Ye v Chen

1. [1]

   MACFARLAN JA: This is an application for leave to appeal from a judgment dated 27 April 2022 of Adamson J sitting in the Common Law Division of the Supreme Court. Her Honour dismissed an appeal against a decision of 11 December 2020 of Magistrate Stapleton of the Local Court (Ye v Chen [2022] NSWSC 494). Magistrate Stapleton gave judgment for the present respondent, Ms Yu Chen, against the present applicant, Ms Rebecca Ye, and a company, Ucer Investment and Resources Management Pty Ltd (“the Company”), of which Ms Ye was the sole director, in the sum of $72,350.66 plus interest from 1 February 2018. Ms Ye and the Company appealed against those judgments, unsuccessfully.

2. [2]

   Ms Ye’s proposed appeal to this Court (the application for leave having been heard concurrently with the arguments on the appeal) is based solely on the contention that Adamson J erroneously found that she gave “a personal guarantee of the obligations of [the Company] to refund fees paid by [Ms Chen] under the [Australia Visa Application Service Agreement] dated 27 April 2017, by the handwritten document dated 17 December 2017”. For the reasons below, that contention should be rejected and Ms Ye’s application for leave to appeal refused.

Factual circumstances

1. [3]

   In or about 2017 Ms Chen decided that she would like to migrate to Australia from her home in Montreal, Canada. On the recommendation of her cousin, Ms Ying Chen, she contacted Ms Ye in Australia to obtain migration agency services. As a result, the Australia Visa Application Service Agreement (“the Service Agreement”) was entered into on 27 April 2017 between Ms Yu Chen (identified in the Service Agreement as Party B) and Ucer Investment and Resources Management Pty Ltd (identified as Party A).

2. [4]

   The document was written in both Mandarin Chinese and English. It provided for the Company, as Party A, to apply for an Australian visa for Ms Chen, as Party B, and for Ms Chen to supply documents and do other things designed to facilitate this application. It also provided for Ms Chen to pay a deposit of USD $50,000 (which she did) and the balance of USD $110,000 on issue of the visa. The Service Agreement was signed by Ms Ye on behalf of Party A, using the initial of her first name (“R”) and her surname (“Ye”).

3. [5]

   In the following seven and a half months Ms Chen and Ms Ye had a number of telephone calls and exchanges of WeChat messages in which Ms Chen inquired how her visa application was progressing. There were also two meetings in Sydney concerning the application (one around July 2017 between Ms Ye, Ms Ying Chen who is a cousin of Ms Chen, and Ms Jing Xie who is a friend of Ms Chen; and one on 4 October 2017 between Ms Ye and Ms Chen, at which two other persons, Ms Wanyun Huang and Mr Jun Chen, were also present).

4. [6]

   Following these communications, on 15 December 2017, Ms Chen said the following to Ms Ye during a WeChat call:

5. [7]

   Also on that day, Ms Chen left a WeChat message for Ms Ye in the following terms:

6. [8]

   On 16 December 2017 Ms Xie asked Ms Ye during a telephone call how the visa application was progressing and organised a meeting with her to take place the next day. Ms Ye, Ms Ying Chen and Ms Xie, and her husband, attended the meeting on 17 December 2017.

7. [9]

   Ms Xie gave evidence that Ms Ye said at the meeting:

8. [10]

   Ms Xie’s evidence concerning the meeting continued:

9. [11]

   Ms Ying Chen gave the following similar evidence of what Ms Ye said at the meeting:

10. [12]

    Ms Ye however denied attending such a meeting and indeed denied knowing Ms Chen at all, but her evidence was rejected by Magistrate Stapleton and that rejection was not challenged on the present appeal.

11. [13]

    The “Guarantee” (which I will refer to as “the Document”) that Ms Xie said that Ms Ye wrote out at the meeting was, as translated into English, in the following terms:

12. [14]

    In their arguments before this Court neither of the parties placed any significance on the reference in the Document to Ms Wanyun Huang seeking migration services from Ms Ye.

13. [15]

    Despite subsequent further communications, Ms Ye did not provide any evidence to Ms Chen of the visa application having been made (and Magistrate Stapleton in fact found that one had never been made). Nor was the deposit of USD $50,000 paid by Ms Chen under the Service Agreement ever repaid.

14. [16]

    By a document entitled “Withdraw Agreement” dated 30 January 2018, Ms Chen notified Ucer Professional Pty Ltd (a different company from that named in the Service Agreement, but one which Magistrate Stapleton found was also controlled by Ms Ye in her capacity as sole director and shareholder in 2018) that as no evidence of the visa application’s lodgement had been provided, she withdrew that application and required repayment of the deposit of USD $50,000. In doing so, she referred to “the agreed deadline” of 31 January 2018, which was the date referred to in the Document.

