Xie v Qin [2024] NSWCA 26

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Xie v Qin [2024] NSWCA 26 Hearing dates: 28 November 2023 Decision date: 14 February 2024 Before: Meagher JA at [1]; White JA at [2]; Basten AJA at [67] Decision: Appeal dismissed with costs Catchwords: APPEALS – point not taken below – pleadings –case dismissed on ground that whilst the respondent misappropriated moneys to be applied at her discretion for a unit trust or the fifth appellant, the fifth appellant had made no claim to the moneys – where appellants seek to amend statement of claim on appeal to bring claim by both the first and fifth appellants – whether case not fought at trial may be propounded on appeal – possibility that additional evidence might have been called at trial and different findings made if new issue had been raised at trial Cases Cited: Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (in liq) (1978) 141 CLR 335; [1978] HCA 45 Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 Bell v Lever Brothers Ltd [1932] AC 161 Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26 Commissioner of Stamp Duties (Qld) v Jolliffe (1920) 28 CLR 178; [1920] HCA 45 Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 National Australia Bank Ltd v Nobile (1988) 100 ALR 227 Pringle & Ors v Everingham [2006] NSWCA 195 Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491 Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Category: Principal judgment Parties: Teng Xie (First Appellant) Yinjun Qian (Second Appellant) Xianhua Shen (Third Appellant) Ying Zhang (Fourth Appellant) Taylor International Investment Pty Ltd (Fifth Appellant) Aiyi Qin (Respondent) Representation: Counsel: M Ashhurst SC with A Norrie (Appellants) E C Muston SC with S A Lees (Respondent)