Firmtech Aluminium Pty Ltd v Xie; Zhang v Xu; Xie v Auschn Conveyancing & Associates Pty Ltd

1. [1]

   This litigation arises out of the breakdown of a business relationship between, on the one hand, Mr Zhaohui (Kevin) Xu and, on the other, Mr Jiamin Zhang and his wife, Ms Xiaoyan (Yan) Xie.

2. [2]

   In May 2018, Mr Xu, Mr Zhang and Ms Xie agreed to establish a company called Firmtech Aluminium Pty Ltd. Each of Mr Xu and Mr Zhang was a director of Firmtech and Ms Xie was the General Manager. Each of Mr Xu and Mr Zhang was a 50% shareholder in Firmtech.

3. [3]

   Firmtech operated a business manufacturing and installing aluminium windows and doors and performing façade works (the Windows and Doors Business) and also operated a construction business. Mr Zhang and Ms Xie were responsible for running the Windows and Doors Business, and Mr Xu was responsible for running the construction business.

4. [4]

   Prior to the establishment of Firmtech, Mr Zhang and Ms Xie had performed work for a number of other businesses in the aluminium windows and doors industry, including for a company called Firmtech Aluminum Pty Ltd. This company was registered in May 2017. Ms Xie was its sole director and was the ultimate beneficial owner of all of its shares.

5. [5]

   The only difference between the name of the company which was established by the parties in 2018 and which I have called “Firmtech” (Firmtech Aluminium Pty Ltd) and the name of this other company which had been established by Ms Xie in 2017 (Firmtech Aluminum Pty Ltd) is that the name of the latter adopted the US spelling “Aluminum” (without the second “i”), while the name of the former adopted the British/Australian spelling “Aluminium”. In order to distinguish Ms Xie’s company from Firmtech, I will refer to it as “Aluminum”.

6. [6]

   When Firmtech was established in 2018, Ms Xie and Mr Zhang provided their industry experience and contacts, as well as some machinery and existing projects, and Mr Xu provided capital. Mr Xu was informed of the existence of Aluminum prior to Firmtech being established. There is a dispute regarding the terms of his discussions with Ms Xie about Aluminum and, in particular, whether there was an agreement that Aluminum would cease, or continue, operations after the establishment of Firmtech.

7. [7]

   From around 2019, while Mr Zhang was a director of Firmtech and Ms Xie was its general manager, and while each was responsible for securing, and managing, projects for Firmtech’s Windows and Doors Business, they took steps to obtain, and perform, projects for Aluminum in the same industry. Each of the projects which was undertaken by Aluminum involved work of a type that was capable of being performed by Firmtech. There is a dispute regarding whether Mr Xu was aware of, and agreed to, the performance of those projects by Aluminum.

8. [8]

   Subsequently, Ms Xie and Mr Zhang informed Mr Xu that they wished to end their association with Firmtech. There is a dispute whether the relevant discussions occurred from late September 2020, or from late January 2021, and also a dispute as to what was discussed and agreed.

9. [9]

   From around late 2020, Ms Xie and Mr Zhang started performing work in the aluminium windows and doors industry through another company which was wholly owned by Ms Xie, Logikal Façade Solutions Pty Ltd, as well as continuing to perform work through Aluminum. Ms Xie and Mr Zhang acknowledged that, from late 2020, they operated businesses through Logikal and Aluminum which were in competition with Firmtech’s Windows and Doors Business, but contended that they did so only after the parties had agreed to close down Firmtech and go their separate ways. Mr Xu disputed this, contending that he did not agree to any work being performed by these other entities and that he told Mr Zhang and Ms Xie that it was his intention to continue to operate Firmtech’s Windows and Doors Business after they departed.

10. [10]

    In addition to establishing and operating Firmtech, the parties had joined together in investing in two properties, one being a residential property in Panania (the Panania Property) and the other being a commercial property in Lansvale (the Lansvale Property). The Panania Property was purchased in Ms Xie’s name. The Lansvale Property was purchased in the name of an entity called Firmtech Holdings Pty Ltd (which I will refer to as Holdings). It was the trustee of a unit trust, and was established for the purpose of purchasing and holding the Lansvale Property in that capacity. Mr Xu and Mr Zhang were the directors of Holdings and were equal shareholders. The units in the trust were owned by entities associated with Ms Xie and Mr Xu’s wife.

11. [11]

    In early 2021, the parties agreed to sell the Panania Property and the Lansvale Property. Mr Xu’s firm, Auschn Conveyancing & Associates Pty Ltd, acted as conveyancer for, respectively, Ms Xie and Holdings in relation to the sale of those properties. Following receipt of the settlement moneys, Mr Xu caused Auschn to pay various sums from the settlement funds to accounts in the name of his wife and in the name of companies which he controlled, as well as to certain third parties. Ms Xie claimed that Auschn and Mr Xu did not have authority to make such payments from the proceeds of the sale of the Panania Property, and Holdings made a similar claim in respect of the payments from the proceeds of the sale of the Lansvale Property.

12. [12]

    These events have given rise to three proceedings.

13. [13]

    In the first proceeding, Firmtech Aluminium Pty Ltd v Xie (2022/221710) (the Principal Proceeding), Mr Xu brings claims on his own behalf and also on behalf of Firmtech, pursuant to leave granted by the Court under s 237 of the Corporations Act 2001 (Cth) (the Act). The Defendants are Ms Xie, Mr Zhang, Aluminum and Logikal (the Zhang/Xie Parties). (Seven other corporations related to the Zhang/Xie Parties were previously named as defendants, but were removed as parties when the Summons was amended.)

14. [14]

    In the Principal Proceeding, Mr Xu and Firmtech allege that Ms Xie and Mr Zhang wrongfully diverted numerous projects from Firmtech’s Windows and Doors Business to Aluminum or Logikal, and that they thereby breached the terms of a contract with Mr Xu, their statutory duties as officers of Firmtech, and the fiduciary obligations which they owed to each of Firmtech and Mr Xu. Mr Xu and Firmtech also allege that Aluminum and Logikal were knowingly involved in those breaches of duty. The relief sought includes a declaration that Aluminum and Logikal hold their assets and undertakings on constructive trust for Firmtech, an account of profits or equitable compensation, and damages.

15. [15]

    In the second proceeding, Xie v Auschn Conveyancing & Associates Pty Ltd (2022/277905) (the Panania Proceeding), Ms Xie brings a claim against Mr Xu, Auschn and Auschn Global Group Pty Ltd. Mr Xu is the sole shareholder and director of each of Auschn and Global.

16. [16]

    In the Panania Proceeding, Ms Xie alleges that Auschn did not have authority to make payments from the settlement proceeds of the Panania Property to Global; that Auschn acted in breach of contract and in breach of its fiduciary duties in making those payments; that Mr Xu knowingly participated in Auschn’s breach of its fiduciary obligations and that Global knowingly received the payments as a result of this breach; and that Global is liable for money had and received.

17. [17]

    In the third proceeding, Zhang v Xu (2022/259467) (the Lansvale Proceeding), Mr Zhang brings claims on behalf of Holdings, pursuant to leave granted nunc pro tunc by the Court on 2 February 2023, against Mr Xu, Auschn, Holdings, Ms Gao (who is Mr Xu’s wife) and a corporation named Firmtech Aluminium Windows and Doors Pty Ltd (FAWD). Mr Xu is the sole director and shareholder of FAWD.

18. [18]

    In the Lansvale Proceeding, Mr Zhang and Holdings allege, among other things, that Auschn did not have authority to make payments from the settlement proceeds of the Lansvale Property to Mr Xu, FAWD, or Ms Gao; that Auschn acted in breach of contract and in breach of its fiduciary duties in making those payments; that Mr Xu knowingly assisted in this breach and also breached his duties as a director of Holdings; and that Mr Xu, FAWD and Ms Gao are liable for money had and received.

19. [19]

    Before turning to consider the issues in each proceeding, it is convenient to deal with the submissions made by the parties about the approach to fact-finding and, in particular, about the credit of the main witnesses.

Issues regarding fact-finding

1. [20]

   Many of the critical issues in the three proceedings turn on issues of knowledge and consent.

2. [21]

   In the Principal Proceeding, it is common ground that, from around 2020, Aluminum and Logikal were performing work of the type performed by Firmtech’s Windows and Doors Business. The key disputes are whether Mr Xu had knowledge of, and consented to, this work being performed by Ms Xie’s companies, and whether the parties reached an agreement (and if so, when) that Firmtech would close down and that they would be free to pursue separate businesses in competition with each other.

3. [22]

   In the Panania Proceeding and the Lansvale Proceeding, it is common ground that payments were made from the settlement proceeds to persons and companies associated with Mr Xu. The key dispute in each of those proceedings is whether those payments were made in accordance with authority or instructions given by Ms Xie and Mr Zhang.

4. [23]

   In respect of those key disputes of knowledge and consent, the principal participants – Mr Xu, Mr Zhang and Ms Xie – gave competing accounts of conversations between themselves which occurred several or more years ago. Each of them was extensively cross-examined about these events. Each party advanced submissions that the Court should make adverse credit findings in relation to, and disregard the evidence of, the other party’s witnesses.

5. [24]

   The Court is to reason to its conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] per Gleeson CJ, Gummow and Kirby JJ. This does not eliminate the established principles about witness credibility, but it tends to reduce the occasions where those principles are seen as critical: ibid.

6. [25]

   In an often-quoted observation in Watson v Foxman (1995) 49 NSWLR 315 at 319, McLelland CJ in Eq made the following observations regarding the fallibility of human memory, particularly when disputes intervene:

7. [26]

   In Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, Bell P referred to those comments of McLelland CJ in Eq (at [77]), and also a number of observations by McHugh JA (at [78]-[83]), as highlighting the “corrosive effect of the passage of time and its consequences for the quality and integrity of the trial process”: see Herron v McGregor (1986) 6 NSWLR 246 at 253-255; Longman v The Queen (1989) 168 CLR 79 at 107-108; [1989] HCA 60; and Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 at 551; [1996] HCA 25.

8. [27]

   Similar observations were made by Black J in Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7]:

9. [28]

   While oral testimony should be assessed in the light of the objective contemporaneous evidence, such testimony can provide important context for understanding particular documents and their significance. In ET-China.com International Holdings Ltd v Cheung (2021) 150 ASCSR 461; [2021] NSWCA 24 at [27]-[28], Bell P (with whom Bathurst CJ and Leeming JA agreed) observed as follows:

10. [29]

    In the present case, a complicating factor is that each of the relevant conversations was in Mandarin. However, none of the witnesses gave, in their affidavits, an account of what was said in Mandarin. Instead, each gave evidence, in English, of the substance of what was communicated, with their accounts of each conversation preceded by statements that words “to the effect” of those set out (in English) were used.

11. [30]

    In his first affidavit filed in the Principal Proceeding, Mr Xu gave the following evidence (under the heading “Translation”):

12. [31]

    Mr Xu did not give any similar evidence regarding the preparation of his remaining seven affidavits in the proceedings. Given that Mr Xu had required “the assistance of a lawyer who speaks Mandarin” to prepare his first affidavit, it is likely that he needed some assistance for the preparation of his subsequent seven affidavits. However, given the lack of any accredited interpreter’s affidavit accompanying those remaining affidavits, it appears that no such interpreter was used in their preparation. Accordingly, the identity of any person who assisted Mr Xu in preparing those affidavits, and the qualifications of any such person, are unknown.

13. [32]

    Ms Xie and Mr Zhang were both asked questions in cross-examination regarding how they had come to give evidence, in English, of conversations which occurred in Mandarin (given that each of them required the assistance of an interpreter in Court). Each explained that they had used other resources, such as Google Translate or the assistance of an unidentified employee.

14. [33]

    Each of Mr Xu, Mr Zhang and Ms Xie was cross-examined over several days. Each demonstrated, under cross-examination, a command of English to varying degrees. Mr Xu gave his evidence in English, without the assistance of an interpreter. Mr Zhang required the assistance of an interpreter in giving his evidence, but was content for the main part for his cross-examination to proceed in English, choosing only occasionally to have questions translated into Mandarin or to give answers in Mandarin. Ms Xie relied on an interpreter to a greater degree, although the extent to which she did so lessened later in her cross-examination, such that on her third day in the witness box she gave evidence predominantly in English.

15. [34]

    The fact that (with the exception of the first of Mr Xu’s eight affidavits) none of the key witnesses used an accredited interpreter in the preparation of their affidavits increases doubt about the reliability of the conversations recorded in their affidavits. As McLelland CJ in Eq observed in Watson, there is a risk that a person’s recollection of conversations is affected by not only the passage of time, but also the intervention of litigation. This risk is compounded where a witness, with some degree of fluency in English, has been involved in the task of translating the recollected substance of a conversation into English. The act of translation necessarily involves choices regarding vocabulary, syntax and tone, and those choices may, consciously or unconsciously, take into account the witness’s interests in the litigation.

16. [35]

    These matters have not led me to conclude that the evidence of conversations given by any or all of the principal witnesses is so unreliable that it should simply be rejected in its entirety. I do not consider that the key disputes in this case can be resolved either by ignoring the witnesses’ competing accounts of the relevant conversations, on the basis that the witnesses have not recorded the precise words used and the method of translation is unclear, or by treating any of these accounts as a text which able to be parsed and analysed in order to resolve any issue of knowledge or consent. The former approach would involve putting aside evidence that is of central relevance to the key issues in dispute, while the latter approach would involve assuming a level of accuracy in the recollections and translations which is unwarranted. Instead, in considering and determining the main issues in dispute, I have taken account of the affidavit evidence given by each of the principal witnesses (in English) of “the effect of” the relevant conversations (in Mandarin), and have treated this as representing the witness’s best effort to capture the gist of the relevant conversations (see Wild v Meduri [2024] NSWCA 230 at [245] per Bell CJ). I have sought to assess the witnesses’ competing accounts of the gist of what was said in the light of their cross-examination about these events, the contemporaneous documentary evidence and the overall probabilities.

