Zeng v Mossensons [2014] NSWSC 1179

Supreme Court New South Wales

Medium Neutral Citation: Zeng v Mossensons [2014] NSWSC 1179 Hearing dates: 11/08/2014, 12/08/2014, 13/08/2014, 14/08/2014, 15/08/2014, 18/08/2014, 19/08/2014, 20/08/2014 and 21/08/2014 Decision date: 21 August 2014 Jurisdiction: Equity Division Before: McDougall J Decision: See at [178] to [186], [188] Catchwords: TRUSTS - express trust - whether balance of moneys held on trust for purposes set out in a deed should be repaid where deed terminated - whether entitled to terminate deed where breaches of trust - whether breaches constituted repudiation of agreement - whether payments were made in breach of trust - whether payments made contrary to terms permitted in deed - whether party who directed payment from trust in breach of deed also liable - whether trustee entitled to contribution or indemnity by party who procured breaches of trust CONTRACTS - whether amounts paid for purposes which have failed - whether there is a resulting trust where purposes have failed - whether total failure of consideration - whether entitled to have account of profits where no evidence that money applied towards the purposes for which it was paid - whether this should be at plaintiffs' risk as to costs PRACTICE AND PROCEDURE - application to amend pleadings - whether to grant leave to amend pleadings after hearing already commenced - where amendment would have required recasting of the evidence - where new pleadings inconsistent with admissions made in existing pleadings DEEDS - parties to deeds - whether a person who signed a deed as a director of another party, is also a party to that deed and bound by that deed - where person named as a party to the deed but did not execute deed in own right as a party Legislation Cited: Corporations Act (2001) (Cth) Cases Cited: Hasler v Singtel Optus [2014] NSWCA 266 Category: Principal judgment Parties: Zeng Zhao Qin (First Plaintiff/First Cross-Defendant in First Cross-Claim) Shandong Tianye Mining Co Limited (Second Plaintiff/Second Cross-Defendant in First Cross-Claim) Shandong Tianye Group Pty Limited (Third Plaintiff/Third Cross-Defendant in First Cross-Claim) Mossensons Pty Ltd (First Defendant/First Cross-Claimant in Second Cross-Claim) Ian Mossenson (Second Defendant/Second Cross-Claimant in Second Cross-Claim) Shandong Tianye Australia Limited (Third Defendant/First Cross-Claimant to First Cross-Claim/First Cross-Defendant in Second Cross-Claim) Gabriel Ehrenfeld (Fourth Defendant/ Second Cross-Claimant to First Cross-Claim/Second Cross-Defendant in Second Cross-Claim) Tilapia Pty Ltd (Fifth Defendant/ Third Cross-Defendant in Second Cross-Claim) (De-registered) Fundamental Capital Pty Ltd (Sixth Defendant/ Fourth Cross-Defendant in Second Cross-Claim) Steinbruck Management Services Pty Ltd (Seventh Defendant/ Third Cross-Claimant to First Cross-Claim/Fifth Cross-Defendant in Second Cross-Claim) (De-registered) HWL Ebsworth Lawyers (Fourth Cross-Defendant in First Cross-Claim) Li Qun (Fifth Cross-Defendant in First Cross-Claim) Hu Zhigang (Sixth Cross-Defendant in First Cross-Claim) Representation: Counsel: P Jammy (Plaintiffs) B McManus (First and Second Defendants) G Ehrenfeld (Fourth Defendant in person) Third, Fifth, Sixth and Seventh Defendants not represented at hearing Solicitors: HWL Ebsworth (Plaintiffs) Kennedys (First and Second Defendants) G Ehrenfeld (Fourth Defendant in person) File Number(s): 2012/203913