross-examination to say that she gave $20,000 to Ms Bai on about 25 or 26 November 2017 with the balance of $40,000 being paid by her on 28 November 2017. Ms Lo confirmed that she paid $20,000 first and paid the remainder on 28 November 2017 before she was given the receipt for $60,000: T1142.49-T1143.45. 58. Ms Lo was taken to her 6 October 2021 affidavit. In relation to paragraph 9 of the affidavit, Ms Lo confirmed that she signed the contract relating to the Muse City store on 29 November 2017 at the offices of Sun Lawyers. She rejected the proposition that she had not given Ms Xie and Ms Bai $40,000 on 28 November 2017 and Ms Bai $20,000 on 25 or 26 November 2017. 59. Despite suggestions that her evidence in her affidavit was incorrect, Ms Lo confirmed that she had a "serious argument" with Ms Xie about the $60,000 not being referred to in the contract while James Li, solicitor, was in the conference room on 29 November 2017: T1144.36. She also confirmed her evidence as set out in paragraph 9 of her affidavit that Mr Li asked her to take a photograph of the receipt and send it to Mr Hui by text, despite a suggestion that this was incorrect. Ms Lo confirmed that Mr Hui told her that it was "fine" to confirm the payment by the receipt as the receipt was sufficient evidence of payment: T1145.19. This evidence is inconsistent with the evidence of Mr Hui who stated that he advised Ms Lo that a clause should be put in the agreement referring to the $60,000 payment. Ms Lo also confirmed that Mr Li was present at all times while she had the conversation with Mr Hui as to the legal effectiveness of the receipt: T1145.31. This is also inconsistent with the evidence of Mr Hui. Ms Lo denied that Mr Li left the room while she had a conversation with Mr Hui about the receipt. 60. Ms Lo was then asked some questions about the photograph of the yellow receipt which is Exhibit 8. Ms Lo agreed that on 29 August 2018 she took a photograph of the yellow receipt but denied that the reason she was able to do this was that she had both copies of the receipt in her possession at that time and at all times since the receipt was created: T1146.25. 61. In further re-examination, Ms Lo clarified that the argument between herself and Ms Xie was a fierce argument as to why the $60,000 was not mentioned in the contract. She said that Ms Xie refused to refer to the $60,000 in the contract as if it was referred to she said she would have to pay tax on it and would suffer a loss and this would require the number of shares that Ms Lo received in the company to be reduced. She said that Ms Xie said to her that if she insisted on the $60,000 being referred to in the contract it would be very difficult to operate with her and their working relationship would be "severely damaged": see T1146.33. 62. Ms Lo confirmed that she was given the receipt at about 8pm on 28 November 2017 after she had paid $60,000 in total to Ms Xie and Ms Bai: T1147-8. 63. After a further application, Ms Lo was recalled for additional cross-examination. The reason for the further cross-examination related to a difference in the documents produced by Ms Lo, being photographs on or relating to aspects of her phone concerning the receipt stated by Ms Lo to have been forwarded by her to Mr Hui, solicitor, on 29 November 2017 (which are Exhibit 14 in the proceedings), compared to the photograph stated by Mr Hui to have been received by him from Ms Lo on 29 November 2017 (see Annexure "JH-1" to Mr Hui's 18 October 2021 affidavit). 64. In further questioning by counsel for the Xie interests, Ms Lo's attention was drawn to a purple mark on the receipt said to have been forwarded to Mr Hui in a line under the words "City Branch": T1190.11. Her attention was then drawn to Annexure "JH-1" to Mr Hui's affidavit and Ms Lo agreed that there was no purple line under the words "City Branch" in that annexure. It was put to Ms Lo that the two documents could not be the same document. Ms Lo said that they were the same document/picture. Ms Lo gave evidence that she made use of a feature on her telephone to underline for herself in purple the words "City Branch" on the photograph: T1190.33. Ms Lo then held up the photograph on her telephone to counsel and the court which did not have the purple marking on it. Ms Lo gave evidence that she had removed the purple marking: T1190.38. 65. Ms Lo said that she could not recall when she made the purple mark on the photograph, including whether it was in 2018 or 2019: T1191.12. However, she said that she was able to use the function on the telephone to revert the photograph back to the way it was (without the purple mark). 66. Ms Lo was then taken to paragraph 9 of her affidavit affirmed 6 October 2021 relating to the circumstances in which she signed the agreements at the Sun Lawyers' office on 29 November 2017. It was suggested to her that that paragraph was incorrect and Ms Lo confirmed its accuracy. She denied making up a story as set out in paragraph 9 in order to discredit Ms Xie: T1192.8. 67. In re-examination, Ms Lo confirmed that there was a function on her telephone which allowed her to put a coloured mark on a photograph. She said that when she sent the photograph to Mr Hui in November 2017 it did not have the purple mark on it: T1192.17. Oral evidence of Ms Huang 1. Extensive oral evidence was given by Ms Huang. 2. In her evidence in chief, Ms Huang was shown the documents which became Exhibits 11 and 12 in the proceedings. In relation to Exhibit 11, Ms Huang confirmed that the WeChat exchange occurred as part of a WeChat group of which Ms Xie, Ms Bai, Mr Nam and herself were members. In relation to Exhibit 12 (see also the Court Book at pages 563-564), Ms Huang said that the message was not posted by her on WeChat. 3. In further evidence in chief, Ms Huang confirmed that she was never shown a WeChat customer system for the Muse City store or a written or electronically maintained database of clients by Ms Xie or Ms Bai. She also stated that she did not see, despite asking, an electronic means by which the Muse Waterloo store could access the client records of the Muse City store. Ms Huang confirmed that the Muse Waterloo store did not have access to the client records of Muse City. Ms Huang added that she did not see any software in existence which allowed the Muse City database to be accessed by the Muse Waterloo store. Ms Huang said it was never explained to her how the asserted WeChat system client base or the alleged software worked. Ms Huang claimed that at a meeting on 20 January 2018 with Ms Xie and Ms Bai, they asserted that there were two WeChat client bases held by the City store with more than 1,000 clients on each, amounting to 3,000 clients altogether. In substance, Ms Huang stated that Ms Xie asserted that the software was not ready and the system was being completed to allow access to the City store database. Ms Huang gave evidence that the matters she raised about the WeChat client database and the software to allow access were never addressed by Ms Xie. 4. In cross-examination, Ms Huang gave evidence that she came to Australia in 2009 and had studied English, Aged Care and Beauty Therapy whilst in Australia. The Beauty Therapy course was undertaken by her in 2018 after she returned from South Korea to Australia in January 2018. She confirmed that before going to Korea in January 2018 she had not studied any beauty therapy courses, including overseas. 5. Ms Huang was asked a number of questions in relation to a business which she operated importing and selling Korean beauty products. Ms Huang confirmed that between 2015 and 2018 she operated such a business and as part of it sold a number of products to beauty salons. 6. Ms Huang gave evidence that she did not know of the Muse City store in 2015 but only became aware of the store in 2016. 7. Ms Huang confirmed that Korean beauty products were sold by her business to Ms Xie but asserted that neither she nor her husband ever delivered the products to the Muse City store in Pitt Street but only to the store in Zetland. She expressly denied that either she or her husband had delivered beauty products to the Muse City store on occasions in 2017. Ms Huang stated that her husband completed all the deliveries of the products and that no-one from her business delivered products to the Muse City store as she only became aware of the address of the store in January 2018. Ms Huang expressly denied that as at February 2017 she knew where the Muse City store was operating in Pitt Street. She said she was only aware that a store was in the city but not its address. Ms Huang denied that she had conversations with either Ms Xie or Ms Bai when she delivered products from her business to the Muse City store in 2017. 8. Ms Huang accepted that the Korean beauty products supply business which she ran received payments from customers in cash and by way of bank transfer. She gave evidence that payments were divided equally by these means: T789.50. Whilst denying that she had a lot of cash in her home, Ms Huang accepted that as at 15 January 2018 she had $60,000 in cash at her house: T790.6. She denied that she had more than this sum in cash at her house and, in particular, that she had $130,000 in cash at her house as at 15 January 2018: T790.31. Ms Huang said the cash came from sales from the Korean beauty products business and also moneys from her mother-in-law. 9. Ms Huang confirmed that in the second half of 2017 she had a desire to open her own beauty salon: T791.1. She agreed that she travelled to South Korea in January 2018 to learn beauty techniques and that, as part of her business, she selected the products from Korea to sell in Australia and promoted the products on WeChat: T791.16. The products she sold were purchased partly by beauty salons and also by individual customers. Ms Huang specifically denied that she visited the Muse City store before 25 November 2017 as she did not have the address for it: T791.48. Ms Huang gave evidence that she met Ms Xie through a mutual friend, Ms Elaine Wang, in the middle of 2016. Ms Wang introduced Ms Xie to Ms Huang by way of WeChat in the middle of 2016: T792.26. Ms Wang informed Ms Huang that Ms Xie had a beauty salon: T792.29. Ms Huang denied that the Muse City store was ordering a lot of products towards the end of 2017 and stated that Ms Xie ordered Korean beauty supplies by WeChat and not by telephone: T792.47; Court Book page 104, paragraph 8e); T793.41. 10. Despite paragraph 5 of her first affidavit at Court Book page 52, Ms Huang said that the conversation with Ms Xie on 25 November 2017 was by way of WeChat and not on the telephone: T794.5-.15. She said she had lost the copy of the WeChat exchange with Ms Xie. Also, despite paragraphs 5-9 of her first affidavit at Court Book pages 52-53, Ms Huang said that the conversation there set out did not entirely occur on 25 November 2017 but on that date, Ms Xie "merely just brought up the idea" in relation to the proposed new store and the more detailed discussion was on 9 December 2017 with Ms Xie: T794.7-.49. This evidence from Ms Huang is inconsistent with paragraphs 5-9 of her first affidavit: see particularly at T794.38-.45. 11. Ms Huang denied that in August 2017 she attended the Muse City shop and had a conversation with Ms Xie at that time. Ms Huang also stated that Ms Xie informed her that the products she was ordering in 2017 were for her personal use: T796.3-.28. Ms Huang accepted that she knew that Ms Xie owned a beauty salon at the time: T796.21. Ms Huang denied the proposition that in 2017 she knew that the Muse City store existed and was ordering a lot of products from her: T796.35. In the end, Ms Huang agreed that paragraph 5 of her first affidavit at Court Book page 52 was not a discussion which happened on 25 November 2017 as set out: T797.46 cf T797.4. Ms Huang denied that she had a conversation with Ms Xie on 4 December 2017 in which there was a discussion on WeChat about opening a shop together: T798.12. Ms Huang said there was a WeChat discussion but not about opening a shop together but rather Ms Huang opening a shop by herself. 12. Ms Huang was asked questions about the important meeting on 9 December 2017 with Ms Xie. She agreed that she, her husband and her son were present as were Ms Xie and Ms Xie's mother. Despite her first affidavit asserting that Ms Bai was present and was Ms Xie's mother (paragraph 10), Ms Huang accepted that her first affidavit was incorrect to that extent and was a mistake: see also Court Book pages 106-107. Ms Huang confirmed that Ms Bai was not present at the meeting on 9 December 2017: T799.47-T800, especially at T800.22. Ms Huang thus agreed that her affidavit was incorrect to the extent that she said that Ms Bai was at all times present and joined in confirming the matters stated by Ms Xie: T800.40; Court Book page 107, paragraph 13. Ms Huang denied that she knew this was incorrect when she placed it in her first affidavit. 13. Ms Huang was then cross-examined about the version of the conversation at the 9 December 2017 meeting which was set out in her first affidavit at Court Book pages 106-7. She denied that the account was incorrect and the matters stated had not been said by Ms Xie at the meeting: T801.21 and following. 14. Ms Huang agreed that she had a discussion with Ms Xie at this meeting in relation to the Muse Waterloo shop and that Ms Xie asked her to invest in the shop. Ms Huang denied the suggestion that she told Ms Xie on 9 December 2017 that she wished to manage the Waterloo shop or that Ms Xie said to her at the meeting that she wished her to manage the Muse Waterloo shop. Ms Huang gave evidence that she told Ms Xie prior to the 9 December 2017 meeting that she wished to open her own beauty shop. Ms Huang said there was no discussion with Ms Xie at the 9 December 2017 meeting about her managing the Muse Waterloo shop. Ms Huang confirmed paragraph 16 of her first affidavit at Court Book pages 54-5 in relation to what was said to her by Ms Xie. 15. Ms Huang was then asked about the meeting at the Chatswood restaurant on 24 December 2017. She agreed that she and her husband met with Ms Xie and Ms Bai at Chatswood on that day and she was informed that Ms Xie and Ms Bai wished to open a new Muse shop in Waterloo: T809.22. Ms Huang denied the proposition that at the meeting Ms Xie told her that the solicitors' fees to draft the contract would be about $8,000 but accepted that Ms Xie told her that "to start the paperwork" $8,000 was needed: see paragraph 18 at page 56 of the Court Book. Ms Huang gave evidence that she agreed to give Ms Xie and Ms Bai $8,000 as a deposit at the meeting: T810.25. Ms Huang said that the deposit payment was made to show that she was interested in investing in the Muse Waterloo shop: T810.28. She agreed that after the meeting, her husband transferred the $8,000 to the account nominated by Ms Xie. 16. Ms Huang stated that a purchase price of $180,000 had been mentioned to her by Ms Xie on the telephone in the period between 9 and 24 December 2017 and was again mentioned as an introduction at the meeting. She stated that at the meeting the purchase price for a share of the business was discussed: T811.2 and T811.46-.50 and T812.4. There were then some questions asked about whether the $138,000 for the 20% share was proposed by Ms Xie or Ms Huang. Ms Huang appeared to accept that there were some discrepancies between her two affidavits on this issue but gave evidence that she told Ms Xie that she thought $180,000 was too high and Ms Xie then offered the price of $138,000: T812.44-T813.12. Ms Huang denied Ms Xie's account that the price of $138,000 for the proposed investment was discussed with Ms Xie after the meeting: T813.16. Ms Huang also denied making up the accounts of the 24 December 2017 meeting set out in her first two affidavits at Court Book page 56 and Court Book page 108. In particular, Ms Huang gave evidence that she did not discuss with Ms Xie on 24 December 2017 becoming the manager of the Muse Waterloo shop. 17. It is noted that the word "wage" is referred to in paragraph 19 of Ms Huang's first affidavit at Court Book page 56. Ms Huang rejected the proposition that she was giving false evidence and that she wished to be the manager of the Muse Waterloo shop and expressed this desire on 24 December 2017 at the meeting: T817.35. Ms Huang also rejected the proposition that she made a counter offer of $138,000 in response to Ms Xie's offer of $180,000 for the investment: T817.39; see also T817.12. Ms Huang denied having any telephone conversation with Ms Xie after the meeting on 24 December 2017 during the remainder of that day: T818.16. In addition, Ms Huang confirmed that she asked to see the books and records, trade results, WeChat accounts and software of the Muse City shop at the meeting on 24 December 2017: T818.26; T820.23. 18. Ms Huang also rejected the proposition that after the meeting on 24 December 2017 that she told Ms Xie to put the investment contract in Mr Nam's name and said that most of the discussions with Ms Xie were on WeChat: T820.45; T821.4; see also Exhibit 6. 19. In relation to the WeChat exchanges in Exhibit 6, Ms Huang rejected the proposition that she understood that Ms Xie had asked the solicitor to prepare the draft agreement because there had been a concluded agreement reached between Ms Huang and Ms Xie for Ms Huang to invest in the Muse Waterloo store and to be its manager: T822.42; T824.7; T824.47. Ms Huang also rejected the proposition that Ms Bai sent by WeChat pricelists of the Muse City store because by this time Ms Huang was an investor with a concluded agreement: see Court Book pages 686-707; T826.33. Ms Huang stated that she believed she was sent this information as Ms Xie and Ms Bai wanted to sell the shares and they were promoting the opportunity to her: T827.3-.12. 20. It was put to Ms Huang that she met with Ms Xie and Ms Bai at her house at Colebee with Ms Huang's husband on 28 December 2017 and this was rejected. She also rejected the proposition that Ms Xie had earlier provided to her a draft of a share subscription agreement with Mr Nam's name on it: T827.21-.31. It is noted that the WeChat message in Exhibit 6 at 11:20am on 25 December 2017 has Ms Huang providing her husband's details to Ms Xie. Ms Huang agreed that she later sent her own details to replace her husband's name in the contract: Court Book page 144. Ms Huang denied that she sent the message with her details because she had been provided with a draft contract in the name of her husband at a meeting on 28 December 2017: T830.31-.40. 21. Ms Huang was cross-examined in relation to her version that she essentially "waited" between 24 December 2017 and 15 January 2018 to be sent a draft contract by Ms Xie and Ms Bai. Exhibit 6 establishes that there was some WeChat contact between the parties on 25 December 2017. Ms Huang confirmed her evidence that in this period she essentially waited to be provided with a draft contract and to be given an opportunity to observe the Muse City shop, its records and the relevant software: T834.9-.21. Ms Huang denied that a meeting occurred on 28 December 2017 where she asked Ms Xie to change the details of the contract into her name: T834.25. Ms Huang also denied that as she was in Korea from 3 January to 15 January 2018 that she was not "waiting" for Ms Xie. Her evidence, in substance, was that Ms Xie could have provided her with a draft contract in the period from 24 December 2017 to 3 January 2018 or invited her to observe the shop in this period: see T835.12-.20; Court Book page 136, paragraphs 49-50; T844.33. 22. Ms Huang was then asked a number of questions about the arrangements made for the meeting which occurred on 15 January 2018 including the WeChat screenshots in the Court Book particularly at pages 424 and 439. Despite the WeChat messages, Ms Huang said that her memory was that she was the person who sought to arrange the meeting on 15 January 2018. Ms Huang accepted that 15 January 2018 was the first opportunity when she could have met with Ms Xie and Ms Bai and that the WeChat messages on their face had Ms Xie seeking a meeting. 23. Ms Huang agreed that a meeting occurred on 15 January 2018 between her, her husband and Ms Xie and Ms Bai: T846.15. Ms Huang denied that she already had a draft of the contract on this day as it had been given to her by Ms Xie on 28 December 2017: T846.18. Ms Huang agreed that at 2:25pm on 15 January 2018 a copy of the draft contract was forwarded to her husband by email: T847.19. However, she rejected the proposition that her husband went upstairs to print the contract for signing and the printer ran out of ink. She also rejected the proposition that her husband offered to give Ms Xie and Ms Bai $130,000 in cash being the outstanding amount under the investment: T847.21-.28. Ms Huang said that she went upstairs to get the money after her husband had gone upstairs in her house to check that the email arrived with the draft contract: T848. Ms Huang said that she took a photograph of the money to be handed over before she brought it down. She then proceeded to pay the $60,000 in cash to Ms Xie and Ms Bai: Court Book page 57, paragraph 27; T848.7. 24. Ms Huang confirmed that a receipt was provided to her for the money by Ms Xie and Ms Bai which was signed by Ms Xie and Ms Bai: see Court Book page 276; T849.39. Ms Huang said that she did not have an opportunity to review the receipt on 15 January 2018 cf T852. Ms Huang confirmed that nowhere in the receipt was the word "deposit" mentioned or that the receipt said the money was refundable: T856.4-.14. This should be contrasted with the receipt for the initial $8,000 payment at Court Book page 64 where the word "deposit" is mentioned. 25. Ms Huang was asked why she needed to pay a "second deposit", having regard to the $8,000 deposit. Ms Huang responded as follows: "Q. Why would you need a second deposit when you had already given a deposit of $8,000 back on 24 December 2017? A. INTERPRETER: So initially when I gave her the $8,000 as deposit they didn't treat me or deal with me very proactively, so at that point I thought ‑ I considered that there was a possibility that they have other investors involved, but at this point I was very interested in her business, so in order to express my sincerity I told her that I could pay her an additional $60,000 as deposit, and I told her that it would be a refundable deposit, to which she agreed, and I had hoped that after paying this deposit, that she would give me more priority." (T858.14-.22). 