17. [36]

    One of the main sources of contemporaneous documentary evidence is a group chat between Mr Xu, Ms Xie and Mr Zhang on the WeChat platform (the Group Chat). There were numerous messages posted on the Group Chat in evidence, extending over the course of three years. This appears to have been the principal means by which the parties communicated about their business affairs (with there being, by comparison, far fewer emails exchanged between them). Each of Mr Xu, Ms Xie and Mr Zhang posted messages on the Group Chat, and each read the messages posted by others on the Group Chat, throughout the period of their dealings in relation to Firmtech.

18. [37]

    These WeChat messages provide their own difficulties. All of the messages exchanged by the parties were in Mandarin. In some instances, there were competing translations in evidence, each of which was a certified translation. I have proceeded on the basis that, where alternative translations are in evidence, each is an open and available translation, and any choice between them is to be determined having regard to the surrounding context and objective circumstances. In any case, many of these messages require interpretation in the light of other contemporaneous evidence, since the WeChat messages often comprise incomplete sentences, which assume a familiarity with the relevant subject matter or with prior discussions.

19. [38]

    Each side made submissions about the credit of the other side’s witnesses, including by reference to the manner in which the witnesses gave their evidence. For example, there were submissions that Mr Xu “was prone to avoiding answering important questions by launching into lengthy responses which were, in substance, passionate submissions in support of his case”; that Mr Zhang “frequently sought to volunteer non-responsive information which he thought might be helpful to his case”; and that Ms Xie “also performed poorly in terms of non-responsiveness and a failure to give concise and responsive answers to many of the questions she was asked”, and that she “frequently required clear questions to be repeated, notwithstanding that they had been interpreted for her”.

20. [39]

    Each of the key witnesses, at times, gave answers which were non-responsive. In particular, each had a tendency, to various degrees, to interpolate, and repeat, matters which were not germane to the question being asked, but which the witness probably considered to be material which supported his or her case. Each came across, at times and to varying degrees, as defensive and unwilling to give a direct answer to questions which were perceived to be harmful to their interests.

21. [40]

    I do not consider that those matters provide any sound basis for determining the credibility of the testimony of the main witnesses in these proceedings. The well-known limitations on making credit assessments based on a person’s demeanour are amplified where cultural issues may impact the manner in which a person responds to questions, and where evidence is given in a second language, of which the witness has a limited command, or through an interpreter. In DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177; [2021] HCA 12, Edelman J observed at [54] (footnotes omitted):

22. [41]

    In Huang v Wei (No 2) [2022] NSWSC 473 at [18], Kunc J made the following observations which are of relevance to the present case:

23. [42]

    Some of the credit submissions were made on the basis that certain evidence that was confidently given by a witness was shown to be demonstrably incorrect. I am, however, mindful that, as Basten JA said in Sangha v Baxter [2009] NSWCA 78 at [155] (Handley AJA agreeing), there “are risks in making global findings about credibility of any particular witness”. His Honour observed (at [155]-[156]) that:

24. [43]

    For those reasons, I have not made any global assessment of the credibility of the three main witnesses. Instead, in respect of the key disputed conversations and events, I have evaluated each witness’s evidence regarding those matters not only in the light of their responses in the course of their extensive cross-examination, but also in light of the contemporaneous documents, the objectively established facts, the apparent logic of events, the existence and nature of corroborative evidence, and the effect of the evidence as a whole.

25. [44]

    Finally, in deciding whether I am satisfied that the case against the Zhang/Xie Parties has been proved on the balance of probabilities, I have taken into account the nature of the cause of action, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged: Evidence Act 1995 (NSW), s 140(2); Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J; [1938] HCA 34; and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ; [1992] HCA 66.

Overview of Issues

1. [45]

   The main issues which arise for determination in the Principal Proceeding are as follows:

   1. (1)

      whether, at the time of establishing Firmtech, Mr Xu agreed with Ms Xie that she could continue to use Aluminum for the purposes of operating a business in the aluminium windows and doors industry;

   2. (2)

      whether, prior to work on certain projects being undertaken by Aluminum and Logikal, Ms Xie and Mr Zhang obtained Mr Xu’s consent to those projects being performed by Ms Xie’s companies rather than by Firmtech;

   3. (3)

      whether (and if so, when) Mr Xu agreed with Ms Xie and Mr Zhang to close down Firmtech and the terms of any such discussion;

   4. (4)

      whether (and if so, in what circumstances) Ms Xie and Mr Zhang excluded Mr Xu from the management of Firmtech and the reasons why Mr Xu set up FAWD;

   5. (5)

      whether, by undertaking work in the aluminium windows and doors industry through Aluminum and Logikal, Ms Xie and Mr Zhang breached:

   6. (6)

      whether the affairs of Firmtech were conducted by Mr Zhang and Ms Xie in a manner which was contrary to the interests of the members as a whole, and which was oppressive to, unfairly prejudicial to, or unfairly discriminatory against Mr Xu; and

   7. (7)

      whether Firmtech and Mr Xu are entitled to the declaration of a constructive trust over the assets and undertaking of Aluminum and Logikal, or to compensation or an account of profits (and the quantification of any such relief).

Pre-incorporation Agreement

1. [46]

   Between 2011 and 2017, Ms Xie and Mr Zhang worked for various businesses engaged in the aluminium windows and doors industry.

2. [47]

   On 31 May 2017, Aluminum was incorporated by Ms Xie. She was its sole director. Its sole shareholder was JKZ (Australia) Pty Ltd, which was wholly owned by Ms Xie. During the financial year ending 30 June 2018, Aluminum performed a negligible amount of work, reporting total income of around $3,000.

3. [48]

   In December 2017, Ms Xie and Mr Zhang proposed to Mr Xu that they establish an aluminium windows and doors business together. Mr Xu did not have any experience in this industry, but had capital available for investment.

4. [49]

   Discussions between Mr Xu, Ms Xie and Mr Zhang continued over a number of months. It is common ground that a consensus was reached in around May 2018. This led to the incorporation of Firmtech on 18 May 2018.

5. [50]

   There was a large measure of common ground regarding the pre-incorporation agreement formed between Mr Xu, Ms Xie and Mr Zhang in around May 2018.

6. [51]

   The Plaintiffs pleaded that this agreement included the following express terms (Amended Statement of Claim (ASC), [29]):

   1. (1)

      Firmtech was to be established to pursue an aluminium windows and doors business;

   2. (2)

      Mr Xu would contribute at least $500,000 in capital to establish Firmtech’s Windows and Doors Business;

   3. (3)

      Mr Xu would advance up to $1,000,000 in further funds to Firmtech if required, though such amounts would be by way of a loan to be repaid;

   4. (4)

      Firmtech would have a 50/50 share structure, with Mr Xu holding 50% of the shares and Mr Zhang holding 50% of the shares;

   5. (5)

      Mr Xu and Mr Zhang would be the directors of Firmtech;

   6. (6)

      Ms Xie would be the General Manager and would handle quotations and sales;

   7. (7)

      Mr Zhang would run the factory and would handle manufacturing and installation of aluminium and glass products on site;

   8. (8)

      if a dispute arose about the manufacturing, production or the technical side of the business, Mr Xu would defer to Mr Zhang, and if a dispute arose about finances, Mr Zhang would defer to Mr Xu; and

   9. (9)

      Ms Xie would take all steps necessary to ensure that Aluminum did not operate a business in competition with Firmtech.

7. [52]

   In closing submissions, the only express terms of the agreement which were disputed by Ms Xie and Mr Zhang were those in subparagraphs (2), (3) and (9) above.

8. [53]

   As regards subparagraphs (2) and (3), Ms Xie and Mr Zhang contended that Mr Xu’s initial capital contribution of $500,000 was to be non-refundable, and that Mr Xu was required to provide further cash flow injections of up to $1.5m, rather than $1m (for a total investment of $2m). I do not need to resolve these issues. That is because it is common ground that, by 30 January 2021, it was agreed that Mr Xu should be repaid all of the money which he had invested in Firmtech, including both the initial capital contribution and the subsequent cash flow injections. Further, there is no claim that Mr Xu breached any obligation to provide $1.5m of cash flow injections to Firmtech (although Mr Zhang and Ms Xie rely on the fact that Mr Xu ceased providing significant cash flow injections to Firmtech in 2020 as one of the reasons why they decided that they did not want to continue in business with Mr Xu).

9. [54]

   As regards subparagraph (9), the dispute regarding whether there was an agreement that Aluminum would not compete with Firmtech is more significant for the resolution of the matters at issue in the Principal Proceeding.

10. [55]

    Mr Xu gave evidence that he had a conversation in around May 2018 to the following effect:

11. [56]

    Ms Xie denied Mr Xu’s account, and gave evidence that she had a discussion with him to the following effect:

12. [57]

    Neither Mr Xu nor Ms Xie identified Mr Zhang as having been a party to this conversation. However, Mr Zhang deposed, that “Kevin [Xu] informed me that Yan [Xie] could keep going with her company” and “it was decided that she could keep it”. Mr Zhang’s evidence provides no detail of the terms of any discussion and merely asserts, in conclusory terms, that an agreement was reached that Aluminum could “keep going”. It is of limited weight.

13. [58]

    Any such discussion took place in Mandarin and occurred over six years ago. As I have explained above, it is necessary, given the passage of time since the disputed conversation, to assess the conflicting evidence of the substance of this conversation in light of the contemporaneous documentary evidence and having regard to the inherent likelihood of the competing versions.

14. [59]

    On 15 May 2018, Ms Xie and Mr Xu exchanged the following WeChat messages on the Group Chat. This exchange occurred only days before the incorporation of Firmtech. Given the importance of these messages to the dispute, they are set out at some length below:

15. [60]

    In this exchange, Ms Xie and Mr Xu were discussing the corporate vehicle and trading name through which they would conduct their proposed Windows and Doors Business. Ms Xie explained that she already had a company that was registered in 2017, Aluminum. From the terms of the messages set out above, it appears that this was the first time that Ms Xie had disclosed this fact to Mr Xu. Ms Xie disclosed that she was the sole shareholder of Aluminum (“I got 100% of it”); and that it had made a “small income” last year. (As noted above, Aluminum reported income of only $3,000 in FY2018).

16. [61]

    Ms Xie offered to “share” this company if Mr Xu thought that “the name is good”. Mr Xu was initially attracted to this idea, agreeing that it is “a good name” and stating that Ms Xie could “use it if you want”. However, when Ms Xie suggested “Firmtech” as an alternative, Mr Xu indicated that he would like to proceed with Firmtech as the trading name.

17. [62]

    Ms Xie proposed that Mr Xu could use “an accountant” to “change it [the name of the company, Aluminum] to whatever you want”. However, Mr Xu suggested that Ms Xie should “keep” this corporate entity “for the family in the future”. Ms Xie indicated that she did not think she needed a company for her family’s affairs (“No use for family”), but Mr Xu advised that she would find it “useful” to have such a company “in the future”, explaining that he had a company which he used for his own family affairs.

18. [63]

    Accordingly, it was agreed that they would establish a new company called “Firmtech Aluminium Pty Ltd”. They were aware when taking this step that the only difference between the proposed company name and Ms Xie’s existing company was that the name of the latter was “missing an i” from the word “Aluminium”. In agreeing to use “Firmtech Aluminium”, they were also aware that each of the alternate spellings “Aluminium” and “Aluminum” meant “the same thing”, and that there was a potential for confusion between the words (with Ms Xie indicating that she actually wanted the name “Aluminium” but her accountant “missed the extra i”). Ms Xie deposed that it was “often the case” that Aluminum was referred to as “Firmtech Aluminium” from the time of its incorporation; and Mr Zhang deposed that the company Aluminum was “regularly spelled as ‘Aluminium’ by our customers and suppliers”.

19. [64]

    On 18 May 2018, shortly after the exchange of WeChat messages set out above, Firmtech was incorporated.

20. [65]

    Mr Xu was not, when referring to Aluminum being used “for the family” in the “future”, suggesting that, from May 2018 onwards, Aluminum could be used to operate a business which competed with Firmtech in the same industry, for the benefit of Ms Xie and her family. His remarks instead conveyed an understanding on his part that Aluminum would be used for some other, personal business.

21. [66]

    The substance of the pre-incorporation agreement between Mr Xu, Ms Xie and Mr Zhang was that, in return for Mr Xu contributing his capital to the establishment of Firmtech’s Windows and Doors Business, Ms Xie and Mr Zhang would contribute their skills, experience, equipment, employees, clients and some existing projects. There is no rational reason why Mr Xu would have agreed to contribute total capital of $1.5m (or, on the Zhang/Xie Parties’ case, $2m) to a joint enterprise with Ms Xie and Mr Zhang in which he had a 50% interest, while leaving Ms Xie and Mr Zhang free, if they chose, to perform business through a competitor in the same industry (in which Mr Xu had no interest). Any such arrangement would have been inconsistent with, and undermine, the joint endeavour which the parties were seeking to establish.

22. [67]

    Significantly, Ms Xie did not, in her evidence, suggest that she said anything to Mr Xu to the effect that she would continue to use Aluminum to perform work in the aluminium windows and doors industry in competition with Firmtech, or that Mr Xu said anything to indicate that he agreed to this occurring. Instead, she gave the following evidence as to what was not discussed between her and Mr Xu at this time: “at no time was it agreed with Kevin that Aluminum would cease taking jobs”.

23. [68]

    As outlined above, Mr Xu pleaded that it an express contractual term of his pre-incorporation agreement with Ms Xie and Mr Zhang that “Ms Xie would take all steps necessary to ensure that Aluminum did not operate a business in competition with Firmtech”.

