Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ming Ying v Lida Song [2012] NSWCA 362 Hearing dates: 4 September 2012 Decision date: 12 November 2012 Before: Allsop P at [1] Macfarlan JA at [2] Tobias AJA at [25] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - equity - claim that shares held on constructive trust - challenge to primary judge's credit findings failed - no issue of principle Legislation Cited: Evidence Act 1995 Oaths Act 1900 Cases Cited: Fox v Percy [2003] HCA 22; 214 CLR 118 House v R [1936] HCA 40; 55 CLR 499 Libke v R [2007] HCA 30; 230 CLR 559 Category: Principal judgment Parties: Ming Ying (Appellant) Lida Song (First Respondent) Budget Scaffold Supplies Ltd (Second Respondent) Representation: Counsel: Appellant in person M Lawson/D Eardley (Respondents) Solicitors: William Chan & Co Lawyers (Appellant) Colin Biggers & Paisley (Respondents) File Number(s): CA 2006/257653 Decision under appeal Citation: Ming Ying v Lida Song [2010] NSWSC 1500 Date of Decision: 2010-12-22 00:00:00 Before: Ward J File Number(s): SC 2006/257653 Judgment 1ALLSOP P: I agree with Macfarlan JA. 2MACFARLAN JA: By his Amended Summons filed in the Equity Division, the appellant, Ming Ying, sought declarations and orders against the first respondent, Lida Song (his former brother-in-law) and the second respondent, Budget Scaffold Supplies Pty Ltd ("BSS") (of which Lida Song was a director and shareholder). Ming Ying claimed that in 2002 he paid $106,025 to BSS to acquire 25 BSS shares which Lida Song transferred to Ming Ying, but subsequently re-transferred to himself in 2005 without Ming Ying's consent. In rejecting Ming Ying's case, Ward J found that Lida Song did not hold the 25 re-transferred shares on trust for Ming Ying and that BSS did not owe any money to Ming Ying by way of an obligation to repay the amount of $106,025 or otherwise (Ying v Song [2010] NSWSC 1500 at [85]). 3Her Honour's resolution of the proceedings turned largely on her assessment of the credibility of the parties and her consequent preference for the evidence of Lida Song over that of Ming Ying. Ming Ying appealed against her Honour's judgment on the grounds referred to below. His written submissions on appeal were signed by counsel but he was unrepresented at the appeal hearing. I shall deal with the grounds of appeal seriatim. GROUND ONE: HER HONOUR ERRED IN HER APPLICATION OF SECTION 27A OATHS ACT BY RULING THAT THE AFFIDAVITS OF THE PLAINTIFF WERE INADMISSIBLE 4At the time of the hearings before Ward J in 2009, Ming Ying was unable to speak, understand, read or write English (Judgment 20 August 2009 [3]). Following objections by Lida Song, the primary judge took steps to ensure that Ming Ying was fully aware of the contents of affidavits in English purportedly sworn by him. These steps were comprehensively described in her Judgment of 20 August 2009. The description reveals that a number of opportunities were afforded to Ming Ying to rectify the unsatisfactory state of his affidavits, culminating in the grant of an adjournment of a hearing fixed for 2 and 3 July to enable that to occur. Ming Ying's written submissions on appeal assert that "[t]he attitude of the Court [at that time] had consequences for the subsequent conduct of the case" ([10]) but do not describe those consequences. In particular it is not asserted that Ming Ying was unable to adduce all the evidence that he wished to lead at the hearing which resumed on 27 September 2010. There is no reason to doubt that he was in fact able to do that. 5It is unnecessary for this Court to consider the detail of what occurred in relation to Ming Ying's affidavits as no arguable case is raised by him to suggest that any allegedly erroneous interlocutory rulings of the primary judge enured to his ultimate disadvantage in the proceedings. GROUND TWO: HER HONOUR ERRED IN FINDING THAT THE USE OF THE WORD 'SUBSCRIBE' BY A NON-ENGLISH SPEAKING PERSON WAS EVIDENCE OF A SUBSCRIPTION FOR SHARES WHEN THE PROPER LEGAL CONCLUSION ON THE EVIDENCE WAS THAT THE SHARES HAD BEEN PURCHASED 6The primary judge considered the evidence as to whether the shares acquired by Ming Ying were issued to him by BSS on incorporation or transferred to him subsequently by Lida Song, and concluded that the latter was the case. This ground proceeds upon the misapprehension that in paragraph [114] of her principal Judgment her Honour regarded Ming Ying's use of the word "subscribed" in one of his affidavits as of particular importance in resolving this issue. There is no basis for this ground. It therefore fails. GROUND THREE: HER HONOUR ERRED IN FAILING TO DISALLOW NON-RESPONSIVE AND INADMISSIBLE ANSWERS