1. When it was put to Ms Huang that $68,000 was "much more than a deposit" she said that she had never purchased into a business before so she did not know: T859.9. 2. Ms Huang rejected the proposition that the additional $60,000 paid by her was not a deposit: T859.14. 3. In relation to paragraph 26 of her affidavit on page 57 of the Court Book, Ms Huang conceded that Ms Bai did not repeat the same statement as said by Ms Xie despite her affidavit. Ms Huang said that the comment by Ms Bai was a shorter version repeating that if the transaction did not continue that they would refund the moneys: T861. 4. Ms Huang confirmed that they then all left to go to the Muse Waterloo shop. She denied the proposition that she and her husband had plenty of time to review the draft contract forwarded to them by email on 15 January 2018 before they left for the Muse Waterloo shop. She said she and her husband both had to prepare in relation to their child for the departure: T863. Ms Huang said that it would have taken about 20 minutes to prepare for their departure: T895.22. 5. There was then cross-examination of Ms Huang in relation to the WeChat messages posted by Ms Xie on 15 January 2018 as referred to in Ms Xie's 8 June 2021 affidavit. Ms Huang confirmed that a video posted by Ms Xie of her child was made at her house on 15 January 2018. She believed she did not record the video herself. Ms Huang said that she could not confirm when the video was posted and could not remember what she was doing at that time: T897.22. She rejected the proposition that at 2:52pm on 15 January 2018, she had not started to prepare to leave her house to go to the Muse Waterloo store. Ms Huang stated that when Ms Xie sent the email with the draft contract she was invited to go to the Muse Waterloo store. This was at 2:25pm. On her earlier evidence, Ms Huang said that after she and her husband were told that the draft contract had been sent, her husband went upstairs to check that the draft had arrived by email and she then obtained the money which she gave to Ms Xie and Ms Bai. She stated that they counted the money and prepared the receipt. At about this time, the video posted by Ms Xie was filed and Ms Huang and her husband were preparing to leave their house to go to the Muse Waterloo shop: : T898.8; T898.43 – T899.4. 6. These various matters, if accepted, would suggest that there was little time between 2:25pm when the draft contract was received and when Ms Huang and Mr Nam left their house to travel to the Muse Waterloo shop, to review the draft contract. Ms Huang confirmed that Ms Xie and Ms Bai counted the money which she handed over. She said it was unnecessary for her to count the money as she had already counted it: T899.21. 7. There was then considerable cross-examination of Ms Huang in relation to proposed price lists for the Muse Waterloo store which were sent to Ms Huang by Ms Xie and Ms Bai. Ms Huang accepted that she was sent a copy of price lists by WeChat on at least two occasions, including on 25 December 2017 by Ms Bai and also on 18 January 2018: T900.7. She confirmed that she looked at the price lists with Ms Xie and Ms Bai on 15 January 2018. In relation to the price lists at Court Book pages 511-519, Ms Huang said she did not request the price lists to be sent to her and she did not suggest or add to the price lists including with Ms Xie and Ms Bai at her house on 15 January 2018. Ms Huang said she understood that the price lists were sent to her to show the differences in the services available at the Muse Waterloo shop and the changes which had been made. Ms Huang said that she looked at the price lists but did not do anything to them and she did not see Ms Xie and Ms Bai making alterations to the price lists on 15 January 2018. 8. Ms Huang seemed unclear as to whether as at 15 January 2018 her understanding was that the Muse Waterloo shop would be opening soon (T903.3), but rejected the proposition that she was to be the manager of the Muse Waterloo shop and that was why she paid the $60,000 to Ms Bai and Ms Xie on 15 January 2018. Ms Huang said the amount was not paid because she wished to invest and manage the shop but was paid as a refundable deposit: T903.5-.16. 9. Ms Huang also rejected the suggestion that she went to Ms Xie's home on 16 January 2018 to work on the price lists and was involved in updating or changing them as set out in Ms Xie's affidavit evidence. 10. There was then considerable cross-examination of Ms Huang in relation to the WeChat screenshots commencing at Court Book page 422. It was put to Ms Huang that the screenshots suggested that she changed or approved alterations to the price lists which she rejected. In relation to screenshot 4 referred to in the Court Book at page 423, Ms Huang importantly referred to the statement "we will take the latest price list and contract to you when you come back". Ms Huang said that Ms Xie wished to give her the latest price list as well as the contract which she had asked for. Ms Huang said she assumed that Ms Xie wanted to bring her the contract when she was back from Korea. She said she wished to see the contract as soon as possible. Ms Huang said she did not amend or change any price lists forwarded to her by Ms Bai or Ms Xie. Ms Huang also rejected the proposition that she made suggestions to Ms Xie and Ms Bai which were included in the price lists. 11. Ms Huang was then asked a number of questions about training allegedly provided to her from 17 January 2018 at the Muse City store. She rejected the proposition that Ms Bai or Ms Lo gave her training in beauty therapy skills at the Muse City store in this period. She also denied that she watched training videos on Ms Bai's computer whilst attending the Muse City store. Whilst agreeing that she went to the Muse City store on 17 January 2018 (T910.49), Ms Huang said that she went there to learn the situation at the shop including the equipment used to consider whether it was worth investing in: T912.23. She denied that she went there partly to learn beauty therapy techniques from Ms Bai. 12. Ms Huang agreed that at the time, Ms Xie wanted Ms Bai to explain some of the treatment processes to her but that was not, in her view, providing training. Ms Huang, for example, said that she was not given training on an OPT hair removal machine at the Muse City store on 18 January 2018 by Ms Bai but the machine was turned on and Ms Huang looked at it for about five minutes. Ms Huang agreed that she stayed at the Muse City store on 18 January 2018 between the hours of about 10am and 3pm. Ms Huang denied that she was learning beauty therapy skills on this day as both Ms Bai and Ms Lo were very busy. Ms Huang also rejected the proposition that Ms Bai allowed her to transfer her treatment techniques onto her computer for her to learn at home on the basis that she did not distribute them to other persons. In particular, Ms Huang rejected that she copied her treatment video clips to her computer: T915.48 – T916.3 and T916.19. 13. It was put to Ms Huang that in mid-January 2018, after the 15 January 2018 meeting, she attended on a number of occasions in the evening at Ms Xie's house where Ms Xie taught her beauty therapy treatments: see Court Book page 433, screenshot 24. Ms Huang rejected this proposition and said that at the time she could not drive and needed to look after her child. 14. It was put to Ms Huang, in the light of Court Book page 541, that on 24 January 2018 she was taught to use the OPT machine at the Muse City store. Whilst agreeing that she sent the message at 8:46am on 23 January 2018 (Court Book page 541), Ms Huang denied that she had been "trained" by Ms Bai in using the OPT machine. She said she was given a brief introduction only by Ms Bai and not training. Ms Huang gave evidence that on 24 January 2018 Ms Bai was not present during the day while she was at the Muse City store. Ms Huang denied that Ms Lo trained her in beauty therapy skills on 24 January 2018 at the Muse City store. 15. Ms Huang rejected the proposition that she went to the Muse City store on 25 January 2018 and that Ms Xie trained her in beauty therapy skills on that day. 16. Ms Huang was then taken to various entries in the Court Book at pages 429, 433, 447 and 541 where she sent WeChat messages but rejected that these stood for the proposition that she had been given training by Ms Xie, Ms Bai or Ms Lo. Ms Huang said that she was not given any training. She agreed that she did not say in these WeChat messages that she was not getting training. 17. Ms Huang denied the proposition that she had never asked to see the financial records of the Muse City store and said she had brought it up on a number of occasions. She asked to go through the records earlier on 24 January 2018 but Ms Xie and Ms Bai said it was not convenient at that time. Whilst accepting that her request to review the financial records for the Muse City store was not reflected in the WeChat exchanges, Ms Huang said she did bring it up with Ms Xie and Ms Bai on a number of occasions, including on 23 January 2018. Ms Huang also asserted that she wished to do due diligence in relation to the Muse City store. 18. There was then extensive cross-examination in relation to various WeChat messages from Ms Huang where she referred to phrases such as "our new shop" (Court Book page 430), "our second shop" (Court Book page 434), and "our guests" (Court Book page 545). Ms Huang in substance said that she was giving her thoughts or suggestions only to Ms Xie and Ms Bai and it did not reflect that she regarded herself as an owner of the Muse Waterloo company or the manager of the Muse Waterloo shop. Ms Huang said that they sometimes used words to make the relationship "closer" but stated that the parties were still negotiating: T927.46. This included in relation to the interchange of views concerning the opening of the Muse Waterloo shop. Ms Huang said she shared her thoughts but Ms Xie and Ms Bai still made the decisions: T929.22. Ms Huang accepted that on 18 January 2018 she was asked to find someone to arrange the opening of the Muse Waterloo shop and she did identify a person and referred the event company to Ms Bai. However, Ms Xie and Ms Bai made the decision in relation to the company. She denied that at that stage she was the owner of the Muse Waterloo shop. 19. Similarly, Ms Huang said she forwarded photographs of beauty equipment and a website link but was not making suggestions for products or equipment to be used at the Muse Waterloo shop but was bringing the matters to the attention of Ms Xie and Ms Bai. 20. In my view, it appears from the various WeChat messages that Ms Huang was making suggestions to Ms Xie and Ms Bai and expressing her thoughts in relation to the Muse Waterloo shop. However, this is not determinative as to whether there was objectively a binding agreement between them at this stage. However, it is consistent with Ms Huang being very interested in the Muse Waterloo business. 21. Ms Huang was then asked a number of questions about WeChat exchanges concerning the preliminary design of a business card. While she accepted that she was part of WeChat exchanges as to this, she said she did not regard the decision as to the cards to have anything to do with her. She said the Muse Waterloo store was not open then and she did not care about the cards. Similarly, Ms Huang said that she did not know that the WeChat exchanges were aimed at printing business cards, including business cards for her. In particular, Ms Huang said that she did not know that she would be getting business cards with the title "Manager" on them. 22. Ms Huang was taken in cross-examination by counsel for the Xie interests to the WeChat exchange on 25 January 2018 which is at Court Book pages 122-123. Whilst disputing Ms Xie's entry for that day, Ms Huang agreed that she sought to "discuss the contract details". Ms Huang said that the only draft contract she had received was the one sent to her on 15 January 2018 with Mr Nam's name on it and that was the contract which she wished to discuss. She said she had not received an amended version of the contract and thus needed a meeting to obtain a newer version. Ms Huang denied the suggestion that what was discussed in this WeChat exchange was an employment contract for staff at the Muse Waterloo shop (see Court Book page 471). Ms Huang said that what was referred to was the contract discussed on 15 January 2018 and said that she did not see the contract at Court Book page 471 at the time: see T941.24 and T942.41. She denied that the aim was to get the employment contract ready in advance for the opening of the Muse Waterloo shop as suggested by Ms Xie in her affidavit evidence: see Court Book page 394, paragraph 47(b). She specifically denied that she reviewed a version of the employment contract and provided her comments on it: T944.1. 23. Ms Huang was cross-examined about a meeting which she agreed occurred with Ms Xie and Ms Bai at the Muse Waterloo shop on 28 January 2018. She rejected Ms Xie's account of the meeting and, in particular, that she informed them that she was pregnant and her health was not good. Ms Huang agreed that there was a second meeting on that day at her house at which Mr Nam, herself, Ms Xie and Ms Bai were present but rejected Ms Xie's version of it at Court Book page 672, paragraph 23(b). 24. It was suggested to Ms Huang that on 29 January 2018 she blocked Ms Xie on WeChat. Ms Huang rejected this and said that Ms Xie deleted her as a WeChat contact. Ms Huang also rejected that she stopped taking Ms Xie's calls and responding to her WeChat messages. She stated that Ms Xie had her email address and could have contacted her if she wished. 25. Ms Huang denied making threats to Ms Bai in March 2018 to return the money paid or have the shops shut down: T946.26. She did agree that she asked Ms Bai to return her money as her father was ill. Ms Huang also denied posting threatening WeChat messages in November 2018 in relation to Ms Xie. She further denied making a friend request to Ms Xie at that time: see Court Book pages 413-414, paragraph 98. 26. Ms Huang was then asked a number of questions about various WeChat posts. She denied sending various posts: see Court Book page 744. Ms Huang agreed, however, that she posted the WeChat messages at Court Book pages 560-561, but said that she did not know the English word "swindler". Ms Huang said she eventually felt she had been defrauded by Ms Xie. Ms Huang stated that prior to 14 November 2018 she never thought that Ms Xie and Ms Bai had lied to her but she thought that they were simply reluctant to hand over the money she had paid. 27. Ms Huang agreed that she met Ms Lo on 14 November 2018 and then believed that she had been defrauded by Ms Xie and Ms Bai . Ms Huang said that she met Ms Lo on three occasions but the first contact was on 14 November 2018. She denied that she had met Ms Lo between 25 January 2018 and 13 November 2018, particularly in March 2018. 28. Ms Huang was taken to several WeChat posts in various other names and denied that these persons were friends of hers or that she had caused them to make the posts which were highly critical of Ms Xie: see at Court Book pages 556-570. 29. Ms Huang agreed that she and Ms Lo reported a case to the police on 22 November 2018 and this was the first time they had been to the police. Ms Huang denied that she had caused posts to be placed on WeChat in order to deliberately destroy Ms Xie's personal and professional life and thereby destroy the Muse Waterloo salon business: see T959 and T963-4. 30. Ms Huang agreed that she knew Ms Cindy Liu but had never met her in person. She said she had spoken to her by telephone and on WeChat. Ms Huang agreed that she had spoken to her on 22 November 2018 after she (Ms Huang) had emerged from the police station. Ms Huang said she and Ms Liu had later shared WeChat messages. She told Ms Liu that she and Ms Lo had been looking for her. Ms Huang denied that she had known Ms Liu for some time prior to November 2018 and had spoken to her in May 2018: T962.30-.41. 31. Ms Huang also denied that in the period between May 2018 and November 2018 she had worked with Ms Lo to post WeChat messages with the aim of destroying Ms Xie's professional and personal life and thereby destroying the Muse Waterloo Salon business: see T966.28 and T966.47. 32. It was put to Ms Huang by counsel for the Xie interests that after the discussions on 28 January 2018 with Ms Xie and Ms Bai, she went back to the Waterloo shop in February 2018, which she denied: T1065.10. Ms Huang also denied that she removed a skin testing machine from the Waterloo shop which was worth several thousand Australian dollars. Ms Huang said that she never visited the Waterloo shop in February 2018 and never took anything away from the shop: T1065.15 and .25. Ms Huang was taken to a receipt at Court Book page 625 which was said to be for the skin testing machine in question. Ms Huang said that she only went to the Waterloo shop when it was under construction and never went near the Waterloo shop after 28 January 2018. She also denied attending the Waterloo shop on 24 January and 28 January 2018: T1067.3. 33. Ms Huang said that on 28 January 2018 they did not meet at the Waterloo shop but at a café nearby: T1068.13; T1071.13; see Court Book page 112, paragraph 23. 34. It was put to Ms Huang that she was pregnant at the time she met with Ms Xie and Ms Bai on 28 January 2018 which she rejected: T1071.36. She also rejected that she told Ms Xie and Ms Bai on 28 January 2018 when they met that she was pregnant: T1071.40. 35. Ms Huang was taken to the WeChat screenshots at Court Book pages 548 and 553 (screenshot 9). Ms Huang rejected the proposition that she went to the Waterloo shop on either 23 or 24 January 2018. 36. In re-examination, Ms Huang was referred to questions she was asked about the receipt at Court Book page 66 and the fact that the words "refundable deposit" were not referred to in the receipt. Ms Huang said that on 15 January 2018, Ms Xie and Ms Bai "drafted something" and left it on the dining room table at her house: T1073.37. She said she did not read the receipt at any time before leaving the house on 15 January 2018 and also did not read it in any detail after her return on the day: T1073.49; T1074.2. She said she next looked at the receipt in February 2018 when she obtained legal advice following not being able to get her money back on 28 January 2018: T1074.6. 37. Ms Huang was then asked questions about the Chinese characters appearing in the receipt at Court Book page 66 and stated that a number of the Chinese characters were, in her view, unreadable. She stated that she did not know what "6W" meant in the second line of the receipt: T1075.14. Ms Huang clarified that she originated from Taiwan: T1075.18. Later the translation of the 15 January 2018 receipt was agreed by the parties: Exhibit F. 38. Ms Huang was asked a number of questions about paragraphs 5-9 of her first affidavit commencing at Court Book page 52. She confirmed that much of the conversation recorded in these paragraphs was by way of WeChat exchanges which she no longer had. Ms Huang confirmed that she had a rough recollection of the contents of the WeChat exchanges. In substance, Ms Huang said that she was told by Ms Xie that she and her business partner would like to open a shop in Waterloo. Ms Huang said that she told Ms Xie that she was to receive some training in Korea and when she returned she was going to open a shop too. She stated that Ms Xie indicated that they wished to find another partner to open the shop in Waterloo: T1077.20. She said that she also had a telephone conversation with Ms Xie prior to the 9 December 2017 meeting. In relation to the conversations reflected in paragraphs 5-9 of her first affidavit, Ms Huang said that some of the conversations occurred in telephone calls. 39. Ms Huang was asked a number of questions about alleged references in WeChat exchanges referred to in annexures to affidavits of Ms Xie to "our customers" and "our shop". Ms Huang disputed some of the translations and particularly the use of the possessive pronoun "our" in some of the WeChat messages. 40. Ms Huang stated that as at 23 January 2018 she did not think she was an owner or a shareholder in the Muse Waterloo company and also at that time did not think of it as her shop: T1081.21-.26. Ms Huang said that if agreement was reached there was a possibility that the shop would become her shop ("the possibilities will be there"): T1081.30. Ms Huang said she did not proceed with the transaction because she was pregnant but because of inconsistencies in the information she was told by Ms Xie and Ms Bai, including as to the numbers of customers per day (she only saw a few customers per day) and a lack of provision of information as to the turnover in the City shop being $600,000 with 3,000 customers. She also said she was not provided documentation showing that $350,000 to $400,000 was being spent on the renovation of the Muse Waterloo shop. She said these were the reasons why she did not proceed with the transaction: T1082.20-.40; T1083.8. 41. Later, Ms Huang was recalled with leave to give further evidence in chief. Ms Huang was taken to Annexure "FN-5" to the affidavit of Mr Ngo affirmed 30 June 2021, which became Exhibit 13 in the proceedings. Ms Huang said she recalled that she added a new friend to her WeChat account on the afternoon of 22 November 2018 – that friend was Ms Cindy Liu. Ms Huang said that on that day she added Ms Liu to her personal WeChat address book. 42. Ms Huang gave evidence that prior to 22 November 2018 she knew Ms Liu existed as Ms Lo had told her about her on 14 November 2018: T1126.18. Ms Huang said that Ms Lo told her that Ms Liu was a previous customer who had invested some funds and had got her money back: T1127.6. Ms Huang said that the conversation with Ms Lo about Ms Liu was a short conversation. She said she added Ms Liu as a WeChat friend on 22 November 2018: T1127.46. 