24. [69]

    In circumstances where there was a lengthy exchange of messages between the parties shortly prior to incorporation, and where those messages are in evidence (with certified translations), I have placed little weight on the respective evidence of Mr Xu and Ms Xie regarding their recollections, in English, of the substance of a conversation, in Mandarin, about the same subject matter more than six years ago, which are given largely in conclusory terms regarding the effect of the agreement reached between them.

25. [70]

    Accordingly, I have determined the issue whether there was a contractual obligation in the terms pleaded by reference to the contemporaneous WeChat messages set out above, which provide evidence of the parties’ contemporaneous communications about Aluminum shortly prior to the establishment of Firmtech.

26. [71]

    In the course of those messages, Mr Xu did not require, as a condition of agreeing to establish Firmtech, that Ms Xie promise not to operate a business through Aluminum in competition with Firmtech. A term to that effect was not proposed, or accepted.

27. [72]

    Further, an exchange of WeChat messages in the Group Chat, on the same date as those set out above, appeared to envisage that in some circumstances Aluminum and Firmtech might issue quotations for the same work:

28. [73]

    For those reasons, I am not satisfied that there was an express contractual obligation to the effect that Ms Xie would take all steps necessary to ensure that Aluminum did not operate a business in competition with Firmtech.

29. [74]

    It does not, however, follow that Ms Xie was free to compete with Firmtech, through Aluminum. The pre-incorporation agreement included terms to the effect that Ms Xie would become General Manager of Firmtech, Mr Zhang would become a director of Firmtech, and that Ms Xie and Mr Zhang would be responsible for running its Windows and Doors Business. Those terms were implemented. Accordingly, from the time of the incorporation of Firmtech and the establishment of its Windows and Doors Business, each of Ms Xie and Mr Zhang owed duties, inter alia, not to improperly use their position to gain an advantage for themselves or someone else, or to cause detriment to Firmtech (s 182 of the Act).

30. [75]

    In closing address, the Zhang/Xie Parties confirmed that they did not advance a submission that, from the time of incorporation, they were “free to use Aluminum to compete with Firmtech”: “All we say is that there was no requirement for us to close it down, and that it was available to be used in appropriate circumstances”. As regards the “appropriate circumstances”, the Zhang/Xie Parties accepted that, if Aluminum was “to be used” in the future for performing work in the same industry as Firmtech, it could only be so used if Ms Xie disclosed to Mr Xu the work which she proposed undertaking through Aluminum and obtained his consent (and thereby Firmtech’s consent) to that work being performed by Aluminum rather than Firmtech.

31. [76]

    As outlined below, Aluminum did in fact subsequently perform work in the aluminium windows and doors industry. Ms Xie and Mr Zhang contended, and Mr Xu denied, that this work was performed with Mr Xu’s knowledge and consent. It is this dispute about whether or not such consent was, after Firmtech’s incorporation, sought or obtained which is key to the resolution of the issues in the Principal Proceeding.

Performance of Projects by Aluminum in 2019 and 2020

1. [77]

   Firmtech commenced business in around June 2018, operating from a factory at 6 Marigold Street, Revesby, New South Wales (Revesby Factory). The Revesby Factory was leased by Firmtech for a period of five years, and each of Mr Zhang and Mr Xu guaranteed Firmtech’s obligations under the lease.

2. [78]

   Ms Xie acted as the General Manager of Firmtech from the time that it commenced business.

3. [79]

   A brochure was prepared for Firmtech around the time that it started its operations. This brochure referred to each of Mr Xu and Ms Xie as a “contact person” and identified Ms Xie as General Manager. It stated that “Firmtech Aluminium has been working closely with various construction companies in the recent years”, and set out details of various projects. The particular projects which were identified were ones on which Ms Xie and Mr Zhang had performed work through other entities. This reflected the fact that Mr Zhang and Ms Xie were contributing their skills, experience and contacts, as well as some existing projects, to the establishment of Firmtech’s Windows and Doors Business.

4. [80]

   Firmtech purchased pre-cast aluminium extrusions which were cut and assembled, with glass then being added. It sub-contracted out the process of installing the windows and doors to third parties. It was a relatively small operation. In addition to Ms Xie and Mr Zhang, there were around three to four employees in the office, and another two or three on the floor of the factory.

5. [81]

   It was common ground that there is usually a significant lag time in the aluminium windows and doors industry between a company being invited to tender for a project, and the company performing the work and receiving income. Despite that being the case, Firmtech enjoyed significant success in its first full financial year of operation, being the year ending 30 June 2019 (FY2019), reporting revenue of around $5.874m and a profit before tax of around $2.198m.

6. [82]

   This financial success in Firmtech’s first year of operation was due, in part, to the fact that Ms Xie and Mr Zhang provided Firmtech, at its establishment, with projects and opportunities which they had previously been pursuing through other entities.

7. [83]

   It was also due, in part, to Mr Xu providing significant moneys to finance Firmtech’s operations in this start-up period. Between May 2018 and February 2020, Mr Xu advanced more than $1m for the purpose of Firmtech’s business.

8. [84]

   Mr Xu was responsible for managing the finances of Firmtech. At first, this included entering financial data into Firmtech’s Quickbooks system. However, Firmtech subsequently changed to a MYOB system and employed a bookkeeper, Ms Sandy Liu, who took over the role of entering data into that system. Ms Liu reported to Ms Xie.

9. [85]

   Mr Xu was also responsible for managing Firmtech’s construction business. This business involved the development of a number of properties by Firmtech, and was separate from Firmtech’s Windows and Doors Business, which involved supplying aluminium windows and doors to property developments being undertaken by third parties.

10. [86]

    In 2019, Aluminum tendered for a substantial project in relation to a multi-unit mixed use development named “S131 the Parade”, which was to be constructed at 51 Constitution Avenue, Campbell, in the Australian Capital Territory. This was referred to as the “Campbell 5 Project”. Aluminum was awarded the contract for this project in 2020. I set out below the relevant timeline, which is largely documentary and was not in dispute, before considering the two critical issues which were in contest: namely, whether Mr Xu was informed about, and consented to, Aluminum performing the Campbell 5 Project; and whether Aluminum engaged Firmtech as its subcontractor in relation to this project.

11. [87]

    On 24 May 2019, Icon SI (Aust) Pty Ltd issued a surveying scope of works for the Campbell 5 Project. In cross-examination, Mr Zhang accepted that this scope of works was provided to Firmtech, so that Firmtech could tender for the project. He also agreed that, at this time, he considered that Icon could be a valuable source of work for Firmtech.

12. [88]

    On 20 September 2019, Ms Xie submitted a quotation for the Campbell 5 Project on behalf of Aluminum, for a “Total Lumpsum Price (Excl. GST)” of $2.55m. Ms Xie specified Aluminum’s address as the Revesby Factory, and provided “firmtechaluminium@gmail.com” as the contact email address. Aluminum’s quotation used the Firmtech logo. Mr Zhang acknowledged that he was aware at this time that Ms Xie was using the Firmtech logo when issuing documents for Aluminum.

13. [89]

    On 25 September 2019, a Senior Design Manager at Firmtech, Ms Bhawna Pargain, sent an email to Mr Zhang (which was addressed to Ms Xie) attaching design plans for the Campbell 5 Project. In cross-examination, Mr Zhang confirmed that Ms Pargain was an employee of Firmtech, not of Aluminum. Mr Zhang also accepted that he was intimately involved in the work undertaken by Aluminum in respect of the Campbell 5 Project.

14. [90]

    On 8 January 2020, Ms Xie issued, on behalf of Aluminum, an updated quotation for the Campbell 5 Project, for a total lump sum price of $3.1m (excluding goods and services tax (GST)). Again, this was issued using the Firmtech logo, and specifying the Revesby Factory as Aluminum’s address. Whereas the initial quotation was stated to be issued on the “Firmtech Aluminium Term and Conditions”, this revised quotation was stated to be issued on the “Firmtech Aluminum Term and Conditions” (emphasis added).

15. [91]

    On 23 January 2020, Ms Xie issued, on behalf of Aluminum, a further updated quotation for the Campbell 5 Project, for the sum of $3.15m (excluding GST).

16. [92]

    On 31 January 2020, Icon and Aluminum entered into a Major Works Trade Contract for the Campbell 5 Project for $3.15m plus GST. This contract was executed by Ms Xie on behalf of Aluminum. Mr Zhang confirmed in cross-examination that he was aware, at the time, that Ms Xie had signed this contract.

17. [93]

    On 18 March 2020, Mr Kane Toscano, who was a contractor regularly engaged by Firmtech, sent to Mr Zhang (copied to Ms Xie) an email which he had drafted in Mr Zhang’s name, responding to various queries which had been raised by Icon in relation to the Campbell 5 Project.

18. [94]

    On 18 June 2020, Ms Xie issued, on behalf of Aluminum, a further quotation in respect of the Campbell 5 Project for the supply and installation of galvanised steel balustrades, ground floor louvres and roof condenser louvres, for a sum of $658,400 (excluding GST). This quotation was for work which was additional to the work that was the subject of the January 2020 contract, such that the total value of work on the Campbell 5 Project was around $3.8m (excluding GST).

19. [95]

    On 26 June 2020, Mr Toscano sent an email to Mr Zhang and Ms Xie attaching design plans relating to the Campbell 5 Project. In cross-examination, Mr Zhang acknowledged that he was fully apprised of what was occurring in respect of the Campbell 5 Project during what he described as “the contract stage”.

20. [96]

    On 14 July 2020, Icon approved Aluminum’s first payment claim in respect of the Campbell 5 Project, in a gross amount of $346,502.07 (including GST). This payment claim was accompanied by a Subcontractor’s Statement which Ms Xie signed on behalf of Aluminum on 25 June 2020, and a Statutory Declaration signed by Mr Zhang on 13 July 2020. Mr Zhang stated that he was “the Manager of [Aluminum] (Subcontractor) in relation to the Works carried out by us under the Agreement between Icon”, and confirmed that “all amounts due by us to our subcontractors or employees in respect of the Works under the Agreement have been paid”.

21. [97]

    The above events took place before there was, on the evidence of all parties, any discussion about closing down Firmtech. It is plain from these steps that a valuable business opportunity was taken up by Aluminum, for work of a type that was able to be performed by Firmtech. The critical issue is whether Mr Xu consented to this arrangement.

22. [98]

    Mr Xu deposed that it was his understanding that Firmtech had tendered for work on the Campbell 5 Project. He gave evidence that in early 2020 he saw a customer representative come to the Revesby Factory, and when he asked Ms Xie who this was, Ms Xie said: “That guy is from JWLand. He is here for Campbell 5”. JWLand Constructions Pty Ltd was a Canberra-based developer. Mr Xu also gave evidence that he asked Mr Zhang later in 2020 “What is happening with Campbell 5?”, and that Mr Zhang responded: “That is in our pipeline.”

23. [99]

    Mr Xu further deposed that:

    1. (1)

       in mid-2020, he asked Ms Xie how much the Campbell 5 Project was worth, and was told that it was around “$2.5 mil excluding GST”; and

    2. (2)

       later in 2020, Ms Xie asked Mr Xu for further funds for Firmtech, explaining that these were required because: “We’re getting some shipping containers in. We need to pay the shipping container company for the Campbell 5 project.”

24. [100]

    Mr Xu gave evidence that some time after the latter conversation, he noticed, when reviewing Firmtech’s bank statements, that some payments into its account were being made by Aluminum which were said to be in respect of the Campbell 5 Project. He gave evidence that, when he asked Firmtech’s bookkeeper, Ms Liu, about these payments, he was told that Firmtech had not issued any invoices to Aluminum, and so she could not match deposits to invoices, telling him: “Xie is in charge of [Aluminum]. I don’t have any control over this”.

25. [101]

    Mr Xu’s evidence of these various conversations about the Campbell 5 Project was not challenged in cross-examination.

26. [102]

    Mr Xu deposed that, despite his enquiries, he never received any explanation for why Firmtech was receiving payments from Aluminum for the Campbell 5 Project.

27. [103]

    For their part, each of Ms Xie and Mr Zhang deposed that they had an agreement with Mr Xu that Aluminum would perform the Campbell 5 Project and would subcontract work on that project to Firmtech.

28. [104]

    In her first affidavit of 8 August 2022, Ms Xie deposed that she recalled “various conversations” with Mr Xu from “mid-2019 to early 2020” where words to the following effect were said:

29. [105]

    On this account, there was no disclosure to Mr Xu of the identity of the developer, the identity of the project, the value of the project and the expected profit to Aluminum from the project. Despite not being aware of any of those matters, Mr Xu is said to have immediately agreed to Ms Xie’s proposal (“That’s good”).

30. [106]

    In a subsequent affidavit of 25 March 2024, Ms Xie gave evidence of a conversation with Mr Xu “in 2019”. Ms Xie deposed that, in the course of this conversation, statements were made to the following effect:

31. [107]

    Ms Xie further deposed that in around March 2020, Aluminum was awarded the contract for the Campbell 5 Project, and that: “From then onwards I agreed to have Aluminum subcontract to Firmtech the supply and installation of aluminium windows and doors”.

32. [108]

    In his affidavit of 24 March 2024, Mr Zhang deposed to a conversation in “around late 2019” which he had with Mr Xu and Ms Xie, to the following effect:

33. [109]

    In a reply affidavit, Mr Xu denied each of those conversations.

34. [110]

    One oddity about the affidavit evidence of Ms Xie and Mr Zhang is that each asserted that there was an agreement with Mr Xu that Aluminum would “subcontract” work on the Campbell 5 Project to Firmtech, but neither gave any evidence of a discussion with Mr Xu about the terms of this subcontract.

35. [111]

    No such subcontract is referred to in any contemporaneous document, including any of the WeChat messages exchanged between the parties.