15. [17]

    Ms Chen subsequently commenced proceedings in the Local Court claiming the refund alleged to have been promised by Ms Ye personally in the Document. In response, Ms Ye and the Company denied entering into the Service Agreement and the alleged guarantee and in fact denied ever having met Ms Chen, communicating with her or accepting any money from her.

Magistrate Stapleton’s judgment

1. [18]

   Following a five day hearing, Magistrate Stapleton delivered a judgment on 11 December 2020 dealing comprehensively with the many issues before her. These extended beyond those before this Court.

2. [19]

   Her Honour noted that for the purpose of construing the Document it was permissible for the court “to look to the general setting in which the contract [came] into existence” and to have regard to surrounding circumstances if the language was found to be ambiguous or susceptible to more than one meaning, referring to Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 at 561; [1987] HCA 15 and Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352; [1982] HCA 24.

3. [20]

   Her Honour then observed that the Document “was written in the context that the plaintiff [Ms Chen] had demanded details of the visa application or a refund” and that Ms Ye “bought further time to provide the details” by promising a full refund if they were not found.

4. [21]

   Her Honour found that the promise of a refund was made by Ms Ye personally, principally because she signed the Document without reference to the Company. Her Honour also found that there was consideration for the promise because, at Ms Ye’s request that Ms Chen forbear from enforcing the debt, the Company was given an extension of time for performance.

Adamson J’s judgment

1. [22]

   On the appeal from the Local Court decision, Ms Ye did not clearly challenge Magistrate Stapleton’s finding that she had signed the Document, although she did contend that it constituted a mere representation rather than a contract of guarantee.

2. [23]

   Adamson J observed that the Document could not be understood without reference to the surrounding circumstances and referred, as had Magistrate Stapleton, to Codelfa. Her Honour further said that although the Service Agreement “did not stipulate a time within which the Visa was to be lodged, business efficacy would require a reasonable time to be implied”.

3. [24]

   Turning to the principal issue before her of whether, by the Document, Ms Ye assumed a personal obligation, as distinct from the Company doing so, her Honour said:

4. [25]

   Her Honour concluded that there was consideration for Ms Ye’s promise in the form of a forbearance to sue before 31 January 2018, referring to the decision of the Queensland Court of Appeal in Edlin v Williams [1998] QCA 439 at [41]–[43]; [2000] ANZ Conv R 43.

Consideration of the appeal

1. [26]

   On appeal to this Court Mr Alexis SC accepted on behalf of Ms Ye that she both signed the Service Agreement of 27 April 2017 and wrote her name on the Document of 17 December 2017. He submitted however that because Ms Ye signed the Service Agreement explicitly in her capacity as a director of the Company and because that constituted the background against which Ms Ye later wrote out and signed the Document, it was to be implied that she also signed the Document in her capacity as a director only. He submitted that in these circumstances there appeared “a contrary intention” analogous to that referred to in Bowstead & Reynolds on Agency (22nd ed, 2021, Thomson Reuters) at [9-037] as follows:

2. [27]

   Propositions to similar effect are stated in G E Dal Pont’s Law of Agency (4th ed, 2020, LexisNexis Butterworths):

3. [28]

   In terms of case authority, the principles were stated most plainly by Mellish LJ in Gadd v Houghton (1876) 1 Ex D 357 at 360 as follows: “[W]hen a man signs a contract in his own name he is prima facie a contracting party and liable, and there must be something very strong on the face of the instrument to shew that the liability does not attach to him.” Likewise, in Gadd v Houghton, James LJ said at 359: “When a man says that he is making a contract ‘on account of’ some one else, it seems to me that he uses the very strongest terms the English language affords to shew that he is not binding himself, but is binding his principal.” (See also H O Brandt & Co v H N Morris & Co Limited [1917] 2 KB 784 at 796 (Scrutton LJ); Ariadne Steamship Co Ltd v James McKelvie & Co [1922] 1 KB 518 at 535 (Atkin LJ); Lester v Balfour Williamson Merchant Shippers Ltd [1953] 2 QB 168 at 176 (Lord Goddard CJ).)

4. [29]

   The application of these principles is illustrated by the following decisions.

   1. (1)

      In Parker v Winlow (1857) 7 El & Bl 942, which concerned an action for demurrage of a ship, a memorandum of charter party was expressed to be between Parker and Winlow, the latter of whom was agent for a principal. In circumstances where the contract was signed by Winlow without any qualification, Winlow was held to be personally liable, this being consistent with his status as an agent. Lord Campbell CJ said at [947]: “[Winlow] makes the contract, using apt words to shew that he contracts; and the only ground suggested for rebutting his personal liability is that he says he is agent for another: but he may well contract and pledge his personal liability, though he is agent for another.”