43. Ms Huang was cross-examined about the WeChat messages with Ms Liu which appear in Exhibit 13. She said that while she was at the police station, someone rang her and she was unable to take the call. She later returned the call and realised it was Ms Cindy Liu. She said to Ms Liu that she would call her again and that is why she sent her a message. Ms Huang confirmed that she spoke to Ms Liu by telephone prior to receiving the friend request in order to inform her of her WeChat identification number. She agreed that she mentioned in the conversation that she was at the police station and she told her she could not talk at that time. 44. Ms Huang was asked further questions about the receipt for $60,000 provided by Ms Xie and Ms Bai on 15 January 2018 whilst they were at Ms Huang's house at Colebee. Ms Huang denied that Ms Xie handed her a copy of the receipt. She said that at the time the receipt was completed it was placed on her table: T1130.2. Ms Huang also stated that she did not read the receipt on 15 January 2018. She said if she had read it she would have asked Ms Xie to re-write the receipt as some words were not legible to her: T1130.9. She denied that this was a lie. Oral evidence of Mr Nam 1. Oral evidence was given in the proceedings by Mr Yew Mun Nam who is the husband of Ms Huang. Much of Mr Nam's evidence was given in English, although on some occasions he sought assistance from the interpreter. He said he had lived in Australia for about 18 years and had studied at university level in Australia. 2. Mr Nam confirmed that between 2015 and January 2018 he ran a business importing and selling Korean beauty products. He stated that he sold the products to a number of customers and users including beauty salons. He claimed that products were sold by the business not to the Muse City store but to Ms Xie: T1017.27. However, contrary to the evidence of Ms Huang, Mr Nam agreed that he had delivered products twice to an address in Pitt Street and twice in relation to products ordered by Ms Xie to an address outside a restaurant in Chinatown: T1017.31; T1022.35. In relation to deliveries to the My Like store in Zetland, Mr Nam said he had delivered orders to an address provided in Zetland but said the address for Ms Xie in Zetland was not given to him but was given to Ms Huang: T1017.43. He said deliveries when made were paid for by way of cash or bank transfer. 3. Mr Nam said that as at January 2018 he kept money at home in a safe. He said that as at 15 January 2018 he had $60,000 in cash at home in his safe but denied that he had more than that sum and, in particular, denied that as at 15 January 2018 he had $130,000 in cash at a safe in his home: T1018.28. He said the $60,000 in cash came from his parents and from savings from his work. In relation to the Korean beauty products business, Mr Nam said that he delivered the products based on the order and he and his wife discussed the products and ordered them together from Korea. 4. Mr Nam agreed that in the latter half of 2017 his wife wanted to open her own beauty salon: T1020.25. He also agreed that on 3 January 2018 his wife went to Korea to learn beauty therapy techniques. He said he did not accompany her. He denied that at this time his wife delivered beauty products as part of the Korean products business or visited customers including attending beauty salons. He agreed that his wife was the customer relationship person in the business and handled customer contacts. However, he denied that she visited customers from time to time including the Muse City shop before January 2018: T1020.39; T1021.17. 5. Mr Nam said he could not remember delivering products from the Korean business to the Muse City store in February 2017 but accepted that it was a possibility: T1021.43; T1022.11. He recalled delivering goods to a Pitt Street address for Ms Xie twice as he recalled that it was a very difficult address to deliver goods to. He said the customer came down to pick up the goods from him on those occasions: T1022.17. He said his recollection was that the deliveries occurred between June 2017 and November 2017. In total, he recalled four deliveries of Korean beauty products and these were delivered to Ms Xie not the Muse City store: T1023.25. At this time, Mr Nam said he did not know Ms Bai and the orders were placed by Ms Xie. He denied that he delivered quite a lot of products to Ms Xie at various addresses: T1023.49. 6. Mr Nam was cross-examined about his evidence in his affidavit at Court Book page 159, paragraph 12. Mr Nam's evidence was somewhat unclear in relation to the contents of this paragraph: T1024 and following. He confirmed that as at November 2017 he knew that Ms Xie owned the Muse City salon in Pitt Street, despite initially denying that: T1026.34. Despite the last wording in paragraph 12 of his affidavit at Court Book 159, Mr Nam said that most of that paragraph was discussed with Ms Huang after the first meeting with Ms Xie on 9 December 2017: T1025.17-.41; T1026.7. In particular, he confirmed that he had a discussion with Ms Huang to the effect set out in the paragraph: T1028.17; T1029.5. Mr Nam said that he understood that Ms Huang had contact with Ms Xie after the 9 December 2017 meeting: T1029.30. 7. Mr Nam confirmed that on 9 December 2017 he went with Ms Huang and his son to a restaurant for breakfast and met Ms Xie. He said that Ms Bai was not present but Ms Xie's mother was there. He said paragraph 13 of his first affidavit was incorrect when he said that Ms Xie's mother, Bai, was present: T1030.30. 8. Mr Nam denied that Ms Huang and Ms Xie did most of the talking and stated that Ms Xie did most of the talking and he asked her questions about how the business was going and what the turnover was. He said Ms Xie said that the Muse City store had a turnover of $600,000 per year with 20 to 30 customers per day: T1030.48. He said Ms Huang was mostly listening to what Ms Xie was saying. He said effectively Ms Xie was promoting the success of her shop in the city and that was why they were proposing to open a new shop: T1031.15. 9. Mr Nam denied that Ms Huang said at the meeting that she wanted to manage the shop and work as a beautician: T1031.22. However, he said that at the meeting on 24 December 2017 Ms Huang agreed that if they proceeded with a purchase of a shareholding in the business that she would consider being the manager of the new store at Waterloo: T1031.25. 10. Mr Nam denied the proposition that the price for the shareholding in the Muse Waterloo shop was not discussed in the meeting on 24 December 2017 but was discussed later. He said the price for the shareholding was discussed in the meeting on 24 December 2017: T1032.1. 11. It was put to Mr Nam that he was wrong in relation to his account of the meeting on 9 December 2017 when he states that he asked what the shareholding was. He confirmed that he asked in relation to the shareholding as Ms Bai was mentioned. He denied making this evidence up. He also rejected Ms Xie's account of the 9 December 2017 meeting. 12. In relation to the meeting on 24 December 2017, Mr Nam confirmed that he attended the meeting with Ms Huang and that Ms Xie and Ms Bai also attended. He agreed that he and his wife were told that Ms Xie and Ms Bai were opening the new shop in Waterloo: T1033.13. He denied that Ms Xie requested $8,000 towards solicitors' fees. He said that Ms Xie requested $8,000 as a refundable deposit and when the amount was paid she would get her solicitor to prepare a draft contract. He said he did not understand from what Ms Xie said that the money was paid for the solicitor to draft a contract. Mr Nam agreed that the $8,000 was paid as a deposit. He rejected Ms Xie's account of what occurred on 24 December 2017 including at the meeting. It was put to him that an offer by Ms Huang to pay $138,000 for a 20% shareholding did not occur in the 24 December 2017 meeting but after the meeting. He rejected that. In particular, he rejected that he and Ms Huang went home after the meeting, discussed the matter and Ms Huang made the offer over the telephone to Ms Xie. He also denied that Ms Huang said that she wanted to become the store manager of the Muse Waterloo shop. Mr Nam accepted that after the 24 December 2017 meeting he transferred the $8,000 to Ms Xie as a deposit and that that is reflected on the receipt at Court Book page 64. He said he made the transfer under the entry "Shop 2 deposit". Mr Nam denied that at the end of the 24 December meeting there was a concluded agreement with him and his wife to invest $138,000 in the Muse Waterloo shop. 13. It was put to Mr Nam that on 28 December 2017, Ms Xie and Ms Bai met at his house with Ms Huang and that Ms Xie gave a copy of the proposed contract in his name to them on that occasion. This was denied. 14. Although initially asserting that Ms Huang had requested that the contract name be altered to her name on 24 or 25 December 2017, in the light of Exhibit 6, Mr Nam accepted that it was after that date: see Court Book pages 144 and 147; T1037.26; T1038.45. Mr Nam gave evidence that he understood that Ms Huang sent the new details to Ms Xie but he did not know whether Ms Xie sent those details to her lawyers on the same day. Mr Nam again rejected the suggestion that on 28 December 2017 Ms Xie and Ms Bai came to their house and handed them a draft contract with his name on it which he and Ms Huang later realised had to be changed. 15. Mr Nam stated that between 24 December 2017 and 15 January 2018 he heard no news in relation to the contract: T1041.10. 16. Mr Nam was then cross-examined about the meeting on 15 January 2018. He agreed that on that date he and Ms Huang met with Ms Xie and Ms Bai at their house at Colebee. He stood by his account of the meeting in his affidavit at Court Book page 162. Mr Nam accepted that $60,000 was paid in cash by him to Ms Xie and Ms Bai on this day. Contrary to the evidence of Ms Huang, Mr Nam claimed that the email attaching the draft contract from Ms Xie was forwarded after he had paid the $60,000: see T848; T1041.47. He denied that he tried to print the contract but the printer had run out of ink as he said he had no printer at his home. He said that after Ms Xie received the $60,000 she stated that she had a draft contract for them. 17. Mr Nam was asked why he handed over $60,000 as well as the earlier $8,000 when on his version they had not received a contract at all and had received no news from 24 December 2017 to 15 January 2018. He said that the stated turnover for the Muse City store of $600,000 per annum was a lot and this would mean there would be a return in a short period of time. He said he and Ms Huang were serious about a possible investment and trusted Ms Xie and Ms Bai: T1042-3. He rejected the proposition that the $60,000 was for an investment in the Muse Waterloo store and said it was a refundable deposit which was made clear on the day. He said the $60,000 was paid in addition to the earlier $8,000 deposit to show Ms Xie and Ms Bai that they were serious. 18. Mr Nam said they were also invited at this time to inspect the Muse Waterloo shop. He said they had never been invited before and he could have been invited to inspect the store while his wife was in Korea. He said at the time they were waiting for the draft contract and waiting an invitation to inspect the premises. 19. It was put to Mr Nam that he knew as at 24 December 2017 that his wife was proposed to be the manager of the Muse Waterloo shop. He said he agreed to this proposition subject to the purchase of the shares by them: T1044.49. 20. Mr Nam rejected the proposition that when the draft contract was received on 15 January 2018 he went upstairs to look at the email and also looked at the contract. He said that his wife went upstairs to get the money from their safe. 21. Mr Nam rejected the proposition that they offered to pay Ms Xie and Ms Bai $130,000 in cash on 15 January 2018 for the 20% share and said that they only had $60,000 in cash at that time: T1045.33. He denied that there was any discussion about paying the remaining $70,000 when skin care products were sold which were purchased for that amount in the Korean beauty products business. 22. Mr Nam agreed that he saw Ms Xie and Ms Bai write a receipt on 15 January 2018, but he said he did not read it on that occasion as they had been invited to go to the Muse Waterloo shop and they were preparing to leave. He said he had no time at all to look at the receipt and assumed that it was correct. Mr Nam said he did not look at the receipt until he sought legal advice in relation to his and his wife's position. He believed the receipt was the document at Court Book page 66. 23. It was put to Mr Nam that if the money paid was a refundable deposit he would have been keen to see the word "deposit" on the receipt. He said that they requested a receipt for a refundable deposit and trusted that the receipt reflected that. Mr Nam said he had difficulty reading the handwriting in Chinese on the receipt at Court Book page 66. He said that the receipt referred to the $8,000 as a request was made at the time by them for a receipt for that amount to Ms Xie and Ms Bai. He denied that Ms Huang had initially said that there was no need for a receipt as she trusted Ms Xie and Ms Bai. Mr Nam denied the proposition that Ms Xie said that as the Muse Waterloo shop would be opening in February 2018 they would use the money to renovate the shop and purchase new equipment items. 24. Mr Nam denied the proposition that at the time the money was handed over, Ms Huang, Ms Xie and Ms Bai were looking at price lists relating to the Muse Waterloo shop. 25. There was cross-examination about when they left the house at Colebee to go to the Muse Waterloo shop. Mr Nam said it was between 2:50pm and 3pm and no later. He rejected the proposition that they left at 3:20pm. He said the time it took to drive from Colebee to Waterloo depended on the traffic conditions. He agreed that they arrived at the Muse Waterloo shop at 4:05pm. He said that they were not able to enter the shop as it was still being constructed. 26. Mr Nam rejected the proposition that Ms Huang attended the City shop to learn beauty therapy techniques. He said he understood she went there to undertake due diligence not to learn. This included seeing the turnover and how busy they were at the Muse City shop 27. Mr Nam claimed to have attended a meeting near the Muse Waterloo shop in a cafe with his wife on 28 January 2018 and later attended a meeting at their home with Ms Xie and Ms Bai on the evening of 28 January 2018. He confirmed that he attended the meeting in the morning at a cafe near the shop as his wife could not then drive: T1052.25. 28. Mr Nam rejected the Xie account that Ms Huang said that she could not proceed with the transaction as she was pregnant and her husband did not wish her to work. 29. In re-examination, Mr Nam confirmed that 9 December 2017 was the first time that he met Ms Xie and her mother: T1053.13. He said that Ms Huang had earlier, prior to the meeting, mentioned that Ms Xie was in the process of opening a new store. He said that this was in late November 2017: T1053.17. Mr Nam said it was difficult to recall when he got information as he obtained it in "bits and pieces": T1053.25. However, he knew that a customer was opening a new store at Waterloo and was looking for shareholders. He agreed that most information relating to the investment was given at the meeting on 9 December 2017. Mr Nam confirmed that the receipt provided at the 15 January 2018 meeting was written by Ms Xie and was also signed by Ms Bai. He said he was not close to them when this was being done but saw them writing the receipt: T1054.8. Oral evidence of Mr Hui 1. In his oral evidence in chief, Mr Hui, Ms Lo's former solicitor, confirmed that the document, being the photograph of the purple copy of the receipt dated 28 November 2017, was provided by him following being retrieved by him from his current phone: T1112.22-.27. He said the name "Kitty Face of Love", being the name on the photograph, was associated with his client Ms Kitty Lo: T1112.40. 2. In cross-examination, Mr Hui said he had known Ms Lo since 2016 or 2017. He met her in relation to her lease of her beauty salon Face of Love at 60 York Street Sydney from a company associated with him. He said that when Ms Lo terminated the lease he moved his legal practice into the office suite. 3. In relation to paragraph 6 of his affidavit affirmed 18 October 2021, Mr Hui confirmed that on 29 November 2017 Ms Lo made enquiries of him whether a receipt, a photograph of which was forwarded to him by her, was sufficient proof of the payment of $60,000. He did not recall speaking to Mr James Li, solicitor, in relation to the receipt. Mr Hui said he vaguely recalled speaking to Mr Li about the agreement on or around 29 November 2017 but could not recall the exact date. Mr Hui said he told Ms Lo that the receipt was part of the evidence but advised her to have inserted in the agreement a clause specifically referring to the payment of the $60,000 by her. Oral evidence of Mr Li 1. Oral evidence was given by Mr Gen (James Li) who is a solicitor working for Sun Lawyers. He was the solicitor acting for Ms Xie and Ms Bai in relation to the transactions with Ms Lo in late 2017. 2. In his affidavit, Mr Li gives a different account to Ms Lo of the events of 29 November 2017. In particular, his evidence differed from Ms Lo in relation to the receipt which Ms Lo claims that Ms Bai and Ms Xi gave her for $60,000 which she said she advanced to them in cash. Mr Li said that he did not recall seeing or discussing the receipt: at [14]. He also sets out in his affidavit the circumstances of his various meetings with Ms Lo and Ms Xie and Ms Bai on 29 November 2017. 3. There is a difference in the evidence in relation to the presence of Ms Bai at the offices of Sun Lawyers on 29 November 2017 when Ms Lo was there. Mr Li gives evidence that Ms Bai attended with Ms Xie for the execution of the agreements. In her oral evidence, Ms Lo said that only Ms Xie was present. 4. Further, there is a difference in the evidence between Ms Lo and Mr Hui, the solicitor acting for Ms Lo at the time. Mr Hui states that he was sent a photograph of the receipt on 29 November 2017 by Ms Lo but he recommended to her by telephone that a clause be put in the agreement between Ms Lo and Ms Xie and Ms Bai referring to the payment. Ms Lo gave evidence that, in substance, Mr Hui advised her that the receipt said to be signed by Ms Xie and Ms Bai was adequate. 5. Ms Lo also claimed that Mr Li was present when she had "a serious argument" with Ms Xie about there being no clause in the agreements referring to the $60,000 she had paid. Mr Li denied that he was present when any argument occurred. 6. In cross-examination in relation to his affidavit, Mr Li referred to the annexures to his affidavit, including a file note which he had forwarded to Mr Hui on 29 November 2017 at 12:48pm outlining what had occurred in relation to the execution of the various agreements by Ms Lo (see pages 55-56 to Mr Li's affidavit). Mr Li said that the annexures to his affidavit were the only documents which he had to refresh his memory as he did not keep other file notes. However, in cross-examination, he stated that he did have an independent recollection of the events of the day on 29 November 2017, despite it being four years ago. 7. Mr Li confirmed paragraph 5 of his affidavit that on 29 November 2017 he had an appointment with Ms Xie for signing of the relevant agreements. Mr Li stated that he had been provided an email on the morning of 29 November 2017 from Ms Lo which had been sent to her by Mr Hui some days earlier on 23 November 2017 discussing the various agreements (pages 6-7 of the annexures to the affidavit). Mr Li said the email came to his attention at about 9am and he had had no prior contact with Mr Hui. 8. Mr Li stated in his affidavit that at about 10am Ms Lo came to his office. He said he did not contact Mr Hui before the meeting and did not respond to his email to Ms Lo at that time. Mr Li said that he based his belief that Ms Lo came to his office at 10am and Ms Xie and Ms Bai came at 10:40am on 29 November 2017 on the contents of his email which he later forwarded to Mr Hui recounting what had occurred on that day at his office. 9. Despite the contents of the email sent to Mr Hui referring to "my client", Mr Li denied that only Ms Xie attended his office when Ms Lo was there. He confirmed that Ms Bai was also present. Once the agreements were executed, Mr Li said he had no independent recollection of giving Ms Lo a copy of them. 10. Mr Li confirmed that he was not present when there were any arguments between Ms Xie and Ms Lo. He also denied that he suggested to Ms Lo that she take a photograph of the receipt for the $60,000 and forward it to Mr Hui, her solicitor. Mr Li accepted that in relation to his file note, it suggested that Ms Lo was present with at least Ms Xie from 10:40am to 11:30am. He said he could not assist in relation to what was being discussed by them during that time. 11. Mr Li denied that he suggested to Ms Lo that she talk to her lawyer Mr Hui in his presence. He also denied Ms Lo's account that he spoke to Mr Hui on Ms Lo's telephone in her presence and then proceeded outside to have a further discussion with Mr Hui. He again rejected the proposition that he suggested to Ms Lo that she forward a photograph of the receipt for $60,000 to Mr Hui and obtain his advice on it. Mr Li maintained that paragraphs 7-12 of his affidavit were correct. 12. Overall, I formed the view that Mr Li was doing his best to recall what had occurred on 29 November 2017 at his office. However, he had no file notes and was relying on his recollection and the documents which were annexed to his affidavit, particularly the email sent to Mr Hui by him later that day. 13. There are, accordingly, different affidavit versions of Mr Li, Mr Hui and Ms Lo about what occurred on 29 November 2017. 14. Mr Hui appeared to have a limited recollection of the day and relied heavily on the receipt by him of the photograph from Ms Lo and his file note which is annexed to his affidavit. 15. Considering the evidence of each of the witnesses, both in their affidavits and in their oral evidence, I prefer the evidence of Mr Li and Mr Hui as they had file notes which would have assisted them in their recollections. I think it is likely that Ms Bai was also present at the offices of Sun Lawyers with Ms Xie at the time Ms Lo was there. Her signature is on the shareholder's agreement executed by Ms Lo and Ms Xie. Whilst that is not definitive it suggests Ms Bai was present as Mr Li states. It would also have been convenient and sensible to have Ms Bai present to execute the agreement. I accept the evidence of Mr Li on this issue. 