GIVEN BY THE FIRST DEFENDANT DURING CROSS-EXAMINATION 7The appellant's written submissions proffer a series of examples to support this ground. However, in my view none of them indicate that the primary judge erred in her handling of what was a difficult forensic situation, involving the vigorous cross-examination of an argumentative person whose native language was not English. Contrary to the appellant's submissions, the primary judge did not err in approaching her task in the following manner: "I consider that it is my duty to see that the witness can give what the witness considers to be a proper answer and full answer to the question. Now, some questions one might think if [the witness] could answer yes or no, but a witness might feel it necessary to qualify that answer in a particular way or the witness might not understand the question in a particular way or might be at cross purposes. I don't know. But until I hear what the answer is it is difficult for me to determine that issue ... " (Transcript p 318). 8Again contrary to the appellant's written submissions, I do not consider that the primary judge's approach was inconsistent with the proposition stated by Heydon J in Libke v R [2007] HCA 30; 230 CLR 559 at [119] that a cross-examiner is entitled to insist "not only that there be an answer fully responding to each question, but also that there be no more than an answer". 9In these circumstances, as the appellant's written submissions identify no particular answer given by the respondent in cross-examination which prejudiced his interests, but rather simply criticise the primary judge's control of the cross-examination in general, this ground should be rejected. GROUND FOUR: HER HONOUR ERRED IN FINDING, IN THE ABSENCE OF EVIDENCE, THAT SHE THOUGHT THE REASON THE FIRST DEFENDANT WAS ARGUMENTATIVE WAS 'MY IMPRESSION THAT THAT WAS NOT DUE TO A DESIRE TO AVOID ANSWERING QUESTIONS BUT RATHER A GRIEVANCE THAT HE HAD BEEN PLACED IN THE POSITION OF HAVING TO DO SO' 10This quoted comment was made by the primary judge in the course of her consideration of Lida Song's credibility (Judgment [176]). It reflected an inference that her Honour was entitled to draw from her observations of the witness and the content of his answers. Its genesis was probably in Lida Song's statement in cross-examination that his punishment for making an allegedly false statutory declaration was having to sit in the witness box and answer questions about it (Transcript p 393). Although, as the appellant's written submissions point out, the statement was made in the limited context of the allegedly false statutory declaration, I consider that the primary judge was entitled to infer that Lida Song's discomfort with questioning on that topic influenced his general attitude to his cross-examination. I accordingly reject this ground of appeal. GROUND FIVE: HER HONOUR ERRED IN FAILING TO TAKE INTO ACCOUNT THE FIRST DEFENDANT'S RETRACTION OF EVIDENCE ABOUT A THIRD PARTY WHEN FACED WITH A CASE IN REPLY OF EVIDENCE FROM THAT THIRD PARTY 11The "retraction" to which this ground refers was a statement by Lida Song's counsel that he had instructions not to rely on evidence given by Lida Song about who was to blame for the departure of a BSS director, Mr Tim Fitzgerald. He said that he understood that "that will probably take care of Ms Winfield's [counsel for Ming Ying] concerns in that regard" (Transcript p 472). Ms Winfield responded "yes, that does". 12This ground of appeal has no merit. No adverse inference could be drawn against Lida Song for attempting to avoid what he saw, apparently with good reason, as an unnecessary extension of the hearing which would result from Mr Fitzgerald being called as a witness. If Ms Winfield had regarded Lida Song's evidence on this point as important, she could have indicated that her client intended to rely upon it, notwithstanding that Lida Song did not intend to do so. However, Ms Winfield gave no such indication and the evidence therefore ceased to have any significance. In any event Ming Ying did not suggest on appeal that the primary judge was asked to, but did not, draw from these events an adverse inference in relation to Lida Song's credibility. It is not open to him to raise this credit point for the first time on appeal. 13In his submissions on this ground, Ming Ying also asserts that Lida Song "avoided answering questions about litigation from the two Chinese shareholders". The transcript reference given does not support that proposition. 