36. [112]

    In cross-examination, each of Ms Xie and Mr Zhang said that the subcontract was oral, not written, but gave differing evidence as to its terms. Mr Zhang gave evidence that the subcontract was on a “cost basis”. However, when Ms Xie was asked whether the subcontract arrangement was on the basis that “Firmtech was providing its services at cost”, she responded “We didn’t discuss about it – about this point.”

37. [113]

    Each version has its own difficulties.

38. [114]

    If there was no discussion about the basis on which Firmtech was providing services to Aluminum as a “subcontractor”, and in particular, about whether those services were to be provided “at cost” or on some other basis, then it is difficult to see how there could be any subcontract, since price is an essential element of any such agreement.

39. [115]

    On the other hand, it is difficult to see any rational commercial basis on which Mr Xu would agree to an arrangement which involved Firmtech providing services to Aluminum at cost, since the effect of such an arrangement would be that, for a substantial contract worth several million dollars, all of the profit was earned by Aluminum (in which Mr Xu had no interest), and none was earned by Firmtech (in which he had a 50% interest).

40. [116]

    Moreover, at the time that the Campbell 5 Project was undertaken, Aluminum did not have any premises, employees or equipment. In performing the project, Aluminum used the Revesby Factory, the rent for which was paid by Firmtech; Firmtech’s employees, whose salaries were paid by Firmtech; and Firmtech’s equipment, which was operated and maintained at Firmtech’s cost. There was no rational reason for Mr Xu to agree to an arrangement whereby Aluminum would use Firmtech’s premises, staff and equipment to perform a project worth several million dollars, with the profits being wholly retained by Aluminum.

41. [117]

    It is also inherently improbable that Mr Xu would have declined the opportunity for Firmtech to perform the Campbell 5 Project and earn a significant profit, on the basis that he did not want to be “involved” in the Canberra market, and at the same time have agreed for Firmtech to be a subcontractor on precisely the same project, in the Canberra market, at cost (and thereby not make any profit at all).

42. [118]

    Further, Mr Zhang’s evidence that Mr Xu said, in late 2019, that he did not want Firmtech to be “involved in the Canberra market” is at odds with the following contemporaneous documentary material.

    1. (1)

       In March 2019, Firmtech entered into a contract with Hindmarsh Construction Australia Pty Ltd to supply doors and windows to an apartment development at Constitution Avenue, Campbell, ACT. By undertaking this work, Firmtech was, in 2019, working on a project located in the same suburb and on the same street as the Campbell 5 Project.

    2. (2)

       In June 2019, Firmtech performed work for Icon, involving the supply of aluminium windows and doors to RSL Lifecare at Kaleen in the ACT, and issued invoices for this work. Mr Xu gave unchallenged evidence that he had enthusiastically encouraged Firmtech to get involved in the RSL Lifecare project, because he “considered this to be a fantastic opportunity to work with a major company” (namely, Icon). By undertaking this work, Firmtech was, during 2019, performing work on a project in the ACT for the same entity that was undertaking the Campbell 5 Project.

    3. (3)

       On 24 July 2019, Mr Simon Skillicorn, who was an employee of Firmtech, sent an email to a representative of Meriton (copied to Ms Xie and Mr Zhang), stating: “please keep us in mind for Meriton’s Canberra Project as we are already working in Canberra and have a large number of installers down there”. Mr Zhang agreed in cross-examination that “we” and “us” were references to Firmtech, that Mr Skillicorn was engaging with Meriton in order to provide opportunities for Firmtech, and that in doing so, Mr Skillicorn was acting at the direction of Mr Zhang in his capacity as a director of Firmtech.

    4. (4)

       On 25 July 2019, Ms Xie issued, on behalf of Firmtech, a quotation for the supply and installation of aluminium windows and doors for Queanbeyan Police Station.

    5. (5)

       In July 2019, Icon contacted Firmtech about the construction of a housing development for people with an intellectual disability in Phillip in the ACT. Icon was providing its time and resources on this project free of charge, and asked if Firmtech would like to be involved. On 1 August 2019, Mr Skillicorn of Firmtech sent an email in response, copied to Ms Xie and Mr Zhang, in which he stated that Firmtech would be “delighted to be involved”, and would propose a price “lower than our costs”, adding: “we look forward to discussing this project and many more large projects with the Icon team”. This exchange reveals that, in the second half of 2019, Firmtech was willing to perform work for Icon in the ACT at a price lower than cost. It can be inferred that it was willing to so do because it was keen to earn profits from other projects with the same developer.

43. [119]

    In addition, Mr Xu gave unchallenged evidence that in about 2019 he discussed with Ms Xie and Mr Zhang a plan to buy a house in Canberra, which would be available for the use of Firmtech’s employees and contractors who were performing work in the ACT, and that he personally visited Canberra to inspect properties for this purpose.

44. [120]

    Having regard to those matters, I do not accept Mr Zhang’s evidence that Mr Xu expressed any unwillingness for Firmtech to be involved in the Canberra market, or that Mr Xu agreed, for this reason, to the Campbell 5 Project being performed by Aluminum.

45. [121]

    Significantly, it was not put to Mr Xu in cross-examination that he agreed to a costs only subcontract. Nor was it put to Mr Xu that he was aware of the total value of the Campbell 5 contract from Aluminum’s perspective, or the proportion of the total contract price that was paid to Firmtech.

46. [122]

    In May 2021, the following WeChat messages, relating to the Campbell 5 Project, were exchanged on the Group Chat:

47. [123]

    In this exchange, Ms Xie substantially understated both the price of the Campbell 5 Project and the square metres of that project (which Mr Xu was using to estimate price). As set out above, the initial quotation was $2.55m (excluding GST), which is close to the figure stated by Ms Xie, but this was later revised substantially upwards. The total value of the Campbell 5 Project for Aluminum was around $3.8m plus GST. Further, the project was said to be in the region of 12,000 square metres in an email sent by Mr Toscano in June 2021. When taken to this email in cross-examination, Ms Xie suggested that the actual size of the project was around 9,000 sqm, with the “windows and doors” being 6,500 sqm and the remainder being “cladding”. There was no documentary support identified for the different figures provided by Ms Xie.

48. [124]

    When asked about this WeChat exchange, Ms Xie and Mr Zhang agreed that they never told Mr Xu about the total value of the Campbell 5 Project for Aluminum, but said that this exchange of messages on the Group Chat was referring to the value of the subcontract between Aluminum and Firmtech.

49. [125]

    The Zhang/Xie Parties pointed out in closing submissions that Firmtech’s bank statements revealed that, between August 2020 and March 2021, Firmtech received $2,119,999.55 from Aluminum in respect of the Campbell 5 Project. This was said to be consistent with their evidence that a subcontract existed.

50. [126]

    However, the WeChat exchange set out above makes no reference to any subcontract. Nor is any subcontract referred to in any other contemporaneous document. Further, Ms Xie’s message “we can only get 2.2” suggests that what is being discussed is what “we” (that is, Firmtech) can “get” from Icon in respect of the Campbell 5 Project. The message would not make sense if Ms Xie was talking to Mr Xu about a contract in respect of which they stood on either side (namely, a contract between Firmtech and Aluminum). Further, Mr Xu’s questions about revenue and costs on the Campbell 5 Project suggest that he expected Firmtech to make a profit from the Campbell 5 Project, rather than Firmtech simply having an “at cost” arrangement with Aluminum.

51. [127]

    Counsel for the Zhang/Xie Parties submitted that:

52. [128]

    Mr Xu was aware that work was being performed at Firmtech’s premises on the Campbell 5 Project, and he had been told by Ms Xie that the total value of this project was around $2.2m. In those circumstances, Mr Xu would have expected to see around $2.2m being deposited into Firmtech’s account. In that respect, the payments into Firmtech’s account confirmed what he had been told. I accept that those payments refer to Aluminum, as well as to the Campbell 5 Project. However, that does not amount to any disclosure to Mr Xu regarding Aluminum’s role in that project, or a sufficient basis to conclude that Mr Zhang and Ms Xie were frank with Mr Xu regarding those matters. In light of the evidence outlined above, and in particular the incomplete and inaccurate statements made to Mr Xu about the Campbell 5 Project in the WeChat messages of May 2021, I accept Mr Xu’s evidence that when he discovered that these payments were being made by Aluminum, and sought to know why, he was not provided with an explanation.

53. [129]

    For the reasons set out above, I accept Mr Xu’s evidence that he did not have any discussion with Ms Xie and Mr Zhang in which he indicated that he did not want Firmtech to take up the Campbell 5 Project because he did not want Firmtech to be “involved in the Canberra market”. Nor did he have any conversation with them in which he agreed to this project being performed by Aluminum rather than Firmtech, or in which he agreed to Firmtech working on the project as Aluminum’s subcontractor “at cost”.

54. [130]

    Even if I am wrong in this conclusion, and the conversations occurred in the terms to which Mr Zhang and Ms Xie deposed, it is notable that on their own evidence, there was no disclosure to Mr Xu of the value of the Campbell 5 Project, or the anticipated profit margin for Aluminum. Those are matters which would be critical to any assertion that Mr Xu, and therefore Firmtech, gave informed consent to this project being performed by Aluminum.

55. [131]

    In around late 2019, Aluminum entered into a contract to perform work on a project involving the construction of around 600 apartments at 255-259 Northbourne Avenue, Lyneham, ACT, called “Embark on Northbourne”. This project was being undertaken by JWLand as developer and Icon as project manager.

56. [132]

    I set out below the relevant timeline of events, as disclosed by the contemporaneous documents, and then address the issue whether Mr Xu consented to this work being performed by Aluminum.

57. [133]

    On 16 September 2019, a representative of Icon sent an email to Ms Xie, inviting the submission of a quotation for the installation of sunscreens and other metalwork for Stage 1 of the Embark on Northbourne project. Stage 1 consisted of around 160 apartments.

58. [134]

    On 22 September 2019, Ms Xie issued, on behalf of Firmtech, a quotation for sunscreens, for a total lump sum price of $144,213 (excluding GST).

59. [135]

    On around 27 September 2019, drawings were prepared for this project by Mr Cao, an employee of Firmtech. Those drawings included Firmtech’s name and logo.

60. [136]

    On 29 September 2019, Ms Xie issued, on behalf of Firmtech, a further quotation for Embark on Northbourne, in relation to balustrades and privacy screens, for a total lump sum price of $374,518 (excluding GST).

61. [137]

    On 30 September 2019, a document headed “Tender Interview - Embark Stage 1” was completed, and was signed by each of Ms Xie and Mr Zhang. This document recorded the name of the tenderer as Firmtech, but included the ABN of each of Firmtech and Aluminum. This document also recorded the number of Firmtech’s building licence. (Aluminum did not obtain such a licence until April 2021.)

62. [138]

    It is likely that Ms Xie included the ABN of each of Firmtech and Aluminum on this document because she was, at this time, considering whether to perform the work through Firmtech or Aluminum. That inference is supported by the fact that, as outlined below, Ms Xie subsequently took steps to divert this business opportunity from Firmtech to Aluminum.

63. [139]

    On 2 October 2019, Ms Xie issued, on behalf of Firmtech, two revised quotations for the Embark on Northbourne Project, one relating to the provision of sunscreens in the amount of $264,913 (excluding GST), and the other relating to balustrades and privacy screens in the amount of $457,570 (excluding GST).

64. [140]

    Additional quotations were issued by Ms Xie, on behalf of Firmtech, for various aspects of the Embark on Northbourne Project:

    1. (1)

       on 26 November 2019 for work in respect of the car park, in the amount of $184,712.43 (excluding GST);

    2. (2)

       on 27 November 2019, for balustrades, handrails and associated works, in the amount of $522,466 (excluding GST); and

    3. (3)

       on 21 December 2019, for provision of sunscreens, in the amount of $201,013 (excluding GST).

65. [141]

    Despite each of the above quotations having been issued by Firmtech, it was Aluminum, rather than Firmtech, which entered into a contract with Icon for Stage 1 of the Embark on Northbourne Project. This contract was executed by Ms Xie in her capacity as the director of Aluminum, and was specified to have a commencement date of 5 December 2019. The contract gave Aluminum’s address as the Revesby Factory. One oddity is that the contract bears, on its front page, the name of Firmtech. However, it is common ground that this was an error. The Schedule specifies Aluminum as the relevant subcontractor, and Aluminum’s ABN is set out on the execution page which Ms Xie signed. Mr Zhang accepted in cross-examination that he was aware, in around January 2020, that Ms Xie had entered into this contract on behalf of Aluminum.

66. [142]

    On around 15 February 2020, Mr Cao prepared drawings in relation to the Embark on Northbourne Project. These drawings, unlike those which he had prepared earlier, included the name of Aluminum (rather than Firmtech) as the façade subcontractor.

67. [143]

    On 18 May 2020 and on 11 July 2020, Mr Zhang signed installation certificates for the Embark on Northbourne Project on behalf of Aluminum. Mr Zhang said in cross-examination that his role at Aluminum at this time was Quality Supervisor. Each of those documents gave Aluminum’s address as the Revesby Factory, and each referred to the number of Firmtech’s builder’s licence.

68. [144]

    On 25 June 2020, Aluminum issued two invoices to Icon for a total of $426,076 (excluding GST).

69. [145]

    All of the above steps were taken before there was, on the evidence of all parties, any discussion about closing down Firmtech.

70. [146]

    The affidavits of Ms Xie and Mr Zhang did not refer to any discussion with Mr Xu about this project, or give any evidence to the effect that Mr Xu consented to this project being performed by Aluminum.

71. [147]

    As I have noted above, Mr Zhang gave evidence that Mr Xu had expressed, in general terms, a desire for Firmtech not to be involved in the Canberra market. However, I have found that no such statement was made and, in any case, there was no suggestion in the affidavit evidence that Mr Xu was informed, in the course of any such discussion or subsequently, about the opportunity to take on the Embark on Northbourne Project, for which Firmtech had submitted several quotations.

