Wang v Yu [2023] NSWSC 1182

Supreme Court New South Wales

Medium Neutral Citation: Wang v Yu [2023] NSWSC 1182 Hearing dates: 13-15 June, 1-3 August 2023 Date of orders: 5 October 2023 Decision date: 05 October 2023 Jurisdiction: Equity Before: Meek J Decision: Findings made against Plaintiff's claim and in favour of First Defendant's cross-claim. Parties to bring in short minutes of order Catchwords: COMMERCIAL — Property development venture — P introduces D1 (a friend) to an investor (P's then boyfriend) and D1 by the trustee of his family trust (D2) suggests and enters into a project with the investor through the mechanism of a Unit Trust to develop property at Meadowbank purchased by a company (D3) — D1 commits his time and expertise to the project and investor commits initial funds pending further investors providing more substantial funds — P requested by investor to act as a "gatekeeper" for investor's money but starts to make payments to D3 at the request of the investor — Subsequent dispute as to whether the payments are made on behalf of the investor or funds contributed by P by way of loan to D3 — P's relationship with the investor breaks down and P presses claims for recognition of her contribution of funds — A Unitholders Agreement recognising adjustment of rights to accommodate more substantial investors makes no provision for P's payments — P sets up a meeting to confront D1 regarding recognition for her payments — P fails to attend meeting but her new boyfriend (2XD) attends the meeting and allegedly assaults D1 — Subsequently, following the meeting, D1 makes an immediate payment of $10,000 to 2XD and later on pays sums totalling $200,000 to 2XD for P and after negotiations D1 enters into a Deed of Settlement and Release acknowledging payments made to P and providing for transfer of D2's beneficial interest in units to P — Later still, D1's solicitor sends correspondence purportedly affirming Deed — Ultimately, P sues for specific performance of obligations in Deed to effect transfer of beneficial interest in units — Later, D1 brings a cross-claim alleging Deed entered into under duress and seeks to "void" Deed and recover payments against P and new boyfriend — Held assault occurred, Deed entered into as a result of duress, purported affirmations occurred whilst duress persisting, Defendants entitled to avoid Deed UNIT TRUSTS — Doctrinal differences between shares and units discussed CONTRACTS — Duress — Forms — Duress to the person — Assault — Whether will deflected in entering into Deed of Settlement and Release — Whether Deed was affirmed on several occasions — Whether duress still operative EVIDENCE — Principle in Jones v Dunkel — Failure of 2XD (P's ex-boyfriend) to be called to give evidence — Discussion of principles regarding failure to call the witness on issue of alleged assault — Whether inference should be drawn where witness may be asked about assault — Discussion regarding whether the potential availability of protection afforded by a s 128 Evidence Act 1995 (NSW) certificate impacts whether a Jones v Dunkel inference may be drawn — It is necessary to distinguish between cases in which the witness, if called, would have been asked by the party calling them to admit to a crime of some seriousness from cases in which (as here) the witness would likely (consistent with the defence to the claim) deny any such crime — Held on the facts Jones v Dunkel inference able to be drawn consequent upon the failure of 2XD to give evidence in defence of the cross-claim and the failure of P to call 2XD in her case WITNESSES — Principle that there is no "property" in a witness — Rules regarding legal representatives conferring with a client of other legal representatives PLEADINGS — Expression "at all material times" — Unhelpful in clarifying issues in circumstances where anything connected with a time period is a pleaded fact EQUITABLE REMEDIES — Rescission — Discussion regarding availability of restitution — Differences between rescission at law and in equity — Onus of proof — Once the party seeking rescission demonstrates that they are entitled to rescind a contract, the onus falls to the party opposing rescission to demonstrate that restitutio in integrum is no longer possible or that the rescinding party is otherwise disentitled to rescind LIMITATION DEFENCES — Whether the right and title to the debt of a person having a cause of action to recover a debt is extinguished automatically pursuant to s 63 Limitation Act 1969 (NSW) independently of whether s 14(1)(a) is pleaded as a (limitations) defence to that cause of action Legislation Cited: Chancery Amendment Act 1858, 21 & 22 Vict, c 27 Evidence Act 1995 (NSW) Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) Limitation Act 1969 (NSW) Limitation of Actions Act 1974 (Qld) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: A v N [2012] NSWSC 354 Abram Steamship Co Ltd v Westville Shipping Co Ltd [1923] AC 773 Alati v Kruger (1955) 94 CLR 216; [1955] HCA 64 Ampol Ltd v Caltex Oil (Aust) Pty Ltd (Supreme Court (NSW), Foster J, 22 December 1982, unrep) Antonio v Antonio [2010] EWHC 1199 (QB) Australian Medic-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (No 4) (2008) 170 FCR 9; [2008] FCA 1038 Aust-Wide Management Ltd (Receiver Appointed) v Chief Commissioner of Stamp Duties (1996) 33 ATR 384 B & S Contracts and Design Ltd v Victor Green Publications Ltd [1984] ICR 419 Bank of Western Australia Ltd v Tannous [2010] NSWSC 1319 Barton v