Linjing Fang v Xiaodan Sun & Ors [2014] NSWSC 713

Supreme Court New South Wales

Medium Neutral Citation: Linjing Fang v Xiaodan Sun & Ors [2014] NSWSC 713 Hearing dates: 3, 4 & 6 February 2014 Decision date: 10 June 2014 Jurisdiction: Equity Division Before: Slattery J Decision: Judgment for the plaintiff in the sum of $654,850. Misleading and deceptive conduct established. Breach of fiduciary duty established. Directions given for any contest about interest and costs. Catchwords: TRADE PRACTICES - misleading and deceptive conduct - Beijing-based plaintiff seeks to invest in Korean restaurant in Sydney to assist the grant of a business migration visa to Australia - proposal for partnership in the acquisition of the restaurant with a Sydney-based partner- plaintiff has judgment against Sydney-based partner - remaining defendant an intermediary - alleged misrepresentation by intermediary in restaurant as to the quantum of funds the Sydney-based partner proposed to invest in the restaurant - whether defendant engaged in the conduct alleged - whether the conduct was misleading and deceptive - whether the plaintiff relied upon any representations made - whether any loss suffered as a result of misleading and deceptive conduct.

EQUITY - fiduciary duty - whether intermediary undertook to act as the representative in Australia of the Beijing-cased plaintiff - whether fiduciary duty owed to plaintiff - whether the intermediary breached her fiduciary duty to the plaintiff. Legislation Cited: Fair Trading Act, s 42 Trade Practices Act, s 52 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 Catt v Marac Australia Limited (1986) 9 NSWLR 639 Grecko v Bendigo Machinery Pty Limited (1985) 8 VPR 40/521 Hagan v Waterhouse (1991) 34 NSWLR 308 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 Hospital Products Limited v US Surgical Corporation (1984) 156 CLR 41 Lawson Hill Estate Pty Limited v Tovegold Pty Limited [2005] FCAFC 169 Nocton v Lord Ashburton [1914] AC 932 Re Dawson ; Union Fidelity Trustee Co Ltd v Perpetual Trustee Co Ltd [1966] 2 NSWLR 211 Trade Practices Commission v JNR Enterprises Pty Limited (1991) 99 ALR 325 Wallersteiner v Moir (No 2) [1975] QB 373 Yorke & Anr v Lucas (1985) 158 CLR 661 Texts Cited: Meagher, Gummow and Lehane, Equity - Doctrines and Remedies, 4th Edition, 2002, at [5-195] Category: Principal judgment Parties: Plaintiff: Linjing Fang First defendant: Xiaodan Sun Second defendant: Mal Soon Park Third defendant: Chong Hung Park Fourth defendant: Zozoen Pty Limited (ACN 139 566 528) Representation: Counsel: Plaintiff: M. Pesman SC; C. Alexander First & Third: G.W.McGrath SC Solicitors: Plaintiff: Albert Yau, Yau & Wang Lawyers First & Third Defendants: Derek Xu, Jurisbridge Legal File Number(s): 2013/25078 Publication restriction: No