14For these reasons, this ground of appeal should be rejected. GROUND SIX: HER HONOUR ERRED IN FAILING TO GIVE WEIGHT TO THE FIRST RESPONDENT'S ASSERTION THAT AS DIRECTOR OF THE SECOND RESPONDENT HE HAD LODGED FALSE TAXATION RETURNS FOR RELEVANT PERIODS WITH THE AUSTRALIAN TAXATION OFFICE 15The appellant's written submissions do not contain sufficient references to enable this ground to be understood and tested. His oral submissions did not assist either, as they amounted to little more than reliance upon the written submissions. Furthermore, Ming Ying does not assert that this submission was put to the primary judge and Lida Song submits, without contradiction, that it was not. The primary judge referred to a long list of criticisms by Ming Ying of Lida Song's evidence (Judgment [175] - [184]) and dealt with those criticisms in a manner that is unchallenged on appeal. Her Honour did not mention the present criticism, presumably because it was not made before her. 16In these circumstances I discern no arguable basis for this ground of appeal. GROUND SEVEN: HER HONOUR ERRED IN PREFERRING THE VERSION [OF EVENTS] GIVEN BY THE RESPONDENT TO THE VERSION GIVEN BY THE APPELLANT 17The appellant's written submissions in relation to this ground roamed far and wide over matters alleged to be relevant to Lida Song's credit. These included Mr Song's applications for certificates under s 128 of the Evidence Act 1995, assertions that Lida Song had admitted to inappropriate behaviour, was argumentative and unresponsive in the witness box and assertions that there were inconsistencies in his evidence and advantages to him in giving false evidence. 18The submissions do not refer to, or seek to challenge, the primary judge's reasons for preferring the evidence of Lida Song over that of Ming Ying (see Judgment [174] - [199] and [284]). They simply raise a series of propositions that, to a greater or lesser extent, might be relevant if one were assessing Lida Song's credibility for the first time. In my view, the submissions fall far short of establishing, as is necessary for this ground to succeed, that the primary judge's decision concerning the credit of Ming Ying and Lida Song was contrary to incontrovertible facts, 'glaringly improbable' or 'contrary to compelling inferences' (Fox v Percy [2003] HCA 22; 214 CLR 118 at [28] - [29]). I do not consider that the matters relied upon in relation to this ground raise any arguable case to support it. GROUND EIGHT: HER HONOUR'S DISCRETION MISCARRIED WITHIN THE MEANING OF HOUSE v R [1936] HCA 40; (1936) 55 CLR 499 19Ming Ying's first submission in relation to this ground was that the primary judge erred in stating, when Lida Song gave evidence, that Lida Song was entitled to give "a proper answer and full answer to the question". Ming Ying appears to submit that her Honour's statement involved the proposition that the witness was entitled to "supply an irrelevant or non-responsive answer". Clearly her Honour was not saying this. 20Secondly, Ming Ying complained that his counsel was forced to withdraw a question to avoid a non-responsive answer. The transcript reference given (p 320) does not explain or support this submission. At that point in Lida Song's cross-examination, he refused to answer a question on the ground that it may incriminate him and the primary judge, assuring him that he would receive a certificate under s 128 of the Evidence Act, directed him to answer the question. Counsel for Ming Ying then withdrew the question and made no objection to what had occurred. Neither the submission nor the transcript reveals any arguable ground for complaint on appeal. 21Thirdly, Ming Ying submitted that the primary judge appeared to favour Lida Song when she granted him a s 128 certificate in relation to another question despite his counsel stating that he did not believe a certificate was necessary in relation to the question (Transcript p 391). 22The transcript does not support this submission. After Lida Song objected to answering the relevant question, by inference on the grounds of a tendency to incriminate, the primary judge took the entirely proper course of exploring the basis of the objection with his counsel. No error appears in her Honour's determination that the witness's objection was well-founded. Nor was there any possible prejudice to Ming Ying because, in addition to indicating that she would give a certificate, her Honour directed Lida Song to answer the question (Transcript p 392). 23The submissions raise no arguable basis for this ground of appeal. ORDERS 24As the appellant has failed to establish that any of his grounds of appeal have any substance, the appeal should be dismissed with costs. 25TOBIAS AJA: I agree with Macfarlan JA. ********** 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: 12 November 2012