Pacific Shoji Pty Ltd v Xia [2018] NSWCA 290

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Pacific Shoji Pty Ltd v Xia [2018] NSWCA 290 Hearing dates: 27 June 2018 Decision date: 28 November 2018 Before: McColl JA at [1]; Leeming JA at [2]; Sackville AJA at [123] Decision: 1. Appeal allowed in part.

2. Set aside the judgment in favour of Ms Xia on her claim in the amount of $268,739.14 plus interest in the amount of $52,926.17 dated 31 August 2017, and in lieu thereof, enter judgment in favour of Ms Xia in the amount of $210,767.73 plus interest, with effect from 31 August 2017.

3. Direct the parties to file and serve, within 7 days, an agreed calculation of interest, or their separate calculations of interest, for the purposes of order 2 above.

4. Pacific Shoji to pay 60% of Ms Xia's costs of the appeal. Catchwords: CONTRACT – damages for repayment of loan – whether primary judge erred in finding that money paid by plaintiff to defendant was by way of loan – held primary judge erred in finding money was lent to defendant

CONTRACT – damages for failure to pay commission – primary judge found informal agreement for payment of 10% commission if plaintiff could find buyer for defendant's factory – whether sufficient evidence to sustain findings – whether commission payable in circumstances where sale not achieved until employee's contract terminated – whether appellant permitted to run different case on appeal – appellant precluded from running new case on appeal

EMPLOYMENT – contract of employment – whether employee sold goods on credit to other customers – employee concealed fact from employer – whether breach of contract – whether employer entitled to damages for unpaid price of those goods – held breach established, but employer failed to establish breach had caused any loss Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 District Court Act 1973 (NSW), s 127 Justice Legislation Amendment Act (No 3) 2018 (NSW), Schedule 1 Cases Cited: Australian Wholesale Meats (Sydney) v S&R Cool Logistics Pty Ltd [2018] NSWSC 1541 Concut Pty Ltd v Worrell [2000] HCA 64; 75 ALJR 312 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351; [2001] HCA 2 Xia v Pacific Shoji Pty Ltd [2017] NSWDC 161 Category: Principal judgment Parties: Pacific Shoji Pty Ltd (Appellant) Helen Rong Xia (Respondent) Representation: Counsel: D A Lloyd (Appellant) Steven Sher (Solicitor) (Respondent)