Ling v Pang [2023] NSWCA 112

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ling v Pang [2023] NSWCA 112 Hearing dates: 30 March 2023 Date of orders: 26 May 2023 Decision date: 26 May 2023 Before: Leeming JA at [1]; Mitchelmore JA at [2]; Kirk JA at [3] Decision: Appeal dismissed with costs. Catchwords: APPEALS — From finding of fact — Inferences from primary facts — Jones v Dunkel inference — Whether expected or natural for the party in question to have called a particular witness — Uncalled evidence would not have assisted a party's case — Not natural to expect one party to call unrelated party to testify as to matters touching upon the latter's possible fraud — Jones v Dunkel inference would not advance judicial reasoning in any material way in any event APPEALS — From finding of fact — Clear, unchallenged and plausible evidence that respondent would not have falsely witnessed execution of documents — Persuasive evidence required to make out the contrary proposition CONSUMER LAW — Alleged misleading or deceptive conduct — Appellants bore onus of establishing what would have happened but for the misleading and negligent conduct — Evidence of what a professional adviser would have done does not establish what the decision-maker would have done — Principal previously acted against professional advice in relation to the loan Cases Cited: Fabre v Arenales (1992) 27 NSWLR 437 Gawne v Gawne [1979] 2 NSWLR 449 Graham v Hall (2006) 67 NSWLR 135; [2006] NSWCA 208 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Manly Council v Byrne [2004] NSWCA 123 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 Owners - Strata Plan 87265 v Saaib [2022] NSWCA 63 Payne v Parker [1976] 1 NSWLR 191 Tozer Kemsley & Millbourn (Australasia) Pty Ltd v Collier's Interstate Transport Service Ltd (1956) 94 CLR 384; [1956] HCA 6 Category: Principal judgment Parties: Kuo Shu Ling (First Appellant) Chuan Dian International Trade Co Ltd (Second Appellant) Oliver Pang (trading as O Pang & Co) (Respondent) Representation: Counsel: