Li v Liu [2022] NSWCA 67

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Li v Liu [2022] NSWCA 67 Hearing dates: 7 February 2022 Date of orders: 29 April 2022 Decision date: 29 April 2022 Before: Meagher JA at [1] White JA at [2] Beech-Jones JA at [3] Decision: (1) Appeal dismissed. (2) The Appellants pay the Respondents' costs of the Appeal. Catchwords: RESTITUTION – illegal contract – contract involving "investment" in local company in return for employing foreign national to fulfil visa criteria – agreement rendered unlawful by Migration Act 1958 – recovery of amounts "invested" in restitution – amount paid to Director on behalf of counter party company – whether restitution permissible – whether Director can rely on "defence" of payment over to company where not expressly pleaded – whether primary judge erred in dismissing claim against Director without expressly finding had no notice of illegality – form of notice required for agent who pays funds to principal received under illegal contract – HELD: claim rejected – manner in which case conducted meant that "defence" was available – primary judge's findings inconsistent with Director having relevant notice AUSTRALIAN CONSUMER LAW – representation that visa "would be" granted – whether such a representation made – whether "illegality" of representation or underlying transaction meant no conduct in trade or commerce or recovery impermissible – HELD: representation not made – if it was made was in trade or commerce and recovery permissible Legislation Cited: Australian Consumer Law Constitution (Cth) Competition and Consumer Act 2010 (Cth) Migration Act 1958 (Cth) Migration Amendment (Charging for a Migration Outcome) Act 2015 (Cth) Migration Amendment (Charging for a Migration Outcome) Bill 2015 Migration Regulations 1994 (Cth) Trade Practices Act 1974 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470 Alpha Wealth Financial Services Pty Ltd v Frankland River Olive Co Ltd (2008) 66 ACSR 594; [2008] WASCA 119 Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662 Australian Financial Services and Leasing Pty Limited v Hills Industries Ltd & Ors (2014) 253 CLR 560 Brownbill v Kenworth Truck Sales (NSW) Pty Ltd (1982) 39 ALR 191; 59 FLR 56 Citigroup Pty Ltd v National Australia Bank Ltd (2012) 82 NSWLR 391 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 David Securities Pty Ltd v Commonwealth Bank Australia (1992) 175 CLR 353 Elconnex Pty Ltd v Gerard Industries Pty Ltd (1991) 32 FCR 491 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 Fergusson v Stevenson (1951) 84 CLR 421 Gowers v Lloyds and National Provincial Foreign Bank, Ltd [1938] 1 All ER 766 Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 Mansell v Beck (1956) 95 CLR 550 Nelson v Nelson (1995) 184 CLR 538 Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 Perpetual Trustees Australia Ltd v Heperu Pty Ltd (2009) 76 NSWLR 195 Port of Brisbane Corporation v ANZ Securities Ltd (No 2) [2002] 2 Qd R 661; [2002] QCA 158 South Australian Cold Stores Ltd v Electricity Trust of South Australia (1965) 115 CLR 247 Valve Corporation v ACCC (2017) 258 FCR 190 Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 420 Texts Cited: Mason & Carter's Restitution Law in Australia, 4th ed Edelman and Bant, Unjust Enrichment, 2nd edition Category: Principal judgment Parties: Kun Li (First Appellant) Zhi Hong (Second Appellant) Yang Liu (First Respondent) Junyi Wang (Second Respondent) Representation: Counsel: Mr S Lawrance SC; Mr DA Ward (Appellants) Mr BC Kasep; Mr JK Raftery (Respondents)