72. [148]

    When asked in cross-examination about the contract for the Embark on Northbourne Project which was signed by Ms Xie on behalf of Aluminum, Mr Zhang volunteered evidence that there was some arrangement reached with Mr Xu in relation to this contract, stating as follows:

73. [149]

    Mr Zhang agreed that insofar as there was any agreement between himself, Ms Xie and Mr Xu about this project, his evidence regarding that agreement was set out in his affidavit. However, as noted above, his affidavit is silent in this regard.

74. [150]

    Similarly, when Ms Xie was asked in cross-examination about her discussions with Mr Xu concerning the Campbell 5 Project, and in particular whether she had told Mr Xu that it would be good for Firmtech to win this project, she volunteered that there was an agreement between herself and Mr Xu to the effect that any contracts involving JWLand (which would include the Embark on Northbourne Project) should be performed by Aluminum, rather than Firmtech:

75. [151]

    There is no reference in any of the affidavits of Mr Zhang or Ms Xie to an agreement having been reached with Mr Xu to the effect that any contracts with JWLand would be performed by Aluminum rather than Firmtech. There is no contemporaneous document, which was sent or received by Mr Xu (such as a WeChat message) referring to any such arrangement. There is no contemporaneous document referring to any proposal for JWLand to invest in Firmtech.

76. [152]

    Further, it was not suggested to Mr Xu in cross-examination that he had agreed to an arrangement whereby Aluminum, rather than Firmtech, could perform any work for JWLand.

77. [153]

    It is inherently improbable that Mr Xu would have agreed to such an arrangement. There was no rational reason why he would agree to contracts with JWLand, whatever their size, nature, value, or profit margin, being performed by Aluminum (in which he had no interest) rather than by Firmtech (in which he had a 50% interest).

78. [154]

    Having regard to those matters, I am not satisfied that there was any such arrangement with Mr Xu regarding projects for JWLand. It follows that there was no agreement by Mr Xu for Aluminum to perform the Embark on Northbourne Project, and no disclosure to him that Aluminum was performing this work.

79. [155]

    In 2020, Aluminum also sought to obtain work on the “Founders Lane Project” which was being constructed by JWLand at Braddon in the ACT. In February 2021, Logikal entered into a contract for this work.

80. [156]

    I set out below the relevant timeline of events, as disclosed by the contemporaneous documents, and then address the issue whether Mr Xu consented to this work being performed by Aluminum or Logikal.

81. [157]

    On 5 September 2019, a representative of JWLand sent an email to Ms Xie and Mr Zhang (at their respective Firmtech email addresses) forwarding links to information regarding Stages 3 and 4 of the Founders Lane Project, and seeking a “feasibility study and rough cost estimate”. Each of Mr Zhang and Ms Xie agreed, in cross-examination, that this email was sent to them in their capacities as, respectively, director and General Manager of Firmtech.

82. [158]

    On 11 September 2019, Ms Pargain, who was Senior Design Manager for Firmtech, sent an email to Ms Xie setting out the drawings and reports which would be required for the “Stage 3 Glazed Door and Window package” for the Founders Lane Project.

83. [159]

    On 7 July 2020, Ms Xie issued, on behalf of Aluminum, a quotation to JWLand for the Founders Lane Project. The quotation was for metalwork and balustrades, and for doors and windows, for a total amount of more than $6.659m (excluding GST). In their submissions, Mr Xu and Firmtech pointed out that the value of this quotation was almost double the value of the largest contract which was performed by Firmtech’s Windows and Doors Business.

84. [160]

    In cross-examination, Ms Xie accepted that Firmtech could do works of the type specified in this quotation, and Mr Zhang confirmed that he was aware that Aluminum had sought to obtain this project.

85. [161]

    All of the steps set out above were taken prior to their being (on the evidence of all parties) any discussion about closing down Firmtech, or about Mr Zhang and Ms Xie leaving Firmtech.

86. [162]

    On 10 January 2021, Ms Xie issued, on behalf of Logikal, a revised quotation in respect of the metalwork and balustrade component of the work at the Founders Lane Project in the amount of around $1.485m (excluding GST). Logikal’s address was stated to be the Revesby Factory. Mr Zhang confirmed in cross-examination that he was aware that this quotation was issued by Logikal.

87. [163]

    Logikal had been incorporated on 18 December 2019. Ms Xie was its sole director and shareholder.

88. [164]

    On around 4 February 2021, JWLand as Construction Manager and Logikal as Subcontractor entered into a Major Works Subcontract in relation to the Founders Lane project. Ms Xie executed this contract in her capacity as director of Logikal. The Contract Sum was specified to be $1,441,100.30 (excluding GST).

89. [165]

    The affidavits of Ms Xie and Mr Zhang do not refer to any discussion with Mr Xu about the Founders Lane Project.

90. [166]

    In closing submissions, Ms Xie and Mr Zhang submitted that this project was covered by the “special arrangement” whereby Mr Xu had agreed with them that any work for JWLand could be performed by Aluminum. For reasons given above, I am not satisfied that there was any such arrangement.

91. [167]

    It follows that there was no disclosure to Mr Xu that Aluminum was tendering for the Founders Lane Project, and no agreement by Mr Xu that Aluminum could tender for or perform this work.

Discussions regarding separation

1. [168]

   Following Firmtech’s initial success in FY2019, it reported a loss of $802,000 in the financial year ending 30 June 2020 (FY2020).

2. [169]

   As Ms Xie and Mr Zhang submitted, this change in financial fortunes cannot be explained by the diversion of work from Firmtech to Aluminum. As outlined above, Aluminum does not appear to have received, as at 30 June 2020, any significant income from any of the projects it was tendering for or performing. During that financial year, Aluminum made a profit of $1,000, and Logikal was not trading.

3. [170]

   Instead, the change in financial performance appears to have been largely due to the outbreak of the COVID pandemic in early 2020. This resulted in supply prices increasing from around February 2020 onwards. Further, the imposition of the first lockdown from March 2020 significantly impacted cash flow.

4. [171]

   Following the commencement of the first lockdown, Mr Xu began visiting the Revesby Factory less frequently. From around July 2020, he was residing in Coonamble in New South Wales, which was the location of an abattoir business in which he had invested.

5. [172]

   From around March 2020, Mr Xu also began contributing less cash to Firmtech, despite Ms Xie and Mr Zhang raising issues about Firmtech’s poor cash flow position. Whereas Mr Xu had advanced more than $1m to Firmtech from May 2018 through to the end of February 2020, he only advanced a further $34,500 from March 2020 onwards. It does not matter for present purposes whether this was because, as Mr Xu asserted, his obligation was only to advance a further $1m (in addition to his initial capital contribution), or whether it was because, as Ms Xie and Mr Zhang asserted, Mr Xu ceased taking steps to comply with his obligation to advance up to $1.5m to assist with cash flow.

6. [173]

   From around this time, Ms Xie regularly posted WeChat messages on the Group Chat, complaining about the cash flow position. For example, on 19 May 2020, she posted the following message: “We have always been in a state of being short of money.”

7. [174]

   On 17 August 2020, the following WeChat messages were exchanged on the Group Chat:

8. [175]

   The “Modco Project” was the “Aire Project” in Wollongong, which is addressed below. Ms Xie was indicating that she needed cash in order to get the supplies necessary to commence work on this project. As at 16 August 2020 (the day before this exchange of messages), Firmtech had a credit balance of $8,774.89 in its bank account.

9. [176]

   Mr Zhang and Ms Xie contended that the difficult economic times during the COVID pandemic and the resultant cash flow impacts provided both context and an explanation for their proposal to close down Firmtech’s business (which was said to have been proposed to Mr Xu in September 2020).

10. [177]

    However, the evidence summarised above in relation to the Campbell 5 Project, the Embark on Northbourne Project and the Founders Lane Project clearly establishes that Ms Xie and Mr Zhang had no intention of exiting the aluminium windows and doors industry or of closing the Revesby Factory or letting go any employees. They were, at this time, actively seeking work for Aluminum, involving substantial projects, which were to be performed at that factory, using Firmtech’s employees and equipment.

11. [178]

    Further, the submission that Mr Xu was not performing his obligation to fund Firmtech, and that this had led to cash flow difficulties for Firmtech which were causing concern to Ms Xie and Mr Zhang, must be assessed in a context where, by late 2020, substantial amounts of cash were flowing into Aluminum’s bank account as a result of projects which Aluminum had undertaken without Mr Xu’s knowledge or acquiescence. This led to a significant disparity between the cash position of Firmtech and Aluminum. At the end of December 2020, Firmtech had only $3,116.24 in its account, whereas Aluminum had around $1.16m in its account. Ms Xie and Mr Zhang accepted that they never told Mr Xu about Aluminum’s financial position. In that context, Ms Xie’s complaint to Mr Xu (as set out in the WeChat messages quoted above) that she had been devoting “all [her] time & effort” to running Firmtech’s Windows and Doors Business and had not received even “a single dollar” for all of her hard work was an incomplete and inaccurate statement of the position.

12. [179]

    Ms Xie had, in fact, been performing work for Aluminum as well as for Firmtech, and Aluminum had, during 2020, earned significant revenue using premises, employees and equipment which were paid for by Firmtech. If this revenue had gone to Firmtech rather than Aluminum, Firmtech’s cash position at the end of 2020 would have been significantly improved.

13. [180]

    Similarly, the lack of Mr Xu’s physical presence at the Revesby Factory is of limited significance. Firmtech had, in addition to its Windows and Doors Business, a construction business. Whereas Ms Xie and Mr Zhang were responsible for managing the Windows and Doors Business, Mr Xu was responsible for managing the construction business and, in particular, for performing a project management role. His tasks in this role included being involved in design work and in discussions with engineers or architects. He gave unchallenged evidence that he was able to, and did, perform this role remotely.

14. [181]

    There is, in any case, no contention that Mr Xu breached any duty to Firmtech, or breached or repudiated any arrangement with Ms Xie and Mr Zhang regarding the operation of Firmtech, by reason of being physically absent from Firmtech’s premises at this time.

15. [182]

    Finally, it should be noted that the downturn in the industry as a result of COVID has no impact on any question of loss. Mr Xu and Firmtech did not seek to quantify their loss by reference to the downturn in Firmtech’s profit after the first year of its operation, but instead quantified their loss primarily by reference to the profits earned by Aluminum and Logikal as a result of the work which was diverted to those entities and the consequent reduction in the value of Firmtech’s business. Given that is so, there is no need to consider or determine the extent of any reduction in Firmtech’s income due to the COVID pandemic or any other external factors.

16. [183]

    Ms Xie and Mr Zhang pleaded in their Defence (at [153]) that in around December 2020 and January 2021, they agreed with Mr Xu to go their separate ways and that Firmtech would cease operating. The particulars to this pleading referred to telephone conversations in December 2020 and January 2021, and a meeting between the parties either at the Revesby Factory or at the Revesby Workers Club on or about 30 January 2021. There was no reference in the Defence to any such agreement having been reached in September 2020.

17. [184]

    In his initial affidavit of August 2022, Mr Zhang gave evidence that the first discussion about closing Firmtech was a telephone conversation in “late December 2020”, followed by the Revesby meeting in January 2021. There was no reference in his or Ms Xie’s affidavit to any meeting or discussion about this topic having occurred in September 2020. (I address the “late December 2020” conversation below.)

18. [185]

    The first time that Mr Zhang and Ms Xie asserted that there was a September 2020 meeting with Mr Xu to discuss the closure of Firmtech was in their affidavits of March 2024. This was after Mr Xu had given evidence, in his January 2024 affidavit, that Aluminum and Logikal were quoting for work in the aluminium and doors industry in November and December 2020 (including evidence in relation to, for example, the Epping Apartment Project, referred to at [213]-[225] below).

19. [186]

    It is common ground that a meeting between the parties occurred at Mr Xu’s house on Sunday, 20 September 2020. The event was memorable for all concerned because it was the first time that Ms Xie and Mr Zhang had visited Mr Xu’s home. Further, on this date Mr Xu’s family were celebrating a special occasion and Ms Xie had, in effect, invited herself over to his home late in the evening. At around 8.39pm, Ms Xie sent a message to Mr Xu asking “Are you at home?”. When Mr Xu confirmed he was, Ms Xie said “I will come to visit you”. Mr Xu provided her the address, and Ms Xie said “Is there anything good to eat”. Later that evening, at 9.25pm, Ms Xie sent a message: “I’m here”.

20. [187]

    Each of Mr Zhang and Ms Xie gave an account of this meeting in their March 2024 affidavits. Given the importance of the issue as to whether any agreement was reached regarding closure of Firmtech at this meeting, and given that the only evidence that any such agreement was reached at this meeting is the evidence given by Mr Zhang and Ms Xie, I have set this out in full below.

21. [188]

    According to Mr Zhang, the discussion at the September meeting was to the following effect:

22. [189]

    According to Ms Xie, the discussion was to the following effect:

23. [190]

    In a reply affidavit of May 2024, Mr Xu denied that there was any discussion at this meeting about closing down Firmtech. Mr Xu’s account of the meeting was as follows:

24. [191]

    There was some measure of common ground, in that Mr Xu acknowledged in his affidavit that Mr Zhang and Ms Xie told him at the meeting that “the window business was hard”, and Ms Xie accepted in cross-examination that there was discussion at the meeting about the bribery allegations concerning her former business partner.

25. [192]

    In cross-examination, each of Mr Zhang and Ms Xie accepted that there was no agreement reached at this meeting that Firmtech would be closed down.