16. I also accept Mr Li's evidence that he was not present when there was an argument between Ms Lo and Ms Xie. I think it is likely that he would have recalled a "serious argument" between them. He may also have referred to the matter in his email to Mr Hui. 17. I also accept that Mr Li had a discussion with Ms Lo and left her in the conference room. I think it likely that at this time Ms Lo took a photograph of the receipt and forwarded it to Mr Hui and had a discussion with him about the receipt. I accept Mr Hui's evidence that he said the receipt was part of the evidence but a clause referring to the payment was to be preferred. I think it likely in the light of this advice from Mr Hui that Ms Lo raised the desirability of having a clause with Ms Xie when she arrived and there was an argument between them to the effect that Ms Lo gives evidence of. 18. Despite preferring the evidence of Mr Li and Mr Hui as to some aspects of 29 November 2017, I am comfortably satisfied from the evidence overall, including the evidence of Ms Lo and Mr Hui and Exhibit 14 and Annexure "JH-1" to Mr Hui's affidavit, that Ms Lo did forward a photograph of the duplicate receipt for the $60,000 to Mr Hui on 29 November 2017. At that time I find that she had the duplicate copy of the receipt. Further, I find that she had no reason to have fabricated the document herself at that time because she was entering into an agreement with Ms Xie and Ms Bai in relation to Muse City. They were planning a business future together. I will consider this further below. I am comfortably satisfied that $60,000 in cash was paid by Ms Lo to Ms Xie and Ms Bai in the period up to the evening of 28 November 2017 and that a receipt was given by Ms Xie and Ms Bai to Ms Lo for that cash on 28 November 2017: see Exhibits 2 and 8. I expressly reject the evidence of Ms Xie and Ms Bai to the contrary. I also reject the responsive submissions of the Xie interests to the contrary: paragraphs 42-45. Whilst I do not accept all aspects of Ms Lo's evidence, the evidence supporting the payment of the $60,000 and the provision of a signed receipt by Ms Xie and Ms Bai is compelling. It is supported by the evidence of Mr Hui. I take into account the serious nature of this finding. I will consider the implications of this finding below. Submissions 1. Extensive written and oral submissions were made by the various parties in relation to the claims made in the proceedings. 2. The initial written submissions of the Xie interests were, in general summary, as follows: 1. In the present case, in general terms, documentary evidence is to be preferred over the recollections of witnesses, particularly where there has been an effluxion of time and where litigation has intervened. The relevant events in this case occurred three or more years before the hearing. The documentary evidence is overwhelmingly in support of the Xie interests' case: paragraph 5; 2. The evidence of the Xie interests should be accepted that prior to 24 December 2017, Ms Huang and Ms Xie had been in contact with each other on a number of occasions during which a discussion occurred about Ms Huang investing in the Waterloo shop. Ms Huang was very serious about investing in the Waterloo shop: paragraph 7; 3. Whilst $8,000 was initially paid as a deposit, later verbal discussions between Ms Huang and Ms Xie on the telephone confirmed that Ms Huang would invest $138,000 and the $8,000 which had been paid as a deposit was committed to pay for a contract to document the verbal agreement more precisely: paragraph 9. This is supported by the reduction in the price from $180,000 to $138,000 for the share interest in Muse Waterloo: paragraphs 8-11; 4. The WeChat exchanges on 24 December 2017 and soon thereafter confirm the existence of a verbal binding agreement: paragraphs 13-16; 5. There is clear objective evidence that Ms Huang performed the binding verbal agreement by attending the Muse City shop to learn beauty techniques and by becoming involved in the management of the Muse Waterloo shop: see paragraph 18; 6. There was a variation to the verbal agreement at a meeting on 28 December 2017 between the parties by which the party to the contract was changed from Mr Nam to Ms Huang. This is supported by the WeChat correspondence between the parties: paragraphs 20-21; 7. Between 28 December 2017 and 15 January 2018 there was performance by the parties of the verbal agreement, including the formation of a WeChat account, through discussions on the price list, through Ms Huang suggesting products and through other WeChat exchanges: paragraph 22; 8. The 15 January 2018 meeting strongly supports the Xie interests' case. The payment of $60,000 in cash by Mr Nam and Ms Huang was clearly a further payment of an amount owing under the verbal agreement leaving $70,000 unpaid. There was no need for a second deposit as $8,000 had already been paid. Paying half the total investment for no reason is good evidence of part performance of the verbal agreement as contended by the Xie interests. The context supports a binding agreement: paragraphs 24-25. The receipt given also did not refer to there being a deposit but made reference to "the balance payment". This should be read as referring to the payment of an outstanding amount. There is no evidence to support the Huang interests' contention that the payment of the $60,000 on 15 January 2018 was a refundable deposit except through their self-serving statements of recollection: paragraphs 26-28; 9. There is various evidence showing performance of the verbal agreement from 15 January 2018 to 29 January 2018. Contrary to Ms Huang's submissions, she did not undertake inspection or observation of the Muse City business but undertook training. There were no records of written requests to inspect Muse City documents by Ms Huang. The documentary evidence overwhelmingly supports the case that Ms Huang attended the Muse City shop to learn beauty techniques and not to inspect its operation. There is no reference in the 29 January 2018 email demanding repayment to problems with the operation of the business: paragraphs 31-47. The evidence shows that Ms Huang was involved in the operation of the Muse Waterloo shop before it was opened; 10. As a result of the failure by the Huang interests to pay the balance of $70,000 owing under the final agreement, the Xie interests suffered damage as they had to organise and pay for the additional $70,000 to open the Muse Waterloo shop themselves and they were left without a manager, which role Ms Huang was to perform. The amount of $70,000 was to be used to fit out and assist in the opening of the Waterloo salon. When the Muse Waterloo salon failed, the Xie interests had a capital loss of over $132,000 which should be payable as damages by the Huang interests. In the alternative, the Xie interests are entitled to the amount of $70,000 unpaid under the binding verbal agreement; 11. The tort of injurious falsehood is established. The Muse salons depended on clientele and bookings for profitability. The Xie interests were the victim of an online campaign to destroy their reputation and thereby destroy the Muse Waterloo salon business. The emails in evidence clearly show malice. The court should find that the Waterloo salon failed as a result of the negative commentary. The court should be comfortably satisfied that Ms Huang was behind the online campaign. Ms Huang is the most likely author of the relevant posts and has engaged in an online campaign to destroy Ms Xie's professional and business reputation. As a result of this campaign, Ms Liu requested her investment to be repaid and this was due to the online reputational damage started by Ms Huang. 1. The Huang interests, in general summary, submitted as follows in their initial written submissions: 1. The Huang interests' case should be preferred. The two payments were refundable deposits as they were pending a final written agreement reflecting all the matters the Xie interests had represented and promised and following the obtaining of legal advice: paragraphs 7-8. A due diligence also had to be undertaken: paragraphs 10-11. A draft contract was never provided which reflected what had been promised: paragraph 12. The fact that the Xie interests later sold their business at a reduction on the funds that were invested was based on matters unrelated to anything said or done by Ms Huang or Mr Nam even on the account of Ms Xie and Ms Bai: paragraph 13; 2. The $8,000 receipt clearly states that it was a deposit and that was paid on 24 December 2017. If it was a part payment it would have been called that. This confirms that there was no concluded agreement on 24 December 2017: paragraphs 27-28; 3. There is no suggestion that the lawyers' fees to draft a document equated to $8,000. This shows a written agreement was to be put in place before any party was bound: paragraph 29; 4. The WeChat messages show that Ms Huang was contemplating opening up her own store prior to 9 December 2017: paragraph 32; 5. There is no contemporaneous document that supports the claim that there was a concluded agreement on 24 December 2017, 28 December 2017, or 15 January 2018: paragraph 33. The email exchange between Ms Xie and her solicitor, Mr Li, shows that there was no concluded agreement having regard to the details in the email where price is not mentioned and there is a reference only to "rough ideas": paragraphs 34-37; 6. The document with Mr Nam's name on it was, on its face, clearly a draft based on preliminary instructions. It was not a case where there has been a concluded agreement, detailed instructions in relation to which were provided and then it was drafted in that form: paragraph 40; 7. It should be rejected that a meeting occurred on 28 December 2017. There were no WeChat messages referring to the meeting or sending the draft contract before by email: paragraph 42; 8. The change in name of the contracting party was sought via WeChat, not at any meeting on 28 December 2017 or thereabouts. No contemporaneous documents referred to a meeting on 28 December 2017: paragraphs 45-46; 9. The claim that Ms Huang was picked as the manager should be rejected. She had no qualifications or experience: paragraph 49. The Xie interests already had a lease in place and had started the fit out: paragraph 50; 10. The lack of any evidence supporting Ms Xie's account concerning providing instructions to her accountant about the issue of shares orally on 28 December 2017, is telling. The accountant was not called and the proper conclusion to be made is that he could not and would not corroborate her claims. No documents were produced to suggest that the share issue had been discussed with the accountant on 28 December 2017 or at any time prior to 29 January 2018: paragraphs 52-53; 11. Further, if there was a concluded agreement, why was there no call by the Xie interests in WeChat messages for the full payment of the price said to be outstanding. The reason was that there was no concluded agreement and the parties were still treating with each other. Ms Huang still had to get legal advice and undertake due diligence on a new draft of the contract: paragraph 54; 12. The suggestion that the Xie interests rejected $130,000 in cash on 15 January 2018 should be rejected. There is no reason why they would not have taken the full sum on that date: paragraph 55; 13. The lease of the Waterloo store dated 8 December 2017 clearly predates any real discussions with Ms Huang. Accordingly there could not have been any venture or understanding with her going back to August 2017: paragraph 57; 14. If there had been a meeting on 28 December 2017 and a contract in fact handed over by the Xie interests, one would expect WeChat messages discussing it, pointing out errors and raising other issues. There were no such documents in evidence: paragraph 66; 15. The receipt of 15 January 2018 does not assist the Xie interests' case but merely stands as evidencing the receipt of $60,000: paragraph 68; 16. The evidence of Ms Lo should be accepted that she never trained Ms Huang despite the claims of Ms Xie and Ms Bai: paragraph 70; 17. Ms Lo should be accepted that $60,000 was paid by her and that Ms Xie and Ms Bai provided a receipt. This was a clear lie by Ms Xie and Ms Bai and substantially affects their credit: paragraphs 71-73. This is supported by the falsity of Ms Xie in relation to instructions said to have been given to her accountant. In fact, instructions were given to the accountant only in late January 2018 and these instructions were backdated to 28 December 2017: paragraph 85; 18. There was no injurious falsehood and there is no evidence that the need to refund the money to Ms Liu arose from anything said or done by Ms Huang: paragraph 87; 19. The consideration for the payment of the two deposits failed as the Xie interests did not do anything which they undertook to do: paragraph 89; 20. A case in misleading or deceptive conduct and unconscionability is also made out: paragraphs 92-94; 21. The case of the Xie interests has a number of factors against it. It is highly unlikely that Ms Huang would agree to a contract without seeking legal advice in circumstances where her English was poor and without undertaking due diligence and investigations: paragraph 95. 1. The parties also relied on detailed responsive written submissions dated 13 January 2022. It is unnecessary to set these out in detail. Each of the parties relied on what were said to be objective or documentary matters supporting their cases. The Xie interests also made strong attacks on the credit of Ms Huang relating to the 15 January 2018 receipt and on the credit of Ms Lo. The Huang interests made credit attacks on Ms Xie and Ms Bai. These will be considered below. 2. In oral submissions, the parties expanded on aspects of their submissions. Both parties attacked the credit of the other parties' witnesses on various bases. Consideration 1. It is necessary to comment on, and make findings in relation to, matters of credit and the reliability of the witnesses. It is also necessary to set out the relevant legal principles and to determine the outstanding factual matters and then the causes of action pleaded in the light of the factual findings which are made. I have already made a number of factual findings above from paragraph 15 and in the course of summarising the evidence. Credit and reliability 1. The credit and reliability of the main witnesses in this case is of central importance. The cases alleged by each party depend on oral conversations which occurred several years ago. The parties accepted this in their written submissions, although emphasis was placed on a number of alleged objective matters and relevant correspondence. 2. Both parties made detailed submissions attacking directly or indirectly the credit and reliability of the various witnesses called by the other party. The Xie interests did this in their written submissions, on the whole, indirectly, by asserting that the Xie interests' case was consistent with, or established by, correspondence, documents and the logic of events. Further submissions on credit were made orally. Submissions were made by the parties that a number of witnesses should not be believed as witnesses of truth and/or were unreliable and their evidence should not be accepted. In particular, strong credit attacks were made in relation to Ms Xie, Ms Bai, Ms Huang and Mr Nam: Huang interests' primary written submissions paragraphs 53, 55-56 and 71-73; Huang interests' responsive written submissions paragraphs 8 and 26, Xie interests' responsive submissions paragraphs 4, 12, 29 and 39-41; oral submissions. In addition, significant credit attacks were made in relation to Ms Lo by the Xie interests: responsive written submissions paragraphs 42-45; oral submissions. Each of the parties claimed that their submissions were supported by context, the logic of events and particularly the contemporaneous documents including WeChat messages. These are clearly very important matters to be taken into account by the court in assessing the evidence, particularly where the events in question occurred several years ago: see the cases cited in paragraph 5 of the Xie interests' primary submissions, paragraphs 1-3 of the Huang interests' primary submissions and paragraphs 29-31 of the judgment of the majority of the High Court in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. 3. The hearing continued for a very lengthy period. Each of the main witnesses was cross-examined over a number of days in relation to many topics and documents. The court therefore had the advantage of seeing the various witnesses give oral evidence and being tested on that evidence over an extensive period. Although affidavits were prepared and read, each of the witnesses was extensively cross-examined in relation to a large number of matters, including alleged inconsistencies between their affidavit evidence and between their affidavit evidence and their oral evidence and documents. Some of the cross-examination was somewhat repetitive. I take into account that much of the evidence was given by way of interpreters which lengthened the hearing and makes the assessment of witnesses more challenging. 4. In A v B [2021] NSWDC 491 I stated as follows in paragraph 203: "203 In determining its factual findings in a particular matter, a court is not bound to accept any of the evidence which a particular witness attests to and similarly may accept part only of a particular witness's evidence: Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 at [118]- [123]; Danckert v Tonkin [2015] NSWSC 1570 at [152]. Accordingly, it does not follow from the fact that part of the evidence of a witness is rejected that other aspects must also be rejected and that is so even if it be found that the witness was lying: Sangha v Baxter [2009] NSWCA 78 at [155]- [156]; Croucher v Cachia [2016] NSWCA 132 at [129]." 1. The latter principle was relied on by the Xie interests in the event I found that Ms Xie and Ms Bai were lying about the Lo receipt/payment: see also Saravinovska v Saravinoski (No 6) [2016] NSWSC 964 at [469]-[470]. 2. As stated above, Ms Xie was cross-examined over several days. The cross-examination was detailed. On many occasions, Ms Xie was accused of fabricating evidence or events. At all times, Ms Xie appeared to be a very intelligent witness who had generally carefully prepared her affidavits. However, on a number of occasions she was combative with counsel and took every opportunity to orally advance her case and criticise the case of Ms Huang. She appeared to be a very partisan witness. Overall, I was not impressed with her evidence on many issues. It involved a number of inconsistencies which I will refer to below. I also do not accept aspects of her evidence. In my view, for these reasons considerable caution should be exercised before accepting evidence from Ms Xie except where it is confirmed by independent evidence. I will refer to a number of aspects of her evidence which I found to be unsatisfactory in more detail below. 3. Overall, I found Ms Bai to be a more satisfactory witness than Ms Xie. On most occasions, she answered directly the questions put to her. She appeared to be intelligent and fairly careful in her evidence. Her affidavit and oral evidence about the alleged oral conversation with Ms Xie on 23 December 2017 and the important meeting on 24 December 2017 was, however, inconsistent and unpersuasive. She accepted that there were errors in her affidavit account. She did not mention the alleged 28 December 2017 meeting with Ms Huang and Mr Nam in her first affidavit. She said she left the dealings with the solicitor to Ms Xie. Her answers in relation to some of the WeChat messages were also unpersuasive. I will consider these matters further below. In my view, for these reasons some real caution should be exercised in accepting her evidence on central matters. 4. Ms Lo appeared to me to be a mixed witness. Her earlier affidavits had the difficulties of being prepared in substance by her and translated, according to her, from Chinese using "Google Translate". I accept her evidence as to that matter. Their contents were not always in chronological order. It is clear, according to her evidence, that she did not use the proper terminology for events such as the wrong use of the term "executed". There were also minor inconsistencies in her evidence and admissions of some minor untruths to customers in relation to ownership of the Face of Love shop and to Ms Xie in relation to her ability to use the $60,000 in the light of alleged business difficulties of her husband in Singapore. I have also preferred aspects of the evidence of Mr Li and Mr Hui to her evidence in relation to the 29 November 2017 meeting. Some evidence was not impressive such as her reasons for keeping some of the money of the Muse City shop: see Xie responsive submissions paragraph 44(a). She clearly has a poor opinion of Ms Xie and Ms Bai and this must be taken into account in assessing her evidence. 5. However, despite these matters and the credit attack made on her, I found Ms Lo to be an overall honest witness who gave evidence generally consistently with her affidavits on the main issues involving her. In cross-examination, she appeared on most occasions to have a good recollection of events while making concessions as to her memory where appropriate. She gave evidence that she clearly disliked Ms Xie and I take that into account in assessing her evidence. In summary, I found Ms Lo in general terms to be a careful and thorough witness who was doing her best to tell the truth on the central issues relating to her. Her evidence was particularly impressive in relation to aspects of the events of November 2017 and the circumstances in which she was given the receipt which became Exhibit 2 and her sending the photograph of it to Mr Hui. On that aspect, I have preferred her evidence to that of Ms Xie and Ms Bai. 6. An attack was made on behalf of the Xie interests in relation to the recollection and evidence of Ms Huang. Reference was made to inconsistencies in her evidence. I note her retraction of the detail of the alleged conversation with Ms Xie on 25 November 2017 set out in paragraphs 5-9 of her first affidavit, her claim that she met with Ms Bai at the meeting on 9 December 2017 in paragraph 10 of her first affidavit and the claim in paragraph 15 of her first affidavit that Ms Bai confirmed from time to time what was said by Ms Xie in the 9 December 2017 meeting. All of these matters were withdrawn by Ms Huang in her oral evidence. It was also submitted that Ms Huang was unable in her oral evidence to accept matters even where it was clear on the documentary evidence, such as that Ms Xie was seeking to arrange a meeting on 15 January 2018 being the day Ms Huang returned from South Korea. Numerous other matters were relied upon. 7. Despite this forceful attack, and there being clear issues with aspects of Ms Huang's evidence, I found her overall to be a fairly impressive witness. Some of her evidence was given in English. She appeared to pause and reflect on questions and to try to state her best memory of events which occurred a number of years ago. Overall, in my view, she usually made concessions where appropriate and was generally a believable witness. To the extent there are inconsistencies between the main parties on the central issues, particularly whether the payments of the $68,000 were made as deposits which were refundable and that no concluded agreement for a 20% investment in Muse Waterloo was entered into, I prefer her evidence. Below I give detailed reasons for rejecting the evidence of Ms Xie and Ms Bai on the central issues in the proceedings. 