   2. (2)

      A contrary intention was demonstrated in Gadd v Houghton which concerned an action for non-delivery of oranges. In that case, fruit brokers gave a fruit merchant a signed sold-note in the following terms: “We have this day sold to you on account of James Morand & Co., Valencia, 2000 cases Valencia oranges …”. (Emphasis added.) It was held that the brokers were not personally liable for non-delivery due to the qualifying words “on account of”. Mellish LJ said at 360: “[T]he words ‘on account of …’ mean that [the principals] are the people who have sold. It follows that the persons who have signed are merely the brokers and are not liable.”

   3. (3)

      Similarly in Lester v Balfour Williamson Merchant Shippers Ltd brokers who sold to wholesalers tins of beans and sausages “for account of our principals” were held not to be personally liable for the underweight goods. (Emphasis added.) Lord Goddard CJ at 176 quoted with approval the following statement of Atkin LJ in Ariadne Steamship Co Ltd at 536: “[T]he words ‘on account of’ and the words ‘as agents’ are conclusive, when qualifying the signature to negative liability as principal”.

   4. (4)

      In contrast, in H O Brandt & Co v H N Morris & Co Limited [1917] 2 KB 784, which concerned an action for non-delivery of aniline oil, merchant shippers signed and gave to chemical manufacturers a bought note which stated, “From [the agent / merchant shippers] … For and on behalf of [the principal]. The majority distinguished Gadd v Houghton on the facts and held that the words “For and on behalf of …” were to be treated as a declaration of the destination of the goods and were insufficient to rebut the prima facie presumption of personal liability. Neville J however dissented, holding that the presumption was rebutted by the words “on behalf of”. His Honour did not seek to draw a distinction between the words “as agents for”, “on account of” and “on behalf of”; he said the following (at 801): “… I wish to express my surprise at finding in the books such a subtle discrimination attributed to the commercial mind as to draw distinctions between the words ‘as agents for’, ‘on account of’, and ‘on behalf of. To my mind each of these phrases bears precisely the same meaning.”

5. [30]

   A brief survey of the authorities on the personal liability of agents shows that there is some uncertainty as to what precise words in a contract are sufficient to rebut the prima facie presumption of personal liability arising from a signature. The present case however does not fall into that grey area because there are no words in the Document which can be regarded as having a qualifying effect.

6. [31]

   In light of these authorities, I reject Mr Alexis’ submission, even accepting, as is implicit in it, that the relevant “contrary intention” need not be manifested in the document under consideration but may be discerned from the surrounding circumstances.

7. [32]

   Importantly, the Service Agreement of April 2017, with which the Document of December 2017 was concerned, was plainly signed by Ms Ye on behalf of the Company which was named as “Party A” to agreement, with Ms Chen being “Party B”. Ms Ye’s signature appeared under the words “Party A Signature” at the end of the agreement.

8. [33]

   In contrast, the Document of December 2017 did not refer to the Company and was signed by “Rebecca Ye” without any indication of agency on behalf of the Company, or at all. As she herself wrote out the Document, and, it can be inferred, composed its language, Ms Ye had every opportunity to qualify her signature. That she did not is readily explained by the repeated demands from or on behalf of Ms Chen to be provided with details of the visa application that the Company was required to have lodged and the need for something extra (that is, Ms Ye’s personal assurance) in order to stave off demands on the Company. On this basis, Ms Ye, as Magistrate Stapleton held, “bought further time to provide details”.

9. [34]

   Mr Alexis also submitted that the Withdraw Agreement of 30 January 2018 assisted his argument because it was consistent with a request to the Company to repay the deposit rather than a demand on Ms Ye to do so, despite the fact that the company to which the document is expressed to be directed was a different Ucer company to that which was a party to the Service Agreement. However, even if the Withdraw Agreement is to be regarded as part of the agreement arising out of the December 2017 meeting, (because, on Mr Alexis’ submission, it constituted an acceptance of the offer said to have been made by the Document) it does not indicate that Ms Ye was not intending to assume a personal obligation by signing the Document. Even on Ms Chen’s case, the Company remained liable under the Service Agreement. On that case, the Document did not release it from such a liability. Rather, it added a liability of Ms Ye to refund the deposit. There was therefore no inconsistency with her case for Ms Chen to continue to hold the Company liable.

10. [35]

    Further, there is not, contrary to submissions made by Mr Alexis, any significance in the absence of use in the Document of the word “guarantee” or in its use of the word “refund”. The obligation Ms Ye assumed was not simply one of “guarantee”. It was in effect an obligation to have the Company effect a refund or to pay the money herself. Nor did the word “refund” mean that only the Company was assuming an obligation. It reflected the fact that Ms Chen wanted to obtain her money back. It did not indicate that the Company, as distinct from Ms Ye, was the only possible source of the repayment. Further, the description of the intended refund as being “of fees” aptly refers to what Ms Chen was to receive back and did not indicate that the refund liability was one of the Company only.