26. [193]

    Mr Zhang said that the meeting on 20 September 2020 was just the start of a process of discussion between the directors (Mr Xu and Mr Zhang) about separating and closing Firmtech. He gave the following evidence in cross-examination:

27. [194]

    Ms Xie said that the main topic discussed at this meeting was Mr Xu’s “meat business”, leading to the following question and answer:

28. [195]

    Given that, as Mr Zhang acknowledged, any decision to close down Firmtech would have required the parties to take steps to separate their business affairs, including their property investments, and to determine what money was owed between them in respect of their various investments, it would be expected that any agreement to close down Firmtech, or any serious consideration being given by the directors to closing down Firmtech, would have led to an exchange of messages about these matters. However, no document was created before January 2021 which addressed any of those issues. Nor is there any document, including any WeChat communication, which refers to any such steps being taken.

29. [196]

    On 7 October 2020, the following WeChat messages were exchanged on the Group Chat:

30. [197]

    There are several points to note about this exchange, only around two weeks after the meeting of 20 September 2020. First, it provides evidence that no agreement had been reached at that meeting to close Firmtech, otherwise there would have been no need for Ms Xie to commence the exchange by saying “I want to ask you to close this business”. Secondly, in this exchange Ms Xie was expressing frustration at her husband’s poor bargaining skills (as she acknowledged in cross-examination). She was not, and was not understood at the time to be, advancing by these messages a serious proposal to Mr Xu to close Firmtech. Mr Xu said he regarded it as a marital dispute: “I interpret it as a husband/wife fighting and disagreements”. When Mr Zhang was taken to this exchange in cross-examination, he agreed that it was not a serious discussion: “we work in s[a]me business. We have some time we have a fight. Yeah, so this is more like a casual conversation.” Thirdly, in this exchange, Mr Xu indicated that he wanted to keep the business running and that, if necessary, he would find someone else to run the Revesby Factory. It is plain that he had at this time no intention to close Firmtech’s Windows and Doors Business. Fourthly, and consistently with the points set out above, in the days following these messages, the parties went back to business as usual. In particular, in the WeChat messages posted on the Group Chat in the following days, Mr Xu asked questions about the level of stock in inventory, to which Mr Zhang responded, and Mr Xu and Ms Xie exchanged messages about the payment of rent for the Revesby Factory. There was no further reference to “closing” the business at this time.

31. [198]

    Having regard to those matters, I find that there was no agreement at the 20 September 2020 meeting to close Firmtech. Although there was some discussion about the difficult financial conditions in which Firmtech was operating, there was no firm indication given by Ms Xie or Mr Zhang to Mr Xu at this time that they intended or wanted to leave Firmtech, let alone any discussion or agreement about the terms on which this would occur.

32. [199]

    Further, even if the substance of the conversation with Mr Xu on 20 September 2020 was as set out in Ms Xie’s or Mr Zhang’s affidavits (which is, for the reasons set out above, unlikely), it would not follow that Mr Xu provided informed consent to Ms Xie and Mr Zhang competing with Firmtech through either Aluminum or Logikal from September 2020 onwards.

33. [200]

    On Mr Zhang’s account, he told Mr Xu: “I am very tired working day and night and I think we should consider closing down the business”. He said that if Firmtech simply completed its existing jobs, it might be difficult to keep the employees busy, and so suggested: “We might do some smaller projects ourselves so that the employees can continue to work full-time”. Mr Xu was said to have agreed with this proposal.

34. [201]

    Similarly, on Ms Xie’s account, there was no discussion at the September 2020 meeting about her businesses competing with Firmtech while it was still operating. Instead, according to Ms Xie, Mr Zhang said that he was “so tired”, expressed a desire to “close down the business”, and added that he “might just do smaller jobs in the future”, to which Mr Xu responded “Ok”.

35. [202]

    If statements to that effect were made by Mr Zhang to Mr Xu at the September 2020 meeting, they were misleading. Mr Zhang was not “tired” of running a business in the aluminium windows and doors industry, and was not interested in only working on “smaller jobs” in the future. At this time, Aluminum was tendering for precisely the same type of work as Firmtech was performing, and of similar or greater scale. For example, Aluminum had only two months earlier, in July 2020, provided a quotation for the Founders Lane Project at a lump sum price of $6.659m (excluding GST), being an amount twice the value of the largest job Firmtech had undertaken.

36. [203]

    On the account given by Mr Zhang and Ms Xie regarding the substance of their conversation with Mr Xu, there was no reference at the September 2020 meeting to Aluminum; no reference to the quotations which Aluminum had already submitted, or the value of those quotations; and no reference to the contracts which Aluminum had entered or the nature of the work which it was undertaking pursuant to those contracts.

37. [204]

    The true position was that, far from being “tired” of working in the aluminium windows and doors industry, Mr Zhang and Ms Xie intended to keep working just as hard in that industry, including for existing clients of Firmtech (such as Icon). As at September 2020, they had taken, and were continuing to take, steps to secure substantial contracts for such work, but were seeking such contracts through an entity which was wholly owned by Ms Xie, rather than through an entity in which Mr Xu had a 50% share. On Mr Zhang’s and Ms Xie’s own account of the 20 September 2020 meeting, none of those matters was disclosed to Mr Xu.

38. [205]

    Accordingly, even if Mr Zhang’s and Ms Xie’s evidence were accepted, any consent given by Mr Xu (and therefore Firmtech) to “some smaller projects” being performed by Mr Zhang and Ms Xie, at some stage in the future, could not have amounted to consent to any of the steps already taken by Aluminum prior to September 2020, or to any of the steps which Aluminum and Logikal took after September 2020, and could not have amounted to informed consent, having been given on the basis of incomplete and misleading information.

39. [206]

    Mr Zhang deposed in his first affidavit of August 2022 that there was, in late December 2020, a three-way telephone call between himself, Mr Xu and Ms Xie in which the parties agreed to close down Firmtech. Mr Xu denied this conversation.

40. [207]

    In opening address, Counsel for the Zhang/Xie Parties indicated that his clients accepted, despite “some suggestion that the meeting occurred in December” 2020, that the relevant discussions were in January 2021. That conclusion is consistent with a WeChat message which Mr Zhang posted on the Group Chat on 30 December 2020, which stated as follows: “kevin, the 3 of us haven’t gotten together for some time, how about a tea party at a steak house one night when you are free to discuss what to do next?” As a result of this message, there was a meeting between the parties on 9 January 2021 (which is discussed below).

41. [208]

    In closing submissions, the Zhang/Xie Parties did not advance any contention that there was a discussion in December 2020 in the terms recorded in Mr Zhang’s affidavit.

42. [209]

    By reason of the matters set out above, there was, in the period from September 2020 through to end of 2020, no agreement between the parties to close down Firmtech, no agreement to separate their business interests and, in any case, no informed consent to Aluminum and Logikal competing with Firmtech’s Windows and Doors Business.

43. [210]

    Despite that being the case, Aluminum and Logikal took significant further steps in this period to secure contracts for work of a type that Firmtech’s Windows and Doors Business was able to perform.

44. [211]

    This included taking further steps in relation to a number of the projects already addressed above, for example:

    1. (1)

       on 20 October 2020, Aluminum issued an invoice to Icon in relation to stage 1 of the Embark on Northbourne Project; and

    2. (2)

       on 14 October 2020, Ms Xie sent an email requested “updated quantities” in respect of the Founders Lane Project, and on the following day was provided with “drawings which should provide more clarity regarding the scope of works”.

45. [212]

    In addition, Aluminum sought, and performed work on, a number of other jobs.

46. [213]

    The “Epping Apartment Project” was a development at 1-7 Crandon Road, Epping, NSW, which was being built by Forte Sydney Construction Pty Ltd.

47. [214]

    Mr Zhang agreed in cross-examination that Firmtech had done work for Forte, from soon after the time when Firmtech commenced its operations. In particular, in 2018 and 2019, Firmtech had performed work on various Forte projects, including the Junction Street project in Ryde, the La Porta project in Ryde and the Nicholson Street project in Burwood. Mr Xu considered Forte to be a “good customer of Firmtech’s”.

48. [215]

    On 2 November 2020, Ms Xie sent an email to a Forte representative, copied to Mr Zhang. The subject line of the email was “1-7 Crandon Road window quote 03112020”. Ms Xie signed off as “Yan Xie, Firmtech”. She said it was her pleasure to submit a quotation for the installation of aluminum windows and doors for the project and added:

49. [216]

    Ms Xie accepted in cross-examination that, although she signed off as “Firmtech”, and referred to the work that “Firmtech” could do, this email was in fact sent on behalf of Aluminum. Mr Zhang also confirmed that he understood this email, which was copied to him, was sent on behalf of Aluminum (despite the fact that, as he conceded, Firmtech could perform each of the types of work described).

50. [217]

    On 3 November 2020, Ms Xie sent a further email to Forte in relation to the Epping Apartment Project, which attached a quotation. Again, she signed off as “Firmtech”, but the attached quotation was in the name of Aluminum. The quotation was for the installation of aluminium windows and doors, and was in the amount of $450,000 (excluding GST). Mr Zhang aware at the time that Aluminum was quoting for work on the Epping Apartment Project.

51. [218]

    On 10 December 2020, a revised quotation was prepared for this work, in the amount of $420,000 (excluding GST). On the same date, Ms Xie sent an email to Forte, which was copied to Mr Zhang, from the email address “logikalface@gmail.com”. Ms Xie thanked the Forte representative “for your time for tender meeting”, referred to the revised quotation which was attached, and stated: “For new projects, will under by Logikal Façade management”.

52. [219]

    On 18 December 2020, Forte issued a “Letter of Intent” to Logikal in respect of the Epping Apartment Project. It stated that Forte was prepared to engage Logikal “for Aluminium Windows and Doors package, as set out, but not limited to the Scope of works, for an agreed amount of $420,000 + GST”. This letter was signed by Ms Xie on behalf of Logikal on 1 January 2021. Mr Zhang was aware of this at the time.

53. [220]

    Between August 2021 and March 2022, Logikal received payments totalling $438,790 from Forte.

54. [221]

    Mr Xu gave unchallenged evidence that he was not aware of any of the matters set out above, until he reviewed documents produced by the Zhang/Xie Parties in the Principal Proceeding.

55. [222]

    Neither Mr Zhang nor Ms Xie gave any evidence to the effect that they disclosed to Mr Xu that Aluminum and Logikal were quoting for the Epping Apartment Project, or sought his consent in that regard.

56. [223]

    Even if (contrary to the findings I have made above) Mr Xu had stated that he did not want to be involved in the Canberra market and that any such work could be performed by Aluminum, or had agreed to some “special arrangement” whereby Aluminum could perform work on projects for JWLand, any such agreement could not apply to this project, which was being conducted in NSW by Forte (which was an existing customer of Firmtech).

57. [224]

    The principal basis on which Ms Xie and Mr Zhang sought to justify the performance of this project by Logikal rather than by Firmtech was by reference to the 20 September 2020 meeting. Significantly, Ms Xie and Mr Zhang first gave evidence to the effect that there was an agreement in September 2020 to close Firmtech after Mr Xu had given evidence about the steps undertaken by Aluminum in November and December 2020 in relation to the Epping Apartment Project.

58. [225]

    For reasons given above, I have determined that there was no agreement reached at the 20 September 2020 meeting to close down Firmtech and that, in any case, Mr Xu (and therefore Firmtech) did not, at this meeting, give consent, let alone informed consent, to Aluminum or Logikal competing with Firmtech for projects in the aluminium windows and doors industry.

59. [226]

    The “Elara Shopping Centre Project” was the development of a shopping centre being undertaken by Parkview Constructions at Elara Boulevard in Marsden Park, New South Wales.

60. [227]

    In 2019 and 2020, Firmtech had worked on projects being undertaken by Parkview Constructions in Kemps Creek and Bondi Junction. The former involved the supply and installation of aluminium windows and doors for a price of $125,000 (excluding GST) and the latter involved the supply of handrails, balustrades and louvres for a price of $290,275 (excluding GST). Mr Xu gave evidence that, as part of establishing the relationship with Parkview Constructions, he had attended a business lunch with the Chairman of that company, where they discussed a project worth $8m for which Firmtech was tendering.

61. [228]

    On 27 July 2020, Ms Xie received an email, which was sent to her Firmtech address, setting out a list of open tenders, including a number of invitations to quote which required a response. One of these was an invitation to quote for the Elara Shopping Centre Project.

62. [229]

    On 17 November 2020, Ms Xie issued, on behalf of Firmtech, a quotation for the supply of aluminium windows and doors to the Elara Shopping Centre Project, for the amount of $793,000 (excluding GST). This quotation was said to be issued by Ms Xie as “Director” of Firmtech. Ms Xie was not a director of Firmtech, but was a director of Aluminum.

63. [230]

    There was in evidence a contract which was prepared by Parkview Constructions in respect of the supply of aluminium windows and doors for the Elara Shopping Centre Project. This specified the date of the agreement to be 26 November 2020, and specified the subcontractor to be Aluminum. The Contract Price was the same as the amount specified in the quotation that had been issued by Firmtech in July 2020, that is, $793,000 excluding GST.

64. [231]

    Each of Mr Zhang and Ms Xie gave evidence that this contract was not signed on behalf of Aluminum until around February 2021. There were emails in evidence which supported this evidence. Mr Xu acknowledged in closing address that the contract was likely signed around that time.

65. [232]

    However, in cross-examination, Mr Zhang said that the contract between Parkview and Aluminum was “ready to go” prior to the meeting with Mr Xu in late January 2021. Further, in January 2021, drawings had been prepared for the Elara Shopping Centre Project which bore the name of Aluminum rather than Firmtech. Mr Zhang described these drawings as a “tender document”.

66. [233]

    It follows that, at some stage between July 2020 (when Firmtech issued a quotation for this project) and 30 January 2021, Ms Xie or Mr Zhang had decided, and informed Parkview Constructions, that the work on this project for which Firmtech had quoted would be performed not by Firmtech, but by Aluminum.

67. [234]

    Between July 2021 and March 2022, Aluminum issued invoices to Parkview Constructions in respect of the Elara Shopping Centre Project totalling $823,998.65.