8. Mr Nam was not subject to the same level of detailed cross-examination as Ms Huang was. Much of his evidence was given in English, although some questions and answers were translated for him. It seemed to me that Mr Nam had an unclear recollection in relation to what information was provided to him prior to 9 December 2017 by Ms Huang in relation to Ms Xie and the proposed investment in the Muse Waterloo store. In particular, his evidence was unclear in relation to paragraph 12 of his first affidavit at Court Book 159. There were also minor differences between Mr Nam and Ms Huang in relation to whether Mr Nam had delivered goods to Ms Xie in Pitt Street and the precise sequence of events at the meeting on 15 January 2018. 9. However, Mr Nam impressed the court as generally being an honest witness who was doing his best to answer questions truthfully and completely. He made a number of concessions, including having some uncertainty about the acquisition of information by him prior to 9 December 2017. He was clear in rejecting the various versions of the more important meetings put forward by Ms Xie in her evidence. Having seen Ms Huang and Mr Nam give evidence, I consider that Ms Huang has a better recollection of the detail of the various meetings. However, in general terms I accept Mr Nam as a witness of truth. Where they are inconsistent, I prefer the evidence of Ms Huang. I also accept Mr Nam's evidence on the central issues, particularly that the $8,000 paid on 24 December 2017 and the $60,000 paid on 15 January 2018 were expressly stated and agreed to be paid as deposits or payments which were refundable in the event that the transaction was not proceeded with by them. 10. Mr Hui, Ms Lo's former solicitor, gave his evidence clearly and succinctly. I accept his evidence, particularly as to the receipt of a text message from Ms Lo on 29 November 2017 attaching a photograph of the receipt for $60,000. No submission was made that his evidence should be disbelieved on this issue. 11. As stated above, I also have generally accepted the evidence of Mr Li. Principles relating to whether a binding contract has been entered into 1. In Yangdo Pty Ltd v Equiti Group Pty Ltd [2017] NSWDC 277 I stated as follows at paragraphs [24]-[29]: "24. In Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353, Dixon CJ, McTiernan and Kitto JJ stated as follows: "Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract." 25. In each of the first two cases referred to by the High Court, there is a binding contract. The third class is fundamentally different. There, the terms of agreement are not intended to have and therefore do not have any binding effect of their own. 26. Later cases have identified a fourth category of Masters v Cameron. However, it is clear that the categories identified in Masters v Cameron "are neither strict nor prescriptive". They are also not "exclusive nor necessarily exhaustive. Rather, they describe circumstances in which a finally binding contract may or may not have come into existence": Feldman v G&M Australia Ltd [2017] NSWCA 107 at [68] per Beazley P. 27. A useful summary of the various principles applicable to Masters v Cameron situations was set out by Beazley P in Feldman at [60]-[71]. 28. Beazley P also quoted the important passage of McHugh JA in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 where his Honour stated at 634–635 the following: "... the decisive issue is always the intention of the parties which must be objectively ascertained from the terms of the document when read in the light of the surrounding circumstances." 29. That statement reflects the objective theory of contract which is the current law in Australia: Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 at [35]." 1. In Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7, the majority of the High Court stated the following at paragraph [35]: "35. Both Verve and the Sellers recognised that this Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, 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. Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption "that the parties ... intended to produce a commercial result". A commercial contract is to be construed so as to avoid it "making commercial nonsense or working commercial inconvenience"." 1. This statement of principle has been followed in numerous later cases: for example Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544. 2. The so-called now accepted fourth category of Masters v Cameron was stated in GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 634-635 as being an informal agreement on the main matters but expecting to make a further contract which, by consent, might contain additional terms. The third category of Masters v Cameron is the situation in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract. 3. In the present case, the Huang interests submit, as the court understands it, that either the facts fall within the third category of Masters v Cameron or there were only preliminary negotiations between the parties (including an agreement as to price and the identity of the contracting party) and objectively no binding contract was entered into. Payments were said to be made by the Huang interests only as agreed refundable deposits. It was submitted that Ms Huang and Mr Nam had only received a draft of the proposed contract which clearly needed substantial revision and negotiation, including with the involvement of legal advice. It was said that no agreement had been given or stated to the draft provided on 15 January 2018 (with the variation of the contracting party to Ms Huang). Similarly, it was submitted that there was no later conduct objectively clearly evincing an intention to be bound to agreed and identified final terms. 4. It seems clear that whether a binding contract was intended by the parties must be tested objectively, that is what would reasonably be inferred from their words and conduct as found: see paragraph 41 of Mobis Parts Australia Pty Ltd v XL Insurance Company SE [2018] NSWCA 342; GR Securities Pty Ltd v Baulkham Hills Private Hospital (1986) 40 NSWLR 631 at 634-635 per McHugh JA; Dickinson v Chapman [2022] NSWCA 2 at [21]. 5. It has been stated in a number of cases that the more complicated the subject matter of the agreement the more likely the parties are to want to enshrine their contract in some written document to be prepared by their solicitors to enable them to review all the terms before being committed to any of them: Chalik v Wales [2005] NSWSC 877 at [15]-[17]. 6. The intention of the parties construed objectively as to which of the categories of Masters v Cameron in any particular case is relevant, if any, is to be ascertained by construing in the light of the surrounding circumstances the terms of any informal agreement established. All the categories of Masters v Cameron are subject to this general principle: Moffatt Property Development Group Pty Ltd v Hebron Park Pty Ltd [2019] QCA 60 at [37] per Keane JA (with whom McMurdo P and Atkinson J agreed). Principles relating to restitution, misleading or deceptive conduct and unconscionability 1. The Statement of Claim filed on 13 April 2018 in the Local Court by Ms Huang is not a clear pleading. However, it appears that there is pleaded an action in restitution for money had and received (paragraphs 17-19), an action for misleading or deceptive conduct under s 18 of the Australian Consumer Law (paragraphs 22-24), a claim in unconscionability (paragraph 25) and claims for other more specific alleged false or misleading representations. 2. The Xie interests deny the allegations and also plead a change of position defence in relation to the restitution claim. Principles relating to restitution 1. The pleading by Ms Huang claims that the alleged deposit sums of $68,000 should be repaid by the defendants to her as money received by the defendants for the use of the plaintiff which use has failed (paragraph 19). It is pleaded that without that relief, the defendants would be unjustly enriched (paragraph 25). 2. It was accepted by the parties that the result of this cause of action, subject to the change of position defence, depended on which factual version of the relevant meetings was accepted by the court. 3. An action for money had and received is an action by the plaintiff seeking to recover moneys from the defendant on the ground that the defendant has received the money to the use of the plaintiff to whom at law the money truly belongs. As was held by the High Court in ANZ Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 at page 673, such an action lies in restitution or unjust enrichment. 4. In Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at pages 256-257 the High Court noted an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff where there is no proper basis for the defendant to retain the payment. 5. Subject to a change of position defence, an action in restitution would be available to Ms Huang if she paid over the $68,000 on the agreed basis that it was paid as deposits which were refundable in the event that she did not proceed with the agreement to purchase the shares issued in Muse Waterloo. The High Court has accepted that the defence of change of position applies to all claims for restitution: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at pages 384-385 and Robinson v Robinson [2020] NSWCA 4 per Ward JA at [197]. However, the onus rests on the recipient to show that they relied on the payment of the money to their detriment and that the detriment must be "substantial" in the sense that the recipient would be in a worse position if ordered to pay restitution: David Securities Pty Ltd at page 385; Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd [2014] HCA 14; (2014) 253 CLR 560 at [157]. 6. Accordingly, in the present case, the Xie interests bear the onus of showing that they relied on the payment of $68,000 from Ms Huang and Mr Nam to their detriment, the detriment was substantial and they would be in a worse position if ordered to pay the restitution. The payment of the $68,000 clearly was a benefit to the Xie interests. Misleading or deceptive conduct 1. Section 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) is part of the Australian Consumer Law and provides as follows: "18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in Part 3‑1 (which is about unfair practices) limits by implication subsection (1). Note: For rules relating to representations as to the country of origin of goods, see Part 5‑3." 1. To the extent the Commonwealth Act is not applicable as it is the law of the Commonwealth, it is applied as a law of New South Wales pursuant to ss 27-28 of the Fair Trading Act 1987 (NSW). The Fair Trading Act can also apply to corporations. 2. In the present case, certain representations are relied upon by Ms Huang: see Court Book pages 106-108, paragraphs 13-14 and Court Book pages 133-134, paragraphs 31-33. Representations are a form of "conduct" for the purposes of the application of s 18 of the Australian Consumer Law. 3. The first issue is to determine what representations were made and to whom they were made. A person can contravene s 18 even if that person acts honestly. The conduct of the person making the representations must be viewed as a whole: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 at [38]-[39]. The issue is whether what was said amounted to misleading or deceptive conduct or conduct that was likely to mislead or deceive. The question whether the conduct is misleading or deceptive or is likely to mislead or deceive is a question of fact. The alleged conduct must be considered in the light of the relevant surrounding facts and circumstances. It is an objective question for the court to determine. The effect of any relevant statements or actions must be deduced from the whole course of conduct. Conduct is misleading or deceptive if it induces or is capable of inducing error. Conduct that objectively leads one into error is misleading: Butcher, above, at [109]-[111]. The question is how the representations, if found, would have been understood by a reasonable person in the position of the representee. 4. The plaintiff must also establish a causal link between the conduct which is complained of and the loss which is alleged. Under s 236(1) of the Australian Consumer Law, a person is entitled to damages where they have suffered loss or damage "because of" conduct which is a contravention of s 18 of the Australian Consumer Law prohibiting misleading or deceptive conduct. Although reliance is not mentioned in the section, where the conduct is directed to a person, reliance generally has to be established. Whether causation is established is determined subjectively: Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at [28]. However, the impugned conduct need only be a relevant cause of the loss sued upon. 5. There is no issue in the present case raised by the parties that the conduct alleged did not occur in trade or commerce. Any representations were also made to Ms Huang and Mr Nam at the relevant meetings so identity of recipient is not in issue. Unconscionable conduct 1. The Statement of Claim also pleads or refers to alleged contraventions by the defendants of ss 20 and 21 of the Australian Consumer Law. Sections 20 and 21(1) of the Australian Consumer Law being Schedule 2 to the Competition and Consumer Act 2010 (Cth) provide as follows: "20 Unconscionable conduct within the meaning of the unwritten law (1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time. Note: A pecuniary penalty may be imposed for a contravention of this subsection. (2) This section does not apply to conduct that is prohibited by section 21. 21 Unconscionable conduct in connection with goods or services (1) A person must not, in trade or commerce, in connection with: (a) the supply or possible supply of goods or services to a person; or (b) the acquisition or possible acquisition of goods or services from a person; engage in conduct that is, in all the circumstances, unconscionable. (2) This section does not apply to conduct that is engaged in only because the person engaging in the conduct: (a) institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or (b) refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition. (3) For the purpose of determining whether a person has contravened subsection (1): (a) the court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and (b) the court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section. (4) It is the intention of the Parliament that: (a) this section is not limited by the unwritten law relating to unconscionable conduct; and (b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and (c) in considering whether conduct to which a contract relates is unconscionable, a court's consideration of the contract may include consideration of: (i) the terms of the contract; and (ii) the manner in which and the extent to which the contract is carried out; and is not limited to consideration of the circumstances relating to formation of the contract." 1. It would appear doubtful whether s 21 is applicable because it applies to unconscionable conduct in connection with goods or services. Shares would appear to be a bundle of financial rights and not a good or service. See the definitions in s 2 of the Australian Consumer Law. No claim was made by the Huang interests under the Australian Securities and Investment Commission Act 2001 (Cth). 2. In my view, there has been no breach of s 20 of the Australian Consumer Law by the Xie interests. Section 20 requires conduct which is unconscionable "within the meaning of the unwritten law from time to time." First, there is no evidence that the will of Ms Huang was overborne or deflected so that it was not independent and voluntary. Secondly, it does not appear that unconscientious advantage was taken of Ms Huang who was a person who was unable to make a worthwhile judgment as to what was in her best interests. Thirdly, Ms Huang does not appear to be a person under a special disadvantage or disability. Fourthly, there is no conduct established which can be seen to constitute duress or undue influence: see generally Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 459, 461; Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 at [144]; [161]; Mentink v Olsen [2020] NSWCA 182 at [2]-[4]; Stubbings v Jams 2 Pty Ltd [2022] HCA 6 at [38]-[45]. 3. Here, Ms Huang voluntarily paid over the two amounts totalling $68,000. She had not yet undertaken any independent enquiries as to the Muse City business. She was under no special disadvantage or disability. She was inexperienced in relation to the beauty salon business but had been running the Korean beauty products business with Ms Nam for some time. She appears to be an intelligent woman. On her case, she understood she was handing the money over as refundable deposits. She was also aware she had limited information. She believed correctly that other relevant investors could exist. No unconscionable conduct within the section is established. Final factual determination on Huang claims and Xie breach of contract claims 1. There are various factors which point to whether or not the parties objectively intended their negotiations in 2017-18 to constitute a binding contract between them. There are, in addition, various factors which point to whether the moneys paid by Ms Huang were objectively intended to be refundable deposits or part payments in accordance with a concluded contract. The various factors were raised in cross-examination and many of the factors are referred to in some detail in the written submissions relied on. Relevant to the matter is the impression formed by the court of the various witnesses who gave oral evidence and the accuracy and reliability of their evidence in the light of the logic of events and contemporaneous documents or correspondence. I have already made some comments and findings on the witnesses and certain factual allegations earlier in these reasons. 2. The following points are noted: 1. The conversation said by Ms Huang to have occurred partly on 25 November 2017 is objectively unlikely to have occurred on that day. Ms Huang states that Ms Xie made a reference to Muse Beauty Salon Waterloo Pty Ltd on 25 November 2017: Exhibit A page 52, paragraph 5. However, at that time, Muse Waterloo had not been registered as a company. It was only registered on 28 November 2017. This potentially undermines the accuracy of Ms Huang's account. Ms Xie did not contest that a conversation between her and Ms Huang occurred on 25 November 2017: Exhibit A page 389, paragraph 17. A more detailed conversation, if it occurred at all, likely occurred after 28 November 2017 when the company was registered. In her oral evidence, Ms Huang agreed that paragraphs 5-9 of her first affidavit incorrectly set out conversations on 25 November 2017 and that there was only a limited WeChat exchange with Ms Xie on that day: T793.47 – T794 especially at T794.29; T796.46. Mr Nam's evidence as to what he was told by Ms Huang and when, was somewhat unclear; 2. Ms Huang asserts in her first affidavit that Ms Bai was present at the meeting on 9 December 2017 and was introduced as Ms Xie's mother: Exhibit A page 53, paragraph 10. Ms Huang later accepted that Ms Bai was not at this meeting. Mr Nam equally agreed that his affidavit was in error in suggesting this. There is no suggestion that Ms Bai is in fact Ms Xie's mother as opposed to being a business partner. She appeared relatively youthful whilst giving evidence by way of AVL. Ms Huang in her oral evidence accepted that Ms Bai was not at the 9 December 2017 meeting and thus could not have confirmed what Ms Xie said. This correction of her evidence undermines to some extent the accuracy of Ms Huang's recollection of the meeting. However, Ms Xie accepted in her oral evidence that her mother was actually at the meeting and was introduced as such to Ms Huang and Mr Nam. This was not referred to in Ms Xie's affidavit evidence: see Exhibit A page 249, paragraph 14. Why that is so is unclear; 3. It is claimed that it is unlikely that Ms Huang would have paid $60,000 over to Ms Xie and Ms Bai on 15 January 2018 unless it was a part payment under a concluded oral agreement: Xie interests submissions in chief at paragraphs 24-28. That is a very substantial sum to pay in cash and is consistent with it being a part payment pursuant to a contract. A reason for the payment was advanced by Ms Huang in her evidence (see also T858.16) and will be considered below in making a factual finding on the issue; 4. The receipt for the sum paid on 15 January 2018 refers to it being "the balance payment": Exhibit F. It does not say that it was to be a deposit or a refundable deposit: see T856. This factor was relied on heavily in the Xie interests' written submissions; 5. There were some inconsistencies between the evidence of Ms Huang and Mr Nam as to the precise sequence of events at the meeting on 15 January 2018. This is understandable having regard to the passage of time. The differences are not considered to be significant. Both appeared to the court to be attempting to give their honest recollections of the meeting; 6. Ms Huang and Mr Nam appear to suggest that the receipt given on 15 January 2018 by Ms Xie and Ms Bai was not carefully reviewed by them until late January or even early February 2018 (or possibly even later): see T1047 especially at T1047.19; T1074.6; Xie interests responsive written submissions at paragraphs 32-39. It was agreed between the parties that a copy of the receipt was attached to the email sent by Mr Nam on 29 January 2018: Court Book page 82; T1198.16. Thus Mr Nam at least must have considered the receipt by 29 January 2018. I consider that Ms Huang's evidence on this timing issue should be rejected. I consider it likely she reviewed the receipt not on 15 January 2018 before she left for the Waterloo store (she did not have sufficient time in my view), but in the week or so thereafter. The receipt was clearly important to her and likely was reviewed at least by the time she decided not to proceed with the share acquisition; 7. I have already considered above the submissions of the Xie interests relating to the alleged training given to Ms Huang, the pricelists, equipment suggestions, assistance with the proposed opening, the discussion as to business cards and the lack of a formal request to inspect the records of the Muse City store. While I take these matters into account (individually and together), I do not consider that they negate the central case of the Huang interests for the reasons given; 8. I do not consider the email correspondence or WeChat messages in evidence provide strong support for the Xie interests' case. The messages relied upon are unclear, equivocal or are open to various potential interpretations; 9. On the evidence I find that at least by 15 January 2018 the price was certain for 20% of the shares ($138,000) and the Huang contracting party was agreed (initially Mr Nam and then Ms Huang). 1. Having reviewed the evidence in the light of the submissions, the following matters in my view support the case propounded by the Huang interests that first, objectively, no binding contract was entered into by the parties for the acquisition of shares in Muse Waterloo and the payments by Ms Huang said to be deposits were intended to be refundable if the transaction was not finalised in a written agreement, and secondly, Ms Xie's and Ms Bai's evidence on the central issues should generally be rejected. I make that finding despite the various matters referred to in the previous paragraph and the submissions of the Xie interests. Some of the matters which follow are also relevant to the reliability and credit of Ms Xie and Ms Bai which I have already referred to: 1. The evidence of Ms Xie. Ms Xie, as stated above, appeared to be a very intelligent and well prepared witness. However, she was unnecessarily argumentative with counsel on a number of occasions and took many opportunities to be an advocate for her case and to be dismissive of the Huang interests' case. I find her to have been a very partisan witness. I take into account that she was subject to an extensive and at times what was suggested to be a somewhat repetitive cross-examination extending over several days. However, there were a number of occasions where her evidence was unsatisfactory and inconsistent. Some of the more important examples will be referred to. Overall, in my view she was an unsatisfactory witness and I exercise considerable caution in accepting her evidence on any issue, including what occurred at the crucial meetings, unless it is supported by other independent evidence; 2. The evidence of Ms Bai. Ms Bai also appeared to be an intelligent and careful witness. She was, overall, more responsive in answering questions than Ms Xie had been. In her first affidavit dated 11 June 2020 (Exhibit A page 670), Ms Bai did not refer to the alleged meeting with Ms Huang on 28 December 2017 or give her account of the crucial meeting on 15 January 2018. Why this was so is unclear. It is apparent from Ms Bai's evidence that she left much of the negotiation and dealings with Ms Huang to Ms Xie. She did not, for example, attend the meeting on 9 December 2017 with Ms Huang and Mr Nam. There were several aspects of her evidence which were unsatisfactory which I will refer to below. In my view, having regard to these matters which I will refer to, some real caution should be exercised in accepting her evidence on an issue unless it is supported by other independent evidence; 3. The evidence of Ms Lo. Ms Lo was heavily attacked as a credible and reliable witness by counsel for the Xie interests: responsive written submissions paragraphs 42-46. It is clear from her evidence that she disliked Ms Xie in particular and found her time working at the Muse City store to have been challenging and, in the end, upsetting. Despite there being some force in the criticisms made of Ms Lo, I found her evidence overall on the main points in issue to have been convincing and honestly given. Her affidavits were sometimes unclear and not presented in chronological order. She agreed that she sometimes told customers she was not the owner of the Face of Love store when she was, to avoid them trying to seek a better price for services. She agreed in substance that she told Ms Xie and Ms Bai that the $60,000 which she had was needed by her husband for his business in Singapore, when this was said to avoid Ms Xie seeking the sum as an investment. Her evidence as to the $400 taken by her from the Muse City store was not convincing. However, I do not regard these untruths as displaying a general lack of candour in her evidence. Ms Lo gave her evidence overall in a convincing and careful manner. In particular, I was impressed with her evidence in relation to the payment of the $60,000 in cash and the provision to her of a receipt signed by Ms Xie and Ms Bai. I also accept that she took a photograph of the original duplicate receipt produced by Ms Xie and Ms Bai on 28 November 2017 at the offices of Sun Lawyers on 29 November 2017 and sent it to Mr Hui. This finding further significantly undermines the credit of Ms Xie and Ms Bai. While there were some discrepancies in her evidence (including as to aspects of the 29 November 2017 meeting at the offices of Sun Lawyers), as pointed to in submissions, in general terms I prefer Ms Lo's evidence to that of Ms Xie and Ms Bai having seen the witnesses give evidence over several days. The documentary evidence such as the various receipts was generally consistent with her oral evidence; 4. Despite some problems with inconsistencies in their evidence as referred to in submissions, overall, having seen them cross examined in some detail, I accept Ms Huang and Mr Nam as generally more reliable witnesses, particularly on the central issues relating to the $68,000 paid and the events in 2018; 5. The reference on the 24 December 2017 $8,000 transfer payment document by Ms Huang to "Shop 2 Deposit": Exhibit A page 64. The Huang interests heavily rely on this document as indicating that the payment of $8,000 was intended by the parties to be a deposit only and not a part payment under a concluded binding contract. The Xie interests in the Defence filed on 14 September 2018 in the proceedings transferred to this court from the Local Court alleged that the $8,000 was to be paid as the "first initial part payment". A similar allegation is made in the Amended Defence filed during the trial: paragraph 5. I accept and find that the payment of the $8,000 when made was a true deposit. If a concluded binding agreement was reached at the meeting on 24 December 2017, the payment would likely not be referred to as a "deposit". There was no dispute between the parties at this stage. In some parts of Ms Xie's later affidavits the payment is referred to by her as a "deposit": Exhibit A page 392, paragraph 31; page 396, paragraph 59. Together, these matters support the payment being a true deposit as at the meeting on 24 December 2017 and not a part payment pursuant to a concluded agreement; 6. The claim that the character of the $8,000 payment made on 24 December 2017 by Ms Huang changed by agreement from a deposit to a part payment pursuant to a binding oral agreement, as submitted by the Xie interests, is not persuasive and I reject it: cf Xie interests' primary written submissions paragraphs 13-17. I do not accept the evidence of Ms Xie on this issue. I also do not see the WeChat exchange in Exhibit 6 relied on by the Xie interests, as indicating a binding agreement as opposed to discussions subject to an acceptable written agreement. The discussions as to the preparation of a "draft" agreement in Exhibit 6 are not decisive. The lack of discussion of the terms of any agreement in Exhibit 6, relied on by the Xie interests, is equally consistent with no final binding terms being agreed. The reference to "joint investor" is equally consistent with the identity of the party being identified if a concluded agreement is reached. The WeChat message also does not confirm an agreement to the $8,000 paid being spent on legal fees as there is no evidence as to the quantum of the legal fees. The draft agreement was prepared by the next day by Mr Li suggesting a lesser amount in fees: Exhibit A page 498. Further, the draft agreement states that each party is to be responsible for their own fees relating to the preparation of the agreement: Xie 8 June 2021 affidavit page 13, clause 7.2. This is inconsistent with the Xie case that there was agreement to use the money for legal fees on 24 December 2017 and that the contract was approved at the 15 January 2018 meeting. The email exchange with the solicitor by Ms Xie does not indicate a binding agreement: Exhibit A page 498. It refers to "some rough ideas", not agreed terms. This is discussed further below; 7. I accept the submission made on behalf of the Huang interests that if the price was not agreed for the shares in Muse Waterloo until after the 24 December 2017 meeting in a telephone conversation between Ms Huang and Ms Xie that it is unlikely that the $8,000 would have been offered at the meeting and paid soon after. In my view, it is more likely the $8,000 was offered because a price had been agreed at the 24 December 2017 meeting following a counter offer as Ms Huang asserts; 8. The receipt signed by Ms Xie and Ms Bai for the $8,000 deposit payment and the $60,000 cash payment does not, in my view, particularly assist the Xie interests, as the $60,000 cash payment, as referred to in the receipt, was not "the balance payment": see Exhibit A page 276; Exhibit F. A further payment of $70,000 was contemplated under the proposed arrangement. Why the $60,000 payment was described in this way is not satisfactorily explained in the evidence. The attempt in written submissions to explain what was intended by the receipt by the Xie interests was somewhat speculative and not convincing; 9. The assertion by Ms Xie in her affidavit evidence that she was happy to take $60,000 in cash from Ms Huang at the meeting on 15 January 2018 but was not happy to take $130,000 in cash from Ms Huang when it was offered is difficult to accept and should be rejected: Exhibit A page 400 paragraph 71. If a party was concerned about taking $130,000 in cash then they would also likely be concerned about taking such a large sum as $60,000 in cash. I accept the submissions of the Huang interests on this matter. This matter was also not referred to by Ms Bai in her oral evidence in giving an account of the 15 January 2018 meeting. I accept Ms Huang's evidence that she did not have $130,000 in cash at her house as at 15 January 2018 and thus did not make the offer alleged to Ms Xie and Ms Bai. Mr Nam gave similar evidence which I prefer. I reject the evidence of Ms Xie on this issue as being inherently unlikely. Ms Xie in my view would have taken the higher amount in cash if it was offered. This finding impacts on Ms Xie's credit and reliability as to the 15 January 2018 meeting; 10. The offer of the $60,000 in cash by Ms Huang on 15 January 2018 at the meeting, whilst somewhat surprising, is explicable by Ms Huang believing Ms Xie and Ms Bai may be considering other offers and wanting to confirm her interest: Exhibit A page 57, paragraph 24; T858.16. I reject the Xie interests' submissions to the contrary, particularly that it was cogent evidence of part performance of a concluded agreement (Xie interests' primary submissions paragraphs 24-28). Of course, Ms Qiqi Li had, on the case of Ms Xie and Ms Bai, expressed an interest in investing at this time in the new business proposed so the concern of Ms Huang had some justification although this was not to her knowledge. In addition, a draft of the agreement had been sent by email on 15 January 2018 which was in English and required careful consideration. It was not a straightforward document to a layperson, particularly persons whose first language was not English; 11. It is unlikely that any binding agreement would have been reached by the parties on 24 December 2017 (whether at the meeting or in a subsequent telephone conversation) as asserted by the Xie interests, in circumstances where there had been no attendance by Ms Huang at the Muse City store at that time to observe and investigate (or on the Xie case, to undertake training). I have rejected the assertion that Ms Huang made deliveries to the Muse City store in 2017. Accordingly, she had never attended the Muse City store before 15 January 2018 and thus knew little about it other than what she had been told and the Korean made goods which had been ordered. To agree to a binding agreement to invest $138,000 and to work in a new store before observing the store then run by the proposed other shareholders (including the level of customers) is, in my view, inherently unlikely. Ms Huang and Mr Nam were a young couple with a child and Ms Huang had never previously run a beautician's shop. In my view, they would have likely wanted to have made careful investigations as to the existing business; 12. The claim by Ms Xie in her 8 June 2021 affidavit, paragraphs 3-4, that she was given by Ms Huang the name and address of Mr Nam (written on paper according to her oral evidence) at the 24 December 2017 meeting and she believed this was the Chinese name of Ms Huang and instructed her solicitor Mr Li with the details, should be rejected. In my view, and I find, this evidence was fabricated by Ms Xie. It was not merely mistaken evidence as counsel for the Xie interests submitted. The name and address allegedly given to her according to Ms Xie included the word "Rosebery". It is highly unlikely Ms Huang would have given an address with the word "Rosebery" in it as her address was in the suburb of Colebee in western Sydney. Ms Xie stood by her affidavit evidence during extensive cross-examination. I find that Ms Xie likely obtained the address from the draft contract prepared by Mr Li which incorrectly included the word "Rosebery": see the 8 June 2021 Xie affidavit page 10. It is very likely this word was left over and not deleted by Mr Li, the solicitor, from the previous draft contract for Ms Lo who lived at Rosebery. See paragraph 5.1 of the draft contract referring to "Lo" which supports this conclusion. Also, the 25 December 2017 email from Mr Li to Ms Xie attaching that draft referred to "the agreement of your another salon" which Ms Xie said she took to be a reference to the agreement with Kitty Lo. In addition, the Nam name and address was provided in a WeChat message on 25 December 2017 not in the meeting the previous day: Exhibit 6. This finding of a fabrication in Ms Xie's affidavit evidence by the court substantially affects Ms Xie's reliability and credibility as it was as to an aspect of one of the main meetings. I acknowledge the seriousness of this finding; 13. The Xie interests refer to the Li offer of $180,000 for a 20% share as being a "certain" offer as opposed to the Huang offer of $138,000: Xie primary written submissions paragraph 17. However, Ms Li was to be a silent investor only. Ms Xie and Ms Bai hoped that Ms Huang would be the manager of the Waterloo store and offer the Korean products she sold at wholesale prices to the expanded Waterloo store. They therefore saw her offer as to a reduced price to be, in all the circumstances, more attractive; 14. The claim by Ms Xie that the reference to "the contract details" in the WeChat message from Ms Huang was a reference to the draft employment contract not the draft contract relating to her share acquisition is very unlikely and I reject it: see Exhibit A page 394, paragraph 47. A similar claim was made by Ms Bai in her oral evidence. As at 25-26 January 2018, Ms Huang had not received a redraft of her contract. I consider that this would have been much more important to her then than a draft employment contract for other persons. The desire to discuss her contract is consistent with there being no finalised binding agreement between the parties as at 25-26 January 2018. It is consistent with the Huang case. I reject Ms Xie's evidence at Exhibit A page 394, paragraph 47(a). I also reject Ms Bai's oral evidence on this issue. In addition, I consider it unlikely that Ms Huang would be willing to review the draft employment contract on the spot and provide her comments as claimed by Ms Xie in her affidavit evidence in paragraph 47(b). The draft was in English and was not straightforward. Ms Huang's first language was not English; 15. The assertion by Ms Xie in her affidavit evidence that on 29 January 2018 she responded to Ms Huang: "We have the agreement signed and have your shares registered already" is clearly unlikely and I reject it: Exhibit A page 411. There is no suggestion that Ms Huang or Mr Nam ever signed any agreement. The only proper analysis of what was said according to Ms Xie on 29 January 2018 in paragraph 91 of her 10 June 2020 affidavit is that she was referring to the agreement to acquire the share interest in Muse Waterloo. The lease for Muse Waterloo was signed on 8 December 2017, well before the contractual negotiations started, and thus is unlikely to be the agreement referred to: see Exhibit 1; 16. The correspondence between Ms Xie and her solicitor in December 2017 does not, in my view, assist the Xie interests and instead supports the absence of a binding agreement at that date: Exhibit A pages 497-8; Huang interests' primary written submissions paragraphs 34-37. Ms Xie claims there was a binding agreement reached on 24 December 2017 (by telephone) which was varied on 28 December 2017: see also Xie primary written submissions paragraphs 13-17. She states that after the agreement was concluded with Ms Huang by telephone on 24 December 2017 she contacted her solicitor Mr Li to give him instructions. The following matters are to be noted as to the above submissions. First, the email dated 24 December 2017 from Ms Xie sent at 9.47pm refers to the concept of an agreement but states in the email "Those are some rough ideas". This seems to be aimed at the main terms of a draft contract. If a binding agreement had been reached as alleged, Ms Xie would very likely have referred to the main terms of the agreement which had actually been arrived at by the parties so they could be reflected by the solicitor in the written draft agreement. Whilst Ms Xie was a layperson she was intelligent and diligent and would likely have provided precise instructions if an agreement had been reached. There is no mention in the email of the name of the investor or the price agreed. The term "rough ideas" seems to be inconsistent with a concluded oral agreement. Ms Xie's explanation for using these words in her oral evidence was confusing and unpersuasive. The use of the words is objectively more consistent with the preparation of a draft agreement for ongoing discussions as the Huang interests allege; 17. Mr Li's response on 25 December 2017 refers to a "draft" of the agreement prepared on the basis of the 24 December 2017 instructions (Exhibit A page 498). This was the draft with Mr Nam's name in it. It did refer to $138,000 so there must have been some additional telephone instructions. Thirdly, the 28 December 2017 email from Ms Xie can be regarded as directing the proposed shareholding. There is nothing up to this time in the email correspondence which suggests that a binding agreement was entered into, contrary to the Xie interests' case. The reference to Ms Xie having a "cold" explains some delay. The response of Ms Xie on 28 December 2017 sent at 6.35pm refers to more information but does not establish that a further meeting occurred on that day as the Xie interests claim occurred: Exhibit A page 497. The information could have been provided through other means such as telephone (as the purchase price must have been provided to Mr Li). The amended contract sent on 30 December 2017 by Mr Li is a re-draft. None of these emails establishes or asserts that a binding agreement had already been reached with Ms Huang and/or Mr Nam on 24 December 2017 or that it had been varied on 28 December 2017 at a meeting; 18. The argument of the Xie interests that there was a binding agreement reached on 24 December 2017 and it was varied on 28 December 2017 is not improved by the terms of the various drafts of the share subscription and accession agreement in evidence. See Exhibit A page 72 and the affidavit of Ms Xie affirmed 8 June 2021. Irrespective of which draft of the agreement is analysed, the consideration referred to in the agreement is $138,000: Clause 1.1. The obligation on either Mr Nam or Ms Huang was to provide a duly executed application for shares in accordance with Schedule 2 to the draft: Clause 2.1 and Schedule 2. There is no evidence that any application was executed by either Ms Huang or Mr Nam prior to the shares being allegedly issued. There is also no evidence of an application being requested by Ms Xie or Ms Bai or their solicitor; 19. Clause 2.1(b) provides that the consideration must be paid "in immediately cleared funds". There is a definition in the agreement of "Immediately Available Funds": Clause 1.1. However, the agreement between the parties as asserted by Ms Xie was that for the third tranche of part payment it was accepted that money would only be paid by Ms Huang following the selling of beauty products purchased with the $70,000. This is inconsistent with the draft agreement in Clause 2.1: see paragraph 71 at Exhibit A page 400. The conversation related by Ms Xie has Ms Huang stating: "You can transfer the shares after you receive the balance." The shares were allegedly issued by Muse Waterloo before the balance was paid. The written agreement clearly contemplated that a formal application would be made for the shares by Ms Huang or Mr Nam. This was never made: see the definition of "Application" in Clause 1.1 of the draft agreement. Similarly, no duly executed share certificate was ever provided by Muse Waterloo: see Clause 2.2(c); 20. Clause 3 of the draft agreement provided for the employment of Ms Huang as a fulltime store