Armstrong [1976] AC 104 Berridge v Public Trustee (1914) 33 NZLR 865 Binsaris v Northern Territory (2020) 270 CLR 549; [2020] HCA 22 Bloomingdale Holdings Pty Ltd v 63 Buckley Street Pty Ltd [2008] VSC 168 Braam v BBC Hardware Ltd [2020] VSCA 164 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Brown v Smitt (1924) 24 CLR 160; [1924] HCA 11 Cachia v Westpac Financial Services Ltd [2000] FCA 161; (2000) 170 ALR 65 CBS Songs Ltd v Amstrad Consumer Electronics PLC [1988] AC 1013 Chapman v Colson [2015] NSWSC 120 Charles v Federal Commissioner of Taxation (1954) 90 CLR 598; [1954] HCA 16 Chief Commissioner of State Revenue v Centro (CPL) Ltd (2011) 81 NSWLR 462; [2011] NSWCA 325 Clayton Utz (a firm) v Dale (2015) 47 VR 48; [2015] VSCA 186 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 De Lorenzo v De Lorenzo [2020] NSWCA 351 Dilosa v Latec Finance Pty Ltd (No 2) [1966] NSWR 259 Director of Public Prosecution for Northern Ireland v Lynch [1975] AC 653 Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd [2013] WASCA 36 Elite Realty Development Pty Ltd v Sadek [2022] NSWSC 1333 Elite Realty Development Pty Ltd v Sadek [2023] NSWCA 165 Elkington v Moore Business Systems Australia Ltd (1994) 13 ACSR 342 Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218 Fabre v Arenales (1992) 27 NSWLR 437 Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 Fish & Fish Ltd v Sea Shepherd UK [2015] AC 1229 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 Harmony Shipping Co SA v Davis [1979] 3 All ER 177 Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298 Hill v Rose [1990] VR 129 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Hudak v Adams [2013] NSWSC 1464 In the matter of Hoju Jobs Pty Ltd [2021] NSWSC 302 Jagatramka v Wollongong Coal Limited [2021] NSWCA 61 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jonsue Investments Pty Ltd v Balweb Pty Ltd [2013] NSWSC 325 Knell v QAV Pty Ltd [2020] WASCA 23 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 Kramer v McMahon [1970] 1 NSWR 194 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Lewis v Nortex Pty Ltd (in liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083 Ling v Pang [2023] NSWCA 112 Maguire v Makaronis (1997) 188 CLR 449; [1997] HCA 23 Malek Fahd Islamic School Ltd v Minister for Education and Early Learning [2023] NSWCA 143 Maskell v Horner [1915] 3 KB 106 Mason v New South Wales (1959) 102 CLR 108; [1959] HCA 5 McGrath v Troy as Administratrix of Estate of Wade [2010] NSWSC 1470 North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 O'Sullivan v Management Agency and Music Ltd [1985] QB 428 Pao On v Lau Yiu Long [1980] AC 614 Papas v Co [2018] NSWSC 1404 Payne v Parker [1976] 1 NSWLR 191 Penhall (as executor of the estate of the late Paul Sukkar) v Abu. Tony Pty Ltd atf Abu. Tony Discretionary Trust [2023] NSWSC 434 Permanent Custodians v Nobilo [2012] NSWSC 109 Price v Spoor (2021) 270 CLR 450; [2021] HCA 20 R v Rogerson; R v McNamara (No 24) [2016] NSWSC 105 Re Hillsea Pty Ltd [2019] NSWSC 1152 Re Investa Properties Ltd [2007] FCA 1104; (2007) 25 ACLC 1186 Reef & Rainforest Travel Pty Ltd & Anor v Commissioner of Stamp Duties [2002] 1 Qd R 683; [2001] QCA 249 RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 RHG Mortgage Ltd v Ianni [2015] NSWCA 56 Rowell v Larter (1986) 6 NSWLR 21 Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 Shevill v Builders Licensing Board (1982) 149 CLR 620; [1982] HCA 47 Smith v William Charlick Ltd (1924) 34 CLR 38; [1924] HCA 13 Spedley Securities Ltd (in liq) v Greater Pacific Investments (in liq) (1992) 30 NSWLR 185 Spence v Crawford [1939] 3 All ER 271 Thomas Witter Ltd v TBP Industries Ltd [1996] 2 All ER 573 Universe Tank Ships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102; [1995] HCA 14 Texts Cited: Barker, Kit, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (5th ed, 2012, Oxford University Press) Beale, Hugh, Chitty on Contracts (31st ed, 2012, Sweet & Maxwell) Carter, JW, Elisabeth Peden and GJ Tolhurst, Contract Law in Australia (5th ed, 2007, LexisNexis Butterworths) D'Angelo, Nuncio Commercial Trusts (2014, LexisNexis) Encyclopaedic Australian Legal Dictionary (LexisNexis) Halsbury's Laws of Australia (online) Heydon, JD and MJ Leeming, Jacobs' Law of Trusts in Australia (8th ed, 2016, LexisNexis) Heydon, JD, Cross on Evidence (online, LexisNexis) Heydon, JD, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed, 2014, LexisNexis) Meagher, RP, WMC Gummow & JRF Lehane, Equity – Doctrines & Remedies (3rd ed, 1992, Butterworths) O'Sullivan KC, Dominic, Steven Elliott KC and Rafal Zakrzewski, The Law of Rescission (3rd ed, 2023, Oxford University Press) Odgers SC, Stephen, Uniform Evidence Law (16th ed, 2021, Thomson Reuters) Pittavino, David A, and Xavier P Walsh, "Pacta Sunt Servanda: The Enforcement of Bargains and the Limitation of Actions" (2023) 1(2) Contract and Commercial Law Review 120 Wigmore, John Henry, Treatise on the Anglo-American System of Evidence in Trials at Common Law (3rd ed, 1940, Little, Brown & Co) Category: Principal judgment Parties: Lu Wang (Plaintiff / First Cross-Defendant) Jiayi Yu (First Defendant / First Cross-Claimant) STYU Pty Ltd atf SY Family Trust (Second Defendant) Auslon Property Group Pty Ltd atf 567 Pacific Unit Trust (Third Defendant) Song Yang (Second Cross-Defendant) Representation: Counsel: D Smallbone (Plaintiff / First Cross-Defendant) P Lonergan (Defendants / First Cross-Claimant) J Mack (Second Cross-Defendant)