68. [235]

    Mr Xu gave unchallenged evidence that he was unaware of these matters until he reviewed documents produced by the Zhang/Xie Parties in the Principal Proceeding.

69. [236]

    Neither Ms Xie nor Mr Zhang gave any evidence that Mr Xu was informed of the Elara Shopping Centre Project, or consented to this project being performed by Aluminum, rather than by Firmtech.

70. [237]

    The only substantive submission made by Ms Xie and Mr Zhang in respect of this project was that the relevant contract was signed in February 2021, after the parties had agreed to separate. I deal below with the question whether there was, in late January 2021, an agreement to separate and, more significantly, whether there was at that time an agreement that, prior to separation, Ms Xie and Mr Zhang could perform work in the aluminium windows and doors industry through Aluminum or Logikal, in competition with Firmtech. However, leaving that issue aside, the evidence supports a conclusion that Aluminum had sought, and obtained, Parkview Constructions’ agreement to Aluminum being substituted as subcontractor on the Elara Shopping Centre Project prior to the meeting with Mr Xu to discuss separation in late January 2021. Neither Ms Xie nor Mr Zhang gave evidence that this matter was disclosed to Mr Xu at that meeting.

71. [238]

    Mr Xu pleaded, and Mr Zhang and Ms Xie admitted, that on or before 29 September 2020, Aluminum performed work for financial reward on two projects, known as “Akora Residences” and “Altair No 1”. A total amount of $25,917 was received for these jobs (ASC, [110AC]-[110AD]; Defence, [110AC]-[110AD]). Ms Xie gave evidence in cross-examination that Aluminum performed this work for JWLand pursuant to oral contracts.

72. [239]

    Ms Xie and Mr Zhang did not give any evidence in their affidavits to the effect that they disclosed either project to Mr Xu, or sought his agreement to those projects being performed by Aluminum.

73. [240]

    On 9 January 2021, there was a meeting between Mr Xu, Ms Xie and Mr Zhang at the Revesby Workers Club.

74. [241]

    Ms Xie deposed that, at this meeting, there was a conversation to the following effect:

75. [242]

    As noted at paragraph [207] above, Counsel for the Zhang/Xie Parties submitted that Mr Zhang’s evidence of the “late December 2020” conversation should be read as evidence of what occurred at this meeting in early 2021. Mr Zhang’s evidence of this conversation was as follows:

76. [243]

    Mr Xu deposed that, at the meeting at the Revesby Workers Club on 9 January 2021, there was a discussion about cash flow problems, and that in the course of this discussion he made the following statements:

77. [244]

    One point of common ground is that there was discussion at this meeting about the financial difficulties faced by Firmtech. As the Zhang/Xie Parties noted in their submissions, Firmtech had, at this time, little available cash. On 30 December 2020, when this meeting was requested, Firmtech’s bank account had a balance of $6,733.74. In early January 2021, it received some payments from builders, but by 19 January 2021, its bank balance was back to $8,982.85.

78. [245]

    Another point of common ground is that there was some discussion about what should be done in the light of this difficult financial position. According to Mr Xu, he wanted a meeting to “work out the company financial status”, and he wanted steps to be taken for Firmtech to commence repaying the money which he had advanced.

79. [246]

    According to the account of Mr Zhang and Ms Xie, Mr Zhang raised the issue of separating as a possibility (“Maybe we should separate” / “maybe we should close it”), but recognised that further work would need to be done on the financial position of the company (“We will need to work out payables and receivables for closing up the company” / “We need to look at the financial documents to decide how to close the company and pay out any money and loans”).

80. [247]

    Around three weeks after the 9 January meeting, an email was sent to Mr Xu with some financial analysis relating to the closing down of Firmtech, which was discussed at a meeting the following day. The critical issue for the purposes of the Principal Proceeding is what was discussed, and agreed, at this later meeting.

81. [248]

    It follows that the dispute regarding the differing accounts of the meeting of 9 January 2021 is of relatively limited significance. If it were necessary to resolve this dispute, I would prefer Mr Xu’s account, having regard to subsequent events. In particular, there is evidence, discussed below, that when Mr Xu received Mr Zhang’s email about “closing down” Firmtech, he had a volatile and hostile reaction. That strongly suggests that the email took him by surprise. It is unlikely that Mr Xu would have reacted this way if, as Ms Xie and Mr Zhang deposed, there had been a meeting shortly before this email was sent, at which the topic had been discussed and a consensus had been reached.

82. [249]

    Significantly, even if Ms Xie’s and Mr Zhang’s account of the meeting were accepted in full, this evidence does not establish that as at 9 January 2021 Mr Xu (and therefore Firmtech) gave consent, let alone informed consent, to Ms Xie and Mr Zhang using Aluminum or Logikal to compete with Firmtech for work in the aluminium windows and doors industry.

83. [250]

    On Ms Xie’s account, Mr Zhang said that there was “a lot of pressure as a result of COVID”, with “prices … increasing”, “builders … paying very slow” and the business “losing money”, and suggested: “Maybe we should separate and I can do a smaller business by myself so there is less pressure”. Similarly, on Mr Zhang’s account, Ms Xie said that they did not “have money in the company” and so could not “pay the workers or bills”, and Mr Zhang complained that he could not “handle” the situation which had arisen “due to COVID”, and suggested that “maybe” they should close Firmtech so that Mr Zhang could “do something smaller with less risk and more margin”.

84. [251]

    If statements to this effect were made by Ms Xie and Mr Zhang to Mr Xu, they were misleading.

85. [252]

    First, while it was true that Firmtech had limited cash at bank at this time, and was paying out money to suppliers as soon as it was received, Aluminum’s bank account was flush with cash, with a balance of around $1.34m as at the date of the 9 January meeting. This disparity was due, in part, to the diversion of work from Firmtech to Aluminum that had already taken place. This included an arrangement (according to Mr Zhang’s own evidence) whereby the Campbell 5 Project had been subcontracted to Firmtech at cost, with Aluminum retaining the margin. So, for example, on 4 December 2020, $389,280 was deposited by Icon into Aluminum’s bank account, and on the same day less than half of that sum ($175,000) was transferred to Firmtech’s account (with a reference to “C5 windows”). Mr Xu was not told about the significant cash that had accumulated in Aluminum’s account as a result of the diversion of work from Firmtech’s Windows and Doors Business to Ms Xie’s company. That was a material omission in circumstances where Ms Xie and Mr Zhang were complaining about the cash available to Firmtech in early January 2021.

86. [253]

    Secondly, the statements set out above conveyed that, if Mr Zhang and Mr Xu separated, and ceased operating Firmtech, then Mr Zhang would be free to run a “smaller business”, which is what he wanted to do. On Ms Xie’s account, Mr Zhang also said to Mr Xu words to the effect that he thought there would be problems if they tried to “have two companies in the same office”, using the same premises and equipment; that he would therefore probably need to “move out” to run his own “smaller business”; that he would not do so while he was still working for Firmtech “to finish off the remaining jobs”; and that although he would “maybe” look for “a smaller factory” to “move out” once those jobs for Firmtech were complete, this was something that he and Mr Xu “can discuss later”.

87. [254]

    The true position was that Ms Xie and Mr Zhang, at the time of the 9 January 2021 meeting, were already running two other businesses (Aluminum and Logikal) from the same premises as Firmtech, using its employees and equipment, and those businesses were already performing work of a similar type and scale to Firmtech’s Windows and Doors Business, well in advance of any decision to separate, or the implementation of any such decision.

88. [255]

    On 29 January 2021, Mr Zhang sent an email to Mr Xu, with the subject line (in Mandarin) “Closing Down Calculations”. The spreadsheets attached to this email set out:

    1. (1)

       a record of the costs of materials and labour for a construction project at Carlingford (which was being undertaken by Firmtech, at cost, for Mr Xu’s brother);

    2. (2)

       a balance sheet of Firmtech as at 15 January 2021, setting out assets and liabilities, which included in the list of assets “Projects under construction” (one of which was “C5”, a reference to the Campbell 5 Project, and another was “Modco”, a reference to the Aire Project which is discussed below);

    3. (3)

       calculations relating to the Lansvale Property and the Panania Property, recording contributions by the various parties to those investments;

    4. (4)

       calculations of the total amount of cash advanced by Mr Xu to Firmtech, and withdrawn by him from Firmtech’s account (and, separately, a spreadsheet setting out individual payments and withdrawals);

    5. (5)

       the balance of the “Luna private loan”, which was stated to be $500,000;

    6. (6)

       amounts owing by various companies and the amount of retentions, together with a column headed, in Mandarin, “bad debts”; and

    7. (7)

       a list of assets and a calculation of depreciation for each.

89. [256]

    Mr Xu received this email while he was in a utility vehicle being driven by his friend, Mr Zhenqi Zhang, from Coonamble back to Sydney. It was common ground that the receipt of this email led Mr Xu immediately to call Mr Zhang from the vehicle, and that Mr Xu was angry and shouting on this call with Mr Zhang. Each of Mr Xu, Mr Zhang and Mr Zhengi Zhang gave evidence about this conversation.

90. [257]

    There was a dispute, and extensive cross-examination, about what was said in the course of this call. Mr Xu and Mr Zhengi Zhang gave evidence to the effect that Mr Xu was angry at the suggestion that the business would be closed down. Mr Zhang gave evidence that Mr Xu was angry because the amount shown for the Luna Loan in the attached spreadsheets (namely, $500,000) was understated, and that it should be “$1 million plus interest”.

91. [258]

    Ultimately, this is a dispute of little consequence.

92. [259]

    This telephone conversation is relevant to the issue whether the topic of closing down was first raised by the email which preceded it, or had previously been discussed at the 9 January 2021 meeting. However, as I explain below, little turns on whether the topic was discussed at that meeting because, even on Ms Xie’s and Mr Zhang’s version of events, no decision to cease operations was made on 9 January 2021. In particular, there needed to be analysis of the financial position, including “payables and receivables” before any decision to close down Firmtech could be made

93. [260]

    As Ms Xie and Mr Zhang acknowledged in closing address, “at the end of the day the dispute about the 29th [January telephone conversation] really doesn’t take matters too far because the very next day, there’s a meeting and things happen”. The critical issue is what was discussed, and agreed, by the parties on 30 January 2021.

94. [261]

    If it were necessary to determine this issue regarding the telephone conversation, I would have preferred the evidence of Mr Zhenqi Zhang and Mr Xu over that of Mr Zhang. That is because of the circumstances in which the call was made and the event which prompted it.

95. [262]

    It was common ground that Mr Xu received and read the email from Mr Zhang on his phone while on the road and immediately called Mr Zhang, and was shouting at Mr Zhang with rage during this call.

96. [263]

    It is understandable that such a reaction might be prompted by the subject line of the email sent by his business partner – “Closing Down Calculations” – which was immediately visible on opening the email, and was a matter of great consequence. It is less likely that such a reaction would have been prompted by opening and reading the various spreadsheets which were attached to the email, and noticing amongst the figures there set out one line item which Mr Xu considered to be understated. Further, there was no reason for any such understatement to give rise to such an angry reaction, given that it was a single entry in a spreadsheet that contained multiple indications that Mr Xu’s input was required (“need kevin to confirm”) before the figures could be finalised.

97. [264]

    One aspect of Mr Zhenqi Zhang’s evidence which was unchallenged was that Mr Xu was so upset as a result of this call that, instead of sharing the long drive from Coonamble to Sydney, as they usually did, Mr Zhenqi Zhang drove the whole way. It seems improbable that a disputed figure for a loan balance, being one among many figures to be considered and determined, would have led to such a reaction on the part of Mr Xu.

98. [265]

    On the day after the “Closing Down” email was sent, Mr Xu met with Ms Xie and Mr Zhang at the Revesby Factory.

99. [266]

    The purpose of the meeting was to discuss the “Closing Down” email. In cross-examination, Mr Xu accepted that Ms Xie and Mr Zhang expressed a desire to leave Firmtech and said that his view at this time was that, if they wanted to depart, there was nothing he could do about it. The critical issues are what was discussed regarding the steps which needed to be taken before Mr Zhang and Ms Xie left Firmtech; whether the parties agreed that, following the departure of Mr Zhang and Ms Xie, Firmtech would cease operations; whether Mr Xu indicated that he wanted to find a new manager to continue Firmtech’s Windows and Doors Business; and whether Mr Xu agreed that prior to leaving Firmtech, Mr Zhang and Ms Xie were free to perform work for Aluminum or Logikal, and to divert any existing quotations or new jobs to those companies.

100. [267]

     Mr Zhang gave evidence in his August 2022 affidavit that a discussion to the following effect took place at this meeting:

101. [268]

     On this account, Ms Xie proposed that they “share the factory and machines going forward, running our new separate businesses”. If a statement to this effect was made by Ms Xie, it was misleading. Ms Xie had in fact been running a “separate business” using Firmtech’s “factory and machines”, for a number of months prior to January 2021. This was not, as she suggested, a “new” thing which would only be happening “going forward”. Neither Mr Zhang nor Ms Xie suggested in their affidavit evidence that there was any disclosure to Mr Xu at this meeting of the fact that work had already been sought, obtained and performed by Aluminum, or that such work had been diverted from Firmtech to Aluminum, or of the details of any such projects.

102. [269]

     Further, the statement that separate businesses would be operated “going forward” is expressed in vague terms. If there were a conversation to that effect, it would not have been clear to Mr Xu whether what was being proposed was that immediately from the time of the meeting, Ms Xie would be operating a competing business (which was, in truth, something that had been happening for many months), or whether it was proposed that after Ms Xie and Mr Zhang “completed the current contracts” for Firmtech, this would occur. There was also no discussion, on Mr Zhang’s account, regarding what would happen to projects for which Firmtech had already issued quotations (such as the Elara Shopping Centre Project, which was diverted to Aluminum).