manager. However, the evidence establishes that at that time Ms Huang had a young child and lived well away from Waterloo. This would suggest that the employment of her as a fulltime store manager and her hours of work was still a significant matter to be negotiated between the parties and contrary to a binding agreement; 21. The evidence appears to establish that Ms Huang, despite having some command of English, did not have strong English language skills at the time. She is a native Chinese speaker. Parts of her evidence were given through an interpreter. It is to be expected that she would wish to seek legal advice on any agreement proposed to be entered into to see if it was in her interests: see her second affidavit at Exhibit A page 108, paragraph 14. The Xie interests had their lawyer prepare the draft agreement and later redraft it. The fact that Mr Nam was an accountant and has reasonable English is a relevant factor but the Xie case is that Ms Huang entered into a binding agreement orally on 24 December 2017. This, in my view, is inherently unlikely before receiving legal advice as to the proposed agreement. I note that in her first affidavit, Ms Xie has Ms Huang saying: "Yes, let us write everything down": Exhibit A page 250, paragraph 15; 22. Nothing in the email from Mr Nam dated 29 January 2018 which sought a refund suggests that there was any binding agreement already in place between the parties: Exhibit A page 82. I note, however, that, as the Xie interests observe, there is no mention of refundable deposits; 23. Ms Xie's oral evidence is that she instructed her accountant to register the issue of shares to Ms Huang in December 2017. Ms Bai said such matters were left to Ms Xie. However, the changes to the "register of members" document suggest that the document was signed on 29 January 2018 (Exhibit A page 94). It seems a striking coincidence that this would be lodged the day after Ms Huang indicated that she did not wish to proceed further with the proposed deal. That is consistent with the Xie interests attempting to support later their primary case that there was a binding agreement. I make that finding. The accountant said to have been given the instructions to register the share transfer in December 2017 was not called as a witness. In my view, it is appropriate to draw a Jones v Dunkel inference in those circumstances that his evidence would not have assisted Ms Xie on this issue: cf paragraph 52 of the Huang interests' primary written submissions. I reject paragraph 23 of the responsive written submissions of the Xie interests. The case was very hard fought, Mr Li was called as a witness and there seems to be no valid reason why the accountant was not called. There is of course no obligation to draw a Jones v Dunkel inference. I find it is appropriate in the present case: Newell v De Costi [2018] NSWCA 49 at [78]-[80]. Further, the document is seemingly erroneous in a number of respects. First, it refers to Ms Xie certifying the information to be correct. Secondly, it refers to the date of entry of the member's name in the register as being 28 December 2017, yet Ms Xie conceded she did not have the share register for Muse Waterloo. Thirdly, it indicates that nothing was paid per share whereas $68,000 had been paid. Fourthly, it has $138,000 as being unpaid whereas on the Xie interests' case, $68,000 had been paid as part payment pursuant to the contract. These matters satisfy me that the document was lodged on 29 January 2018 by Ms Xie in somewhat of a rush with the primary purpose of providing some support for the Xie interests' case that there was an earlier concluded agreement. I am not satisfied on the evidence that the name of Ms Huang was registered in the share register on 28 December 2017 as suggested or at any time before 29 January 2018. There was no directors' resolution, share application or other independent record in evidence to support this claim; 24. The WeChat conversation on 25 January 2018 is in my view consistent with there being no binding agreement. Ms Huang is seeking a meeting over the long weekend with Ms Bai and Ms Xie "to discuss the contract details": Exhibit A page 122. This suggests that no binding agreement had been entered into previously or as at that date; 25. The suggestion in Ms Xie's affidavit evidence that she provided training for four to five hours per evening to Ms Huang over several days in January 2018 is unlikely and I reject it. As Ms Huang stated in her evidence, at the time she was a mother of a two year old child under her fulltime care and it would have been difficult for her to have four to five hours per evening to do such beauty work. Her evidence, which was not contested, was that the distance between Colebee and Chippendale (Ms Xie's address) was substantial and she did not have any driving licence at the time: Exhibit A page 139, paragraph 59. Mr Nam also gave evidence that at this time Ms Huang did not drive: T1052.25. I accept that evidence. That tends against the accuracy of the claims by Ms Xie. Further, Ms Xie's oral evidence in relation to the training she provided Ms Huang is directly contrary to her affidavit evidence: see T49.30-.43; 26. The WeChat conversation exchange on 15 January 2018 does not, in my view, establish a binding agreement at that time: Exhibit A page 144. Further redrafting needed to occur to the agreement; 27. Ms Kitty Lo confirms that she did not provide training to Ms Huang when she attended the store in January 2018: Exhibit A page 227 paragraphs 26 and 27 and her oral evidence. This is directly contrary to the evidence of Ms Xie and Ms Bai. I prefer Ms Lo's evidence on this issue as she was the person supervising apprentices at the store on those days. Overall, I found her to be a more persuasive witness on a number of central issues relating to her as referred to above; 28. If Ms Huang's account of what was said by Ms Xie to her on 9 December 2017 is accepted in general terms, there is no evidence that the claims of a system of booking clients, of turnover as alleged or of the quantum of customers daily is established by the evidence. It is not suggested by the Xie interests that this was the actual position as at that date: see Exhibit A page 390, paragraph 21. Further, if it is accepted that these words were said then a reasonable purchaser in the position of Ms Huang would likely never have agreed to a binding contract without undertaking appropriate due diligence (or at least a rudimentary review and observation over some days of the store) to be satisfied of the matters claimed. Ms Xie and her mother attended the meeting. No evidence was given by Ms Xie's mother supporting her daughter's version; 29. The amount of $60,000 was paid before any final written draft of the agreement was provided to Ms Huang and Mr Nam even on Ms Xie's case. The wrong draft was provided on 15 January 2018 to Mr Nam and Ms Huang (it was in Mr Nam's name). It still referred in clause 5.1 to Ms Lo. Accordingly, Ms Huang could have no real understanding of the proposed final agreement at the time the money was paid over in the sum of $60,000 and therefore it could not objectively be seen as a part payment under a binding contract; 30. Ms Xie and Ms Bai deny receiving $60,000 in cash from Ms Kitty Lo as Ms Lo claims. They reject the authenticity of the receipt at Exhibit A page 233; see also Exhibit 2: see their affidavits in Exhibit A page 664, paragraphs 4-5 and page 748, paragraphs 4-5; Xie responsive submissions at paragraph 42. However, Ms Xie accepted that the signature on the receipt was similar to her signature and the style of the receipt was similar to the receipts used by her. Further, as canvassed in cross-examination, the disputed receipt should be compared to the receipts put forward by Ms Xie herself as being authentic receipts: Exhibit A pages 310 and 469. The receipts have the same receipt letters "ZE". The dates and receipt number sequences are in chronological order: 28 November 2017, 21 April 2018 and 13 November 2018. I found the evidence of Ms Xie and Ms Bai on this aspect to be unimpressive and I reject it. The evidence of Ms Lo was more convincing on this issue and I accept it. The affidavit of Mr Hui and his cross-examination reinforces the fact that Ms Lo had the receipt for the $60,000 as at 29 November 2017, well before any dispute had arisen between the parties. I found Mr Hui to be a convincing witness and I accept his evidence as to the photograph of the receipt. The cross-examination of Ms Xie and Ms Bai also persuaded me that the duplicate receipt which is Exhibit 2 (see also Exhibit A page 233) was indeed given by Ms Xie and Ms Bai to Ms Lo on 28 November 2017 and that they received $60,000 in cash from Ms Lo as she claims. This finding substantially undermines the credit of Ms Xie and Ms Bai. I find it very unlikely that Ms Xie and Ms Bai could not recall receiving $60,000 in cash from Ms Lo as she claims and providing a receipt to her. I reject the submission of the Xie interests that Ms Xie and Ms Bai must have forgotten providing the signed receipt. I also would have come to this conclusion in the light of the cross-examination of Ms Xie and Ms Bai (and in the light of the persuasive oral evidence of Ms Lo) and the sequencing, dates and numbers of the various receipts in evidence, even in the absence of Mr Hui's affidavit; 31. Further, Ms Xie accepted that no shares were actually transferred to Ms Liu or Ms Lo despite the agreements with them: see Exhibit 4 and Exhibit A page 178. This accords with the historical company searches in evidence: Exhibit A pages 84-91. Thus, Ms Xie and Ms Bai were willing to enter into agreements and take money but no shares were issued to the persons entitled to them. 32. Ms Bai's accounts of the oral conversation with Ms Xie on 23 December 2017 and the meeting which occurred on 24 December 2017 are fundamentally unlikely: Exhibit A pages 670-671 and 678-679. The accounts are also inconsistent with Ms Xie's evidence. First, Ms Bai in paragraph 38 of her affidavit refers to Ms Huang wanting to purchase a 20% shareholding in Muse Waterloo at the price of $138,000 and also referring to Ms Huang paying a deposit of $8,000, on 23 December 2017. It is clear that the deposit was paid by Ms Huang on 24 December 2017 not 23 December 2017. Ms Xie refers to Ms Huang making an offer of $138,000 on 24 December 2017 not 23 December 2017. In addition, the wording of paragraph 20(c) in Ms Bai's first affidavit is inconsistent with her account of the 23 December 2017 discussion as it refers to Ms Huang asking for a figure for the price and referring to the deposit. Secondly, in her account of the 24 December 2017 meeting, Ms Bai has Ms Huang referring to the $8,000 payment as a "deposit" as Ms Huang alleges was its status. Thirdly, Ms Bai in her oral evidence appeared to accept that there were errors in paragraph 20(c) in that she claims Ms Huang asked for a reconfirmation of the price not the price itself. That claim is fundamentally inconsistent with paragraph 20(c). Also, she appeared to accept that the reference to depositing $8,000 in paragraph 38 of the affidavit was also mistaken. In addition, Ms Bai's reference in paragraph 20(c) to Ms Xie and her wishing to lease the shop is inconsistent with Exhibit 1 which shows that a lease was entered on 8 December 2017: Exhibit A page 270, paragraph 20(c) and Exhibit 1. These matters raise serious questions in relation to the accuracy of Ms Bai's memory and her reliability on issues relating to the crucial 24 December 2017 meeting; 1. Ms Bai's claim that she and Ms Xie only made the decision to open the shop when Ms Huang agreed to join with them is inconsistent with the lease having been entered into on 8 December 2017. Ms Bai's evidence that it was only when Ms Huang agreed to join and pay the $8,000 that she and Ms Xie made the decision to open the Muse Waterloo shop is clearly inconsistent with the executed lease and the work that was done in arranging the shop design and with the renovators: T371.25; 2. Having regard to the absence of Ms Bai putting her own account of the 15 January 2018 meeting in her first affidavit, and her brief account of the meeting in her oral evidence (T407.1-.24), Ms Bai did not appear to have a good or reliable recollection of what occurred on that day; 3. The above matters lead me to the conclusion on the whole of the evidence that the accounts of Ms Xie and Ms Bai should be rejected on the central issues. I prefer the evidence of Ms Huang and Mr Nam who appeared overall to be more impressive witnesses despite the vigorous attacks made on their credit and there being some differences between them on some issues. I rely on my findings above that the central case of the Huang interests is also more consistent with the objectively established facts and the logic of events in the factual context. Objectively, I find that no binding agreement as to the $138,000 for 20% of the shares in Muse Waterloo was reached by the parties at any time as claimed by the Xie interests including on 24 December 2017, 28 December 2017 or 15 January 2018. There was only agreement as to the price and the correct contracting party and the quantum of the shares. I find that the payments made were objectively agreed by the parties to be "refundable" deposits if a final agreement was not reached between the parties. I accept Ms Huang's evidence as to this issue as set out in her second and third affidavits. No final agreement was ever entered between the parties; 4. The following matters are particularly relevant to the conclusion that objectively no binding agreement to purchase the shares was reached by the parties: 1. The unreliability and credit of Ms Xie and Ms Bai. Ms Bai's affidavit evidence was inconsistent and contradicted certain evidence of Ms Xie. The finding as to the $60,000 receipt given to Ms Lo for a cash payment is directly contrary to their evidence given orally on a number of occasions; 2. The decision to open the shop by Ms Xie and Ms Bai was made at the latest by them when the lease was signed on 8 December 2017, well before the alleged final agreement was reached with Ms Huang and Mr Nam. They were therefore bound at that stage; 3. The transfer payment dated 24 December 2017 for $8,000 referred to the payment being a deposit: "Shop 2 Deposit"; 4. The ambiguity in the receipt signed on 15 January 2018; 5. The claim by Ms Xie that $130,000 in cash was offered but she only took $60,000 in cash – if Ms Xie was concerned taking $130,000 in cash she would also likely be concerned taking $60,000 in cash; 6. The offer to pay $60,000 by Ms Huang as a deposit is consistent with the belief that there were other potential purchasers showing an interest; 7. Ms Lo supports Ms Huang's account that she was there at the Muse City shop to observe not to obtain training; 8. The fabricated evidence of Ms Xie that Ms Huang gave her a name and address at the meeting on 24 December 2017 which included the word "Rosebery"; 9. The WeChat messages between the parties did not refer to a binding agreement but are consistent with Ms Huang seeking a final draft of the contract; 10. The email correspondence between Ms Xie and her solicitor in December 2017 is not consistent with a binding agreement having been entered; 11. The emails and WeChat messages do not refer to a 28 December 2017 meeting; 12. The terms of the draft contract as discussed above which were not straightforward; 13. The likelihood Ms Huang would want to observe the Muse City shop and seek legal advice before committing herself to the proposed contract; 14. Ms Xie's unsatisfactory evidence about the January 2018 share registration documents lodged with ASIC and the court's finding as to her motive. 1. Accordingly, I find in summary as follows: 1. In late 2017, Ms Huang wanted to open her own beauty shop. She planned to attend beauty classes in South Korea in early January 2018 for this purpose. 2. Mr Nam not Ms Huang had previously made beauty products deliveries to Ms Xie and the Muse City store. Ms Huang did not attend the Muse City store until January 2018 and was thus not familiar with it, including its level of customers. 3. There were discussions between Ms Xie and Ms Huang in late November/early December 2017 about Ms Huang joining Ms Xie in a proposed Waterloo store. 4. In the 4 December 2017 WeChat exchange, Ms Xie sought Ms Huang to join her in the proposed Waterloo store: Exhibit A page 119. 5. Ms Xie and Ms Bai signed the lease for the Muse Waterloo store on 8 December 2017 thus committing Ms Xie and Ms Bai to the store. A fit out contract was signed earlier. 6. The parties discussed the matter further and a 9 December 2017 meeting occurred. No binding agreement was reached at the meeting. At the meeting Ms Xie did refer to payment of a "refundable holding deposit." 7. A meeting occurred on 24 December 2017. Ms Xie said she and Ms Bai wanted $180,000 for a 20% share interest in Muse Waterloo. This confirmed the price previously indicated in a telephone conversation between Ms Huang and Ms Xie after the 9 December 2017 meeting. Ms Huang counter offered the sum of $138,000 at the meeting subject to various matters (see paragraph 14 of Ms Huang's second affidavit) and an acceptable final agreement. Ms Huang agreed to pay $8,000 as a refundable deposit. This was paid. There was no agreement that the $8,000 deposit was to be used for legal fees. No binding agreement was entered on 24 December 2017 including in any later telephone discussion. The price and quantum of the shares was agreed if a contract was entered into. 8. Ms Xie sent an email to her solicitor giving "rough ideas" for an agreement. A draft was provided to her on 25 December 2017. The reference to "rough ideas" was inconsistent with a binding agreement having been entered into on 24 December 2017. 9. There was no meeting on 28 December 2017 between the parties. No draft agreement was provided to Ms Huang and Mr Nam by Ms Xie at any meeting prior to 15 January 2018. 10. Ms Xie did not pursue further payments between 24 December 2017 and 15 January 2018 pursuant to any alleged binding oral agreement. 11. Ms Huang was absent in South Korea attending beauty training between 3 January 2018 and early 15 January 2018. 12. Ms Xie arranged a meeting at Ms Huang's house on 15 January 2018. 13. Ms Huang paid a further $60,000 in cash as an agreed refundable deposit to Ms Xie and Ms Bai on 15 January 2018. A draft agreement was then sent by email to Ms Huang/Mr Nam on 15 January 2015 but Ms Huang/Mr Nam did not have time to review it before leaving by car for Waterloo, did not agree to it and no binding agreement was objectively entered into. 14. Ms Huang and Mr Nam would not have agreed to the proposed written agreement without obtaining legal advice on it. 15. Ms Huang attended the Muse City shop on various days in January 2018 to observe the shop and to undertake some enquiries/basic due diligence. No substantial training was provided to her by Ms Bai or Ms Xie. Some instruction (and probably limited training on some equipment) was provided by Ms Bai. 16. Ms Huang was not satisfied with her observations of the store or her inquiries, including as to the level of customers. 17. Ms Huang sought a redraft of the agreement which was not provided in late January 2018. No draft of the agreement in Ms Huang's name was ever provided to her by Ms Xie. 18. Ms Huang and Mr Nam decided not to proceed with the proposal and sought a refund of the amounts paid. These were not returned by Ms Xie and Ms Bai or Muse Waterloo. The decision not to proceed was not due to Ms Huang saying she was pregnant. I accept Ms Huang's account of the 28 January 2018 meeting. 19. There was objectively never any binding agreement between the parties. Only the sum of $138,000 for a 20% share in Muse Waterloo had been agreed with Ms Huang as the contracting party subject to a satisfactory written agreement and Ms Huang's investigations on aspects like customer daily numbers. 20. It was agreed that the payments of $8,000 and $60,000 were refundable deposits in the event Ms Huang and Mr Nam decided not to proceed with the share acquisition. 21. No 20% shares in Muse Waterloo were ever applied for by Ms Huang or Mr Nam or issued before 29 January 2018. 22. Ms Lo provided $60,000 in cash to Ms Xie and Ms Bai. The latter two persons signed a receipt and gave it to Ms Lo shortly before 29 November 2017. A receipt for $60,000 would not have been provided by Ms Xie and Ms Bai if Ms Lo had not paid this sum even though the amount was not referred to in the Lo contracts. Determination of the plaintiff's claims in proceedings 2018/117938 in the light of the factual findings 1. For the above reasons, I find that there was objectively no binding agreement reached between the parties and that the two payments of $8,000 and $60,000 were paid by Ms Huang/Mr Nam as deposits to be fully refundable if a contract was not finally reached and entered into. I find that there was an express agreement between the parties that the payments were to be "refundable" if Ms Huang did not proceed with the transaction. I reject the submission for the Xie interests that the $60,000 payment and the receipt together objectively established a contract. The documents have to be seen in the context of the parties' discussions. Accordingly, the claim in restitution for money paid is established by the Huang interests. The retention of the $68,000 by the Xie interests is unlawful as the sum is made up of two refundable deposits and gives rise to the restitutionary entitlement in the Huang interests. 2. The two payments were made at the direction of Ms Xie and Ms Bai or were accepted by them and therefore they are both liable to repay the amounts. As they appeared to be acting also on behalf of Muse Waterloo, it is also liable. 3. My factual findings mean that as there was objectively no binding contract, the Xie interests have no action for breach of contract available. 4. In relation to the change of position defence, I find that this has not been established by the Xie interests for the following reasons: 1. the Xie interests deny any unjust enrichment and plead that they have changed their position by paying for the fit-out to the Muse Waterloo store partly with the $68,000 paid to them by Ms Huang: see paragraph 25 of Amended Defence; 2. However, I have found that the Huang interests' claim that the amounts paid were refundable deposits has been established. Accordingly, the Xie interests could not have formed the view properly that the $68,000 was theirs to spend pending the finalisation of the contract between the parties; 3. Further, the lease was entered into by Muse Waterloo on 8 December 2017: Exhibit 1. A contract to fitout was entered into on 7 December 2017: Exhibit A page 614. These commitments were made well before the meeting on 24 December 2017 with Ms Huang and Mr Nam; 4. Accordingly, Ms Xie and Ms Bai had binding agreements relating to the Muse Waterloo store well before the first important meeting with Ms Huang. The agreements carried with them the obligations to fit-out the premises as a beauty store with appropriate equipment to be acquired. These commitments were decided upon before the discussions with Ms Huang. There was thus no relevant change of position relying on anything agreed with Ms Huang and Mr Nam on 24 December 2017 or in January 2018. The Xie interests have not satisfied the onus on them that they relied on the payment to change their position as they were always obliged to fitout the premises and have the lease in any case and incur the expenses associated with that. 1. In relation to the misleading and deceptive conduct claim, whilst I generally prefer the evidence of Ms Huang to that of Ms Xie and Ms Bai as to what occurred at the 9 December 2017, 24 December 2017 and 15 January 2018 meetings in relation to what was discussed, stated and agreed, it is necessary to consider the specific allegations of misleading or deceptive conduct pleaded to determine whether they are established, their nature, their context, whether they are expressions of opinion or fact and whether they are sufficiently specific to be actionable: see Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [24]-[28], [31]-[33] and [102]; Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 at [109]. I make the following findings as to the representations alleged in the Statement of Claim filed by Ms Huang: 1. Paragraph 4a) – WeChat accounts: I find the representation made as alleged excepting that as to the words "and systems". I am not satisfied that it is likely anything about having systems or software to enable sharing was said. This is a very specific representation and could be easily disproved upon checking. There is no evidence such systems were being prepared. There is no evidence Ms Xie was approaching the two stores with such sophisticated plans in mind. Further, I do not find that the representation as found was misleading or deceptive. There is no evidence that the number of the databases, the sharing of the clients and the use of the data bases was not accurate and intended by the Xie interests at the time; 2. Paragraph 4b) – Client base: I find that the representation as pleaded was made. I accept the evidence of Ms Huang and Mr Nam on this issue. I find that 20-30 customers per day were not serviced in the Muse City store at the time. This must refer to an average number of clients. This is established by Exhibit E when reviewed as a whole. This was incorrect at the time and thus misleading or deceptive. The extent of customers was relevant to the likely success of the Waterloo store having regard to the aim to share customers and the involvement of Ms Xie and Ms Bai. The statement of likely turnover was merely a statement of present opinion but in the light of the misleading nature of the customer numbers had no reasonable basis for being made. It also was obviously relevant to the likely profitability of the Muse Waterloo store; 3. Paragraph 4c) – The licence: I find that the representation as to the granting of a licence by Muse City to Muse Waterloo was made. However, as the contract was never finalised it is not clear that this was not the intention of Ms Xie and Ms Bai at the time. I therefore find that it is not established that it was misleading or deceptive when made; 4. Paragraph 4d) – division of profit share: I find that the representation was made. However, there is no evidence that this was not intended to occur by Ms Xie and Ms Bai when it was stated; 5. Paragraph 4e) – inspection: I am not satisfied this representation was made in the terms alleged. I do not accept that anything was said about "systems" or the financial accounts. The City store was quite different to the proposed Muse Waterloo store. I do accept that a representation was made that Ms Huang could inspect the shop's operation and the sales records such as the client book which was Exhibit E. She was able to observe customers when she attended the store 6. Paragraph 4f) – repayment of the deposit: I find that this representation was made and was a statement of future intention. I am satisfied it was misleading or deceptive at the time it was made as the Xie interests asserted a binding agreement was entered into and had no intention to refund the deposit; 7. Paragraph 4g) – other than a statement as to the desired price and that the capital outlay was expected to be $350,000 to $400,000 I find that a representation in the terms pleaded (which is confusing and rolled up) was not made. It is not consistent with Ms Huang's evidence. I find that the price desired of $180,000 initially is established by the evidence. I also find that the capital outlay stated was inaccurate and misleading and deceptive. The capital outlay as established by the documents was substantially less than $350,000: see Exhibit A page 611; there is no evidence the equipment and solicitor's fees and "brand value" would or may make up the difference; 8. Paragraph 4h) – I refer to my findings as to the other representations alleged. I find that there were representations as to the granting of a licence to Muse Waterloo to access clients on the WeChat databases and that a request for a refundable deposit of $8,000 was made. 1. Therefore the only representations which I find to have been made and which were misleading or deceptive were: 1. The client base enabled 20-30 customers a day to be serviced at the City store; 2. Such turnover was expected at the Muse Waterloo store; 3. The holding deposit would be refundable if no final agreement was reached; 4. The capital outlay for lease and fitout to the Muse Waterloo store was expected to be $350,000-$400,000. 1. I find that the making of these representations caused Ms Huang and Mr Nam to be further interested in the proposal. However, I have found that no final agreement was reached. Therefore the representations are only relevant to the payment of the $68,000. I find that this sum would not have been paid by Ms Huang and Mr Nam if the misleading and deceptive representations had not been made. Thus the representations were a common sense cause of the payments being made. They were made to entice Ms Huang to pay over the $68,000 in deposits by referring to facts which made the proposal attractive and the price justified. Mr Nam referred in his oral evidence to the number of customers and the capital outlay as being relevant and important. 2. Thus the cause of action under section 18 of the Australian Consumer Law is established. Injurious falsehood cause of action 1. The Xie interests bring a cause of action in the tort of injurious falsehood. 2. In Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 Basten JA (with whom Meagher JA and Tobias AJA agreed) stated as follows at paragraphs [90]-[91]: "[90] The applicants pleaded an alternative case claiming damages for the tort of injurious falsehood. It was necessary for them to establish that the respondents had maliciously published a false statement about them, their property or business and that actual damage resulted from such publication: Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; 208 CLR 388 at [1] (Gleeson CJ). The critical element in the present case was to establish malice. The English Court of Appeal has held that the same principles apply with respect to malice in defamation and in injurious falsehood: Spring v Guardian Assurance Plc [1993] 2 All ER 273 at 288. The concept of malice in relation to defamation has been explained by the High Court in Roberts v Bass [2002] HCA 57; 212 CLR 1, where the concept was discussed in reference to a defence of qualified privilege, which is destroyed by malice. In that context, the question is whether the publisher's state of mind was actuated by an improper purpose or motive: at [76] (Gaudron, McHugh and Gummow JJ). [91] In the present case, the applicants did not rely upon actual knowledge of the falsity of any statement made about the applicants' product, but rather relied upon a failure to make proper inquiries and reckless indifference as to the truth or falsity of the allegations, amounting to wilful blindness. The trial judge dealt with the question of malice in relation to injurious falsehood in the following passage: [189] … I am not satisfied that the defendants were careless in failing to contact the plaintiffs before televising the Broadcast since I consider that the terms of the FDA warning were sufficient to apply [to] the Babywedge and the potentially fatal consequences of using such a product warranted the urgency with which the Broadcast followed the issue of the FDA warning. However, even had I considered the defendants' omission to contact the plaintiffs to request comment on the FDA warning before the Broadcast went to air to be careless, this would not have amounted to malice …." 1. In Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; [2001] HCA 69, Gummow J stated at [58] that it was for the plaintiff in injurious falsehood claims to establish falsity, malice and special damages which were burdens not imposed upon the plaintiff in the tort of defamation. 2. In general terms, damages can be recovered for harm that is intended or that is the natural and probable consequence of the tortious act. 3. In Palmer Bruyn, above, Gummow J stated that an action for injurious falsehood has four elements: 1. A false statement of or concerning the plaintiff's goods or business; 2. Publication of that statement by the defendant to a third person; 3. Malice on the part of the defendant; and 4. Proof by the plaintiff of actual damage (which may include a general loss of business) suffered as a result of the statement: at [52]. 1. At [114], Kirby J in Palmer Bruyn stated that the tort of injurious falsehood required falsity that was calculated to induce others not to deal with the plaintiff or was otherwise likely to damage the plaintiff and the publication was actuated by malice. At paragraph 154 Hayne J stated that it was not enough to establish injurious falsehood to show that the plaintiff is held up to ridicule. See also Callinan J at [192]-[193] who stated that there was a need for some indirect, dishonest or improper motive to establish malice. 2. In her second affidavit, Ms Xie referred to various posts which occurred on WeChat which she attributes to Ms Huang: Exhibit A page 411, paragraph 93 and following. See also Ms Bai's affidavit at Exhibit A page 681, paragraph 43 and following. It was put to Ms Huang that she was the author of or caused the offending posts. This was in general terms denied. See also the Xie interests' submissions in chief at paragraphs 53-61. 3. Most of the matters complained of in these paragraphs of the Xie/Bai affidavits and submissions occurred after May and June 2018 and are therefore not relevant to the repayment of the Liu investment by Ms Xie and Ms Bai. That is because they could have had no causative effect on Ms Liu's decision to seek a refund in relation to the damages complained of. There are, however, a number of complained of publications prior to May 2018. It is unclear which of these have any connection to Ms Huang. Having reviewed the evidence on this matter, I am unable to conclude on the balance of probabilities that most of the relevant posts originated from Ms Huang as opposed to other persons. There is a WeChat post referred to in paragraph 94 of Ms Xie's second affidavit at Exhibit A page 411 which seems to be a re-posting. The content of the post would suggest that it came from Ms Huang who is also known as Jessie but this is not certain. 4. Ms Huang in paragraphs 63-65 of her affidavit dated 17 May 2021 at Exhibit A page 140 seems to justify the posting as seeking to identify people who had invested money with Ms Xie and Ms Bai but could not get it back. She also asserts in paragraph 64 at Exhibit A page 140 that the post was in November 2018 not earlier. 5. In the light of this evidence, I am not satisfied that any posting on WeChat prior to May 2018 was of a post originating with Ms Huang and which was actuated by the necessary malice. It does not seem to me that the posting was actuated by an improper purpose or motive but rather to identify persons who could provide more information about investments with Ms Xie, Ms Bai and their related companies for the purposes of a complaint to police and possibly a court action. I have found that there was no binding agreement between Ms Huang and the Xie interests and therefore Ms Huang was entitled to her refund of $68,000. The post from Ms Huang seems to be designed to warn others in relation to Ms Xie and to identify other investors. I am unable to find it was actuated by malice including any improper motive. 6. Further, for the tort of injurious falsehood, one has to establish actual damage. I will consider this in relation to my damages assessment in the event I am found to be in error that any publication by Ms Huang was not actuated by malice being actuated by an improper purpose or motive. Damages issues Huang interests' claims 1. The Huang interests in proceedings 2018/117938 seek the recovery of the $68,000 paid together with interest. As I have found that it was agreed by Ms Bai and Ms Xie that these moneys were refundable deposits and there was no binding contract, in my view Ms Huang is entitled to this sum against the defendants in that matter under her restitution claim. Both Ms Xie and Ms Bai were present at the 24 December 2017 and 15 January 2018 meetings when the moneys were paid over by Ms Huang on that basis. They were acting on behalf of themselves and Muse Waterloo. Interest will need to be calculated on the $68,000. In my view, it should be calculated from 7 February 2018, thus allowing a reasonable period to arrange for the repayment of the sum. 2. I have also found that the $68,000 together with any applicable interest may be recovered by Ms Huang as damages under s 236 of the Australian Consumer Law for misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law. Xie interests' claims Proceedings 2018/364820 Damages for breach of contract 1. I have found that the Xie interests and particularly Muse Waterloo are not entitled to damages for breach of contract against the Huang interests as objectively there was no concluded and binding contract reached between them or any of them. 2. In the event I am in error in relation to that issue and there was a concluded and binding agreement, then Ms Xie, Ms Bai and Muse Waterloo are entitled to damages against Ms Huang and Mr Nam for breach of contract. On the case of the Xie interests, Ms Huang was permitted to pay the balance of $70,000 after she sold beauty products purchased with that sum: Exhibit A page 400, paragraph 71. There was no evidence before me as to how long that would take. I allow three months as a reasonable period. The non-payment of the $70,000 and the refusal to continue with the agreement would amount to an anticipatory breach of contract. Interest on the $70,000 sum should be calculated from 15 April 2018. 3. A claim is also made for losses due to the failure of the Muse Waterloo business and store: Xie interests submissions in chief at paragraphs 50-51. In my view, this amount is not recoverable even if there was a breach of contract by Ms Huang/Mr Nam. First, the Xie interests were committed to the lease of Muse Waterloo and the fit-out of the store before any detailed discussions occurred with Ms Huang: Exhibit 1. Secondly, Ms Xie and Ms Bai were seeking to defray part of the cost after the decision and commitment to open the store with a fit-out. Thirdly, the evidence does not establish that any loss caused to the Xie interests by the store failure was caused by the failure of Ms Huang/Mr Nam to pay the $70,000 as opposed to any number of other causes such as the retail environment or difficulties with staff or a desire to no longer run the business or difficulties with the lease. Fourthly, it is unclear when the $70,000 was expected to be paid – it was to be paid after more Korean beauty products were sold which may take some time (see above I have allowed three months). Fifthly, there is no evidence that any delay in the opening of the store caused by a failure to pay the $70,000 resulted in the store failure. Sixthly, there was no detailed evidence, including expert evidence, relating to the value of the Muse Waterloo business when sold or how the sale price was arrived at. The commission paid on the sale, at 25%, was not established to be usual or reasonable. There are many reasons why the store could have failed: poor management, less clients in Waterloo, problems with staff, inappropriate staffing and pricing and reputational issues. In my view, there is not sufficient evidence to establish that a cause of the failure of the Waterloo business was any breach of agreement by Ms Huang and Mr Nam. This head of damage is rejected. Damages for the tort of injurious falsehood 1. I proceed to assess damages for the tort in the event that I am in error that on the evidence the tort of injurious falsehood was not committed by Ms Huang. The repayment to Ms Liu 1. The second and third plaintiffs, Ms Xie and Ms Bai, claim as damages the loss of $178,240 which was repaid to Ms Cindy Liu in May and June 2018: see paragraph 28 of the Further Amended Statement of Claim. 2. In my view, this is not recoverable. 3. First, Ms Huang said she did not talk to Ms Liu until November 2018, well after the money had been returned to Ms Liu by Ms Xie and Ms Bai: Exhibit A page 132, paragraph 23 and the annexures referred to. This is disputed by Ms Xie and Ms Bai: see for example Exhibit A page 415, paragraph 104. I accept the evidence of Ms Huang on this issue. There is no compelling reason to doubt it. It is consistent with Exhibit 13, the "Friend request". Ms Huang was a far more impressive witness than Ms Xie and Ms Bai and I accept her evidence on this issue. Thus Ms Huang did nothing in relation to Ms Liu to cause her to ask for her money back as she did not know her in May/June 2018. 4. Secondly, according to Ms Xie, Ms Liu requested her money back in May 2018 referring to matters told to her by Ms Huang and Ms Lo: Exhibit A pages 415-6, paragraphs 104-109. Ms Huang denies this. It seems that due to Ms Liu's request for a refund, Ms Xie and Ms Bai chose to refund her money but not refund Ms Huang. Ms Xie and Ms Bai say the refund was made due to threats from Ms Liu. However, it seems clear that the refund was made due to discussions with Ms Liu not Ms Huang. Paragraph 61 of the Xie interests' submissions in chief refers to Ms Liu "pull[ing] her investment". There is no satisfactory evidence Ms Huang was aware of the discussions between Ms Liu and Ms Xie or their contents. Nothing she did had any apparent causative effect on the decision made to refund. Ms Xie and Ms Bai could have chosen not to refund the money and defend any proceedings for it as they have done with Ms Huang. 5. It seems difficult to form the view on the evidence that there was duress of a type which was instrumental in paralysing the wills of Ms Xie and Ms Bai or in overbearing or deflecting their wills: see Barton v Armstrong [1973] 2 NSWLR 598 at 607; Braam v BBC Hardware Ltd [2020] VSCA 164 at [81]-[83]. The tort of economic duress was not relied on: ANZ Banking Group v Karam (2005) 64 NSWLR 149; [2005] NSWCA 344. Thus, Ms Xie and Ms Bai made a commercial decision to refund Ms Liu's money but not refund Ms Huang's payments. I therefore find that Ms Liu's conduct and requests caused the decision to refund not Ms Huang's actions. In addition, I find the contents of the alleged conversation in Exhibit A page 415, paragraph 104 to be very unlikely. Ms Huang did not impress me as a person likely to take the action referred to and I do not accept that the conversation occurred as stated. There is nothing in the commercial agreements entered into to support the claim: Exhibit A pages 181 and 188. 6. I reject the claim for this head of damages. 7. Accordingly, the damages claimed for injurious falsehood are not established. The claim for allegedly taking skin testing equipment 1. The Xie interests asserted an entitlement to damages for an item of equipment allegedly taken by Ms Huang and Mr Nam: Xie affidavit Exhibit A page 420, paragraph 115. This is not pleaded in the Further Amended Statement of Claim and it is difficult to see how it can be relied upon. It is not clear what the basis of the legal claim was. The factual assertion in Ms Xie's affidavit does not indicate what the assertion is based on and whether Ms Xie was present at the time the item was allegedly taken. In her oral evidence, Ms Xie confirmed that she was not present when the equipment was allegedly taken and she relied on what she was told by her then manager, Selina. The manager Selina did not provide any affidavit or oral evidence. Ms Huang in her oral evidence stated that she did not take the machine. There was no cogent evidence that she did take it. 2. In the Xie interests' submissions in chief, this claim was no longer pressed: paragraph 6. Determination 1. The Huang interests have been in substance successful. I can see no reason why they should not have their costs of both proceedings. However, I will give liberty to the parties to apply for a different order. 2. For the above reasons, I make the following orders: 1. In matter 2018/00117938, judgment for the plaintiff against the defendants. 2. The parties are to bring in proposed short minutes of order within 7 days consistent with these reasons. 3. In matter 2018/00117938, the defendants are to pay the plaintiff's costs of the proceedings as agreed or assessed. 4. In matter 2018/00364820, judgment for the defendants against the plaintiffs. 5. The parties are to bring in proposed short minutes of order within 7 days consistent with these reasons. 6. In matter 2018/00364820, the plaintiffs are to pay the defendants' costs of the proceedings as agreed or assessed. 7. Liberty in both matters for the parties to apply for a costs order different to that in (3) and (6) above. ********** 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: 11 April 2022