11. [36]

    Moreover, the fact that the reference to the refund is expressed in the passive voice, without identifying the refunder, is not determinative. In my view, Ms Ye’s unqualified signature indicates, in the absence of any evidence of contrary intention, that she assumed a primary obligation to ensure the refund occurred.

12. [37]

    Moreover, Mr Alexis’ reliance on the general rule that guarantees are construed strictly in favour of the surety or guarantor (see Ankar at 561; Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 256; [1989] HCA 63; Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 at [17]–[23]; Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44 at [53]) does not assist him as the Document is not in the conventional form of a guarantee; it is an informal document written out by a non-lawyer guarantor. If a strict reading occurred, it would in my view favour Ms Chen because Ms Ye appears to have been an experienced professional, or at least businessperson, who had the opportunity to use her own words to delineate the responsibility that she assumed.

13. [38]

    Mr Alexis did not challenge the statement of law in Edlin v Williams (at [41]–[42]) that was relied on both by Magistrate Stapleton and Adamson J, to the effect that consideration for a guarantee (or indemnity) may take the form of forbearance by the creditor at the surety’s express or implied request.

14. [39]

    I do not accept his submission that there was no relevant request. The request is recorded at the start of the Document where Ms Ye says “please allow until 31 January 2018 to investigate the progress and circumstances”. By these words Ms Ye sought forbearance from Ms Chen for the stipulated period and it is not suggested that she did not obtain it. Ms Ye’s preparation of the Document followed shortly after claims were made or threatened by Ms Chen to Ms Ye (see [5]–[13] above). On 15 December 2017 Ms Chen referred to a “full refund of the professional fees I paid” being made and to Ms Ye paying “compensation for my loss”. She also told Ms Ye that “you must refund all the payment and interests [sic], otherwise you will be responsible”. The Document’s reference to “no further claims” if the details of the visa application were found made sense in the context of these earlier claims and demands, made only two days before, as did Ms Ye’s proffer of the promise to provide a full refund if no records were found in order to buy herself more time (as Magistrate Stapleton described it).

15. [40]

    An additional matter that I should refer to is the question of evidence of surrounding circumstances. As is apparent from the above, I have taken account of some background circumstances for the purpose of construing the Document (in particular the terms of the Service Agreement and the making of demands on Ms Ye for information about the intended visa application). This accords with the approach of Magistrate Stapleton and Adamson J and with conventional authority such as Codelfa (see also Cherry v Steel-Parke (2017) 96 NSWLR 548; [2017] NSWCA 295 at [46]–[90]; HDI Global Specialty SE v Wonkana No 3 Pty Ltd (2020) 104 NSWLR 634; [2020] NSWCA 296 at [23]–[26]). I have stopped short however of relying on references at the meeting of 17 December 2017 to a “guarantee”. It seems to me that reliance on that evidence would be inconsistent with the preclusion by Mason J in Codelfa of reliance on “prior negotiations” in so far as they “consist of statements and actions of the parties which are reflective of their actual intentions and expectations” (at 352). As his Honour pointed out, they only reveal “the terms of the contract which the parties intended or hoped to make” and are “superseded by, and merged in, the contract itself” (at 352).

16. [41]

    The same observations are applicable to those parts of the discussions on 17 December 2017 relied upon by Mr Alexis. He contended that the evidence of discussions assisted his case because the word “guarantee” was only used in them as an assurance that Ms Ye would personally investigate the situation. That is correct, but Ms Ye is later recorded as saying “I will refund …” at the meeting on 17 December 2022, at least on the accounts of Ms Jing Xie and Ms Ying Chen in their respective affidavits. This is against Mr Alexis’ argument that Ms Ye did not assume any personal obligation. The better view is however that this evidence (that is, of Ms Ye saying “I will refund”) also is not available in construction of the Document, for the reasons I have given.

Conclusions and orders

1. [42]

   For these reasons, the issue raised by Ms Ye’s proposed appeal (see [24] above) should be answered unfavourably to her, with the Court concluding that it was not demonstrated that Adamson J or Magistrate Stapleton erred. Ms Ye’s proposed appeal therefore lacks merit. As the amount at issue is relatively limited and the proposed appeal to this Court would be the second appeal afforded to Ms Ye if leave were granted, the application for leave to appeal should in my view be dismissed with costs. The parties accepted that if this view were taken, the Court should not make any changes to certain interlocutory orders that were made, leaving Ms Ye to apply for variation of those orders, if and when appropriate.

2. [43]

   MEAGHER JA: I agree with Macfarlan JA.

3. [44]

   MITCHELMORE JA: I agree with Macfarlan JA.