103. [270]

     In her August 2022 affidavit, Ms Xie gave a very short account of this critical meeting at the Revesby Factory, recalling only the following statements:

104. [271]

     In an affidavit of March 2024, Ms Xie referred to this evidence, and added that Mr Xu “did not agree with a number of other items regarding the costs incurred with respect to the Carlingford property”, and that words to the following effect were spoken:

105. [272]

     On the account of Ms Xie outlined above, the discussion at the 30 January meeting focussed on the steps necessary to separate their financial affairs. She did not give evidence of any discussion regarding what would happen to Firmtech once their affairs were separated.

106. [273]

     Critically, Ms Xie did not suggest there was any discussion at this meeting about her or Mr Zhang running a separate business in competition with Firmtech from the time of this meeting, or any disclosure to Mr Xu that she and Mr Zhang had in fact already been doing so for an extended period.

107. [274]

     In his July 2022 affidavit, Mr Xu deposed that at this meeting words to the following effect were spoken:

108. [275]

     Mr Xu also said that there was an extended discussion regarding the figures in the “Closing Down Calculations”.

109. [276]

     Significantly, Mr Xu’s account of what Mr Zhang said on 30 January 2021 is similar to Ms Xie’s account of what he had said at the meeting on 9 January 2021: namely, that Mr Zhang was “tired”; that he only wanted to do “small projects”; and that he would prefer to have a “small little factory”. Accordingly, it is likely that (at one of these meetings) Mr Zhang said words to this effect to Mr Xu. However, for reasons I have set out above when dealing with the 9 January meeting, those statements were misleading. In particular, it is notable that only a few days after the 30 January meeting, Logikal entered into a contract with JWLand to perform the Founders Lane Project for a price of $1.441m; and, on Mr Zhang’s evidence, there was “ready to go” at the time of the 30 January meeting a contract between Aluminum and Parkview Constructions for the Elara Shopping Centre Project for a price of $793,000. There is no suggestion that those matters were disclosed to Mr Xu.

110. [277]

     I accept Mr Xu’s evidence that he said words to the effect that if Ms Xie and Mr Zhang wanted to leave the business, then they were able to do so (“no problem”), but that he wanted the Windows and Doors Business to continue and that he would seek “a new manager” for that purpose. That is consistent with what he said in a WeChat message to Ms Xie and Mr Zhang in October 2020, in response to Ms Xie’s statement that she did not want to work in the business any more, namely, “I’ll find someone to run this aluminium factory”.

111. [278]

     It is also consistent with statements which Mr Zhang recalled Mr Xu making in a telephone conversation which they had prior to the 30 January 2021 meeting:

112. [279]

     In his January 2024 affidavit, Mr Xu gave the following evidence regarding what was not discussed at the 30 January 2021 meeting:

113. [280]

     I accept Mr Xu’s evidence that he did not agree, on 30 January 2021, to Mr Zhang and Ms Xie taking over or transferring any of the businesses or customers of Firmtech. This is consistent with the evidence of Mr Zhang and Ms Xie. Neither of them suggested that Mr Xu (and therefore Firmtech) was asked to, or did, consent to this occurring. There was no rational reason for him to do so.

114. [281]

     I also accept Mr Xu’s evidence that he was content for Mr Zhang and Ms Xie to leave Firmtech and “do small projects”. Again, this is consistent with the evidence of Mr Zhang and Ms Xie. Each deposed that Mr Xu was told that this was their intention. If Mr Zhang and Ms Xie were tired of working in Firmtech and wanted to leave and focus on smaller projects on their own, then there was no reason for Mr Xu to stand in their way, particularly where they had offered to stay on to complete the existing projects. The discussion at the 30 January 2021 meeting took place in a context where the outcome sought to be achieved was that the parties would cease to operate together, and would thereafter be free to conduct separate businesses on their own account. The focus of the discussion was on what steps were necessary in order to achieve this outcome.

115. [282]

     I accept Mr Xu’s evidence that he wanted to continue to operate the Windows and Doors Business from the Revesby Factory after Mr Zhang’s and Ms Xie’s departure. By this time, the Windows and Doors Business had been operational for two and a half years. It had a number of clients for whom it had performed multiple projects. The business had significant profits in the first full year of operation, and its poor financial performance in its second year was (as all parties agree) the result of the impact of the COVID pandemic.

116. [283]

     However, for reasons outlined below, I do not accept that Mr Xu intended to continue, after Mr Zhang’s and Ms Xie’s departure, to operate the Windows and Doors Business through Firmtech.

117. [284]

     Mr Xu deposed that he did not “consider it was practical to close Firmtech” as at the end of January 2021, explaining that:

118. [285]

     It is implicit in Mr Xu’s evidence that he considered that, when the steps which he identified in the passage quoted above had been taken, it would be “practical to close Firmtech”.

119. [286]

     There are a number of points of common ground between this evidence and the evidence of Ms Xie and Mr Zhang.

120. [287]

     For example, Ms Xie deposed that there was discussion about the interest payable on the loan from Mr Xu’s brother, and Mr Zhang deposed that there was discussion about the need for the parties to repay $1m plus interest in respect of the Luna Loan.

121. [288]

     Further, Mr Zhang gave evidence that, at the 30 January meeting, he proposed to Mr Xu, and Mr Xu agreed, that the Lansvale Property should be sold to pay the loan to Ms Gu and to repay the money that Mr Xu had contributed to Firmtech.

122. [289]

     The conclusion that the parties discussed, at the 30 January 2021 meeting, the repayment of the moneys which Mr Xu had paid into Firmtech, the repayment of money owing to third parties, and the completion of existing jobs and the sale of the Panania and the Lansvale Properties in order to repay those amounts, is confirmed by the fact that all of those matters were addressed in the “Closing Down Calculations” which were sent by Mr Zhang to Mr Xu prior to the 30 January meeting, and also by the fact that revised versions of those calculations were sent by Ms Xie to Mr Xu after the 30 January meeting. Further, as outlined in more detail below when dealing with the Panania Proceeding and the Lansvale Proceeding, WeChat messages were exchanged in the weeks following the meeting regarding the use of the proceeds of the sale of the Lansvale and Panania Properties to repay the Luna Loan and Mr Xu.

123. [290]

     The “Closing Down Calculations” included, in the assets of Firmtech, various projects which were currently on foot (such as the Aire Project being undertaken for Modco, which is discussed further below). As outlined at paragraph [271] above, Ms Xie recalled telling Mr Xu that Mr Zhang would continue in his role at Firmtech until the “Modco construction” job was completed “to handover to the builder”.

124. [291]

     Mr Xu gave evidence that he understood the Mr Zhang and Ms Xie “need to finish that [the existing projects] and then we share the profits [of those projects]”, but also that Mr Zhang and Ms Xie needed, while remaining at Firmtech to complete those jobs, to continue to pursue existing opportunities, for the benefit of Firmtech’s shareholders:

125. [292]

     I accept this evidence. There was no reason for Mr Xu to forego any valuable opportunity which was available to Firmtech in this six-month period, and it was commercially sensible for the parties to share the benefits of any such opportunity which became available while they were still operating a business together.

126. [293]

     However, it does not follow that Mr Xu intended the position to be the same after Mr Zhang and Ms Xie left Firmtech.

127. [294]

     The focus of the parties on 30 January 2021 was on the steps necessary to separate their financial affairs. Firmtech was one element of their joint endeavours, among others, including the property purchases and the Luna Loan. The “Closing Down Calculations” which were sent by Mr Zhang to Mr Xu before the meeting, and the discussion at the meeting, focussed on what steps were required in order to bring the financial relationship between the individuals to an end, and thereby to “close down” their investments together (including Firmtech).

128. [295]

     Firmtech had been established by Mr Xu providing over $1m of funds, and by Mr Zhang and Ms Xie providing their skills, experience and contacts. Using those contributions from its shareholders, Firmtech had established and built its Windows and Doors Business.

129. [296]

     When the steps discussed at the 30 January meeting had been completed, the shareholders of Firmtech would, effectively, be in a position to take away what they had put into the company. Mr Xu would, for his part, have received back from the company all of the cash that he had contributed to the establishment and operation of the company; and Mr Zhang and Ms Xie would, for their part, be free to leave the company and take away with them their skills, experience and contacts.

130. [297]

     It is likely that the parties intended that, after these steps had been taken and their investments together (including Firmtech) had been “closed down”, each would be free to perform any new projects in the aluminium windows and doors industry on their own account.

131. [298]

     So far as Mr Zhang and Ms Xie are concerned, it is clear that they intended to perform any new business on their own account through Aluminum or Logikal, which were wholly owned by Ms Xie. This is what they had been doing and what they continued to do.

132. [299]

     So far as Mr Xu is concerned, it would have been commercially irrational for him to continue, after Mr Zhang’s departure, to operate the Windows and Doors Business through a company in which Mr Zhang had a 50% interest. If he were to do so, Mr Zhang, who had ceased making any contribution to the operation of the business, would have continued to be entitled to half of its profits.

133. [300]

     In practical commercial terms, there were two options open to Mr Xu for the continuation of the Windows and Doors Business. The first was to buy Mr Zhang’s shares and to continue to operate the business through Firmtech. The second was to operate the business, and perform any new jobs, through a different entity which was wholly owned by Mr Xu.

134. [301]

     There is no evidence that Mr Xu ever raised the possibility of buying Mr Zhang’s shares. Accordingly, it is likely that Mr Xu intended to set up another company, of which he was the sole director and shareholder, to take over and run the Windows and Doors Business from the Revesby Factory following the departure of Mr Zhang and Ms Xie. In this way, he would be able to ensure that any profits earned by that business from new work obtained after their departure were his alone.

135. [302]

     This conclusion is supported by the fact that Mr Xu registered, in May 2021, a company with a very similar name, Firmtech Aluminium Windows and Doors Pty Ltd (FAWD). The person whom Mr Xu recruited to run the Windows and Doors business was employed by this entity, and not by Firmtech. FAWD used the business name “Firmtech Aluminium” in correspondence and on invoices; used Firmtech’s logo; operated its business address from the Revesby Factory; used the domain “firmtechaluminium.com”; and issued a brochure describing its business, which referred to Firmtech’s past and existing projects. I deal further with the establishment of FAWD at paragraphs [402]-[411] below.

136. [303]

     Having regard to those matters, I find that it was Mr Xu’s intention that, following the completion of the agreed steps to separate the parties’ financial affairs (including the completion of current jobs), and following the departure of Mr Zhang and Ms Xie, Firmtech would cease to operate, and that FAWD would be the vehicle through which Mr Xu carried on the Windows and Doors Business from the Revesby Factory.

137. [304]

     Further, it is likely that Mr Xu intended:

     1. (1)

        that any contracts which were sought or obtained by Firmtech prior to Mr Zhang’s and Ms Xie’s departure from Firmtech would be performed by FAWD on behalf of Firmtech, for the benefit of Firmtech’s shareholders (consistently with the “Closing Down Calculations” which regarded current jobs as assets of Firmtech, and with Mr Xu’s queries to Mr Zhang and Ms Xie regarding the status of existing quotations, such as set out in paragraphs [368]-[373] and [398]-[400] below);

     2. (2)

        but that any new jobs which were sought and obtained after the departure of Mr Zhang and Ms Xie would be undertaken and performed by FAWD on its own account, for the benefit of Mr Xu alone (consistently with the parties’ intention that after the “closing down” steps were completed, each would be free to operate separate businesses on their own account).

138. [305]

     For reasons that will be outlined further below, Mr Xu’s conduct in taking those steps to establish FAWD, for the purpose of operating the “Firmtech” Windows and Doors Business after Mr Zhang’s and Ms Xie’s departure, was not equivalent to Mr Zhang’s and Ms Xie’s conduct in diverting work to Aluminum and Logikal prior to their departure. Whereas Mr Zhang and Ms Xie diverted work without Mr Xu’s (and therefore Firmtech’s) consent, before the steps to dismantle their business relationship with Mr Xu had been discussed, let alone completed, Mr Xu only established FAWD to take over Firmtech’s business in May 2021, at a point in time when the steps to separate their affairs were almost complete, and FAWD does not appear to have quoted for any projects before June 2021.

139. [306]

     In any case, there was no allegation in these proceedings that Mr Xu breached any duty to Firmtech by establishing FAWD or by causing it to quote for, and perform, work on any projects.

140. [307]

     Having regard to the evidence outlined above, I find that, at the meeting on 30 January 2021:

     1. (1)

        Mr Xu, Mr Zhang and Ms Xie agreed to separate their financial affairs and to “close down” the investments which they had made together (including not only the operation of a joint business endeavour through Firmtech, but also their investment in the Panania and Lansvale Properties);

     2. (2)

        Mr Xu, Mr Zhang and Ms Xie agreed that, in order for this result to be achieved:

     3. (3)

        the parties intended that, following the completion of these steps (which were expected to take around six months, that is, until around July 2021):

141. [308]

     Following the 30 January meeting, the parties commenced implementing those steps, including taking steps to sell the Lansvale and Panania Properties.

142. [309]

     Having regard to the evidence outlined above, I find Mr Zhang and Ms Xie did not inform Mr Xu at this meeting (or at any other time) that, prior to those steps being completed, they intended to perform work in competition with Firmtech’s Windows and Doors Business, through Ms Xie’s companies. Nor did they inform Mr Xu that, prior to the 30 January meeting, they had already been taking steps to obtain, and perform, various projects through Ms Xie’s companies, including projects for which Firmtech had previously quoted and projects for existing clients of Firmtech. Nor did they seek, or obtain, Mr Xu’s consent to any such course.

143. [310]

     Significantly, there were no WeChat messages exchanged between the parties in the months which followed, which referred to the parties operating, at that time, separate businesses, or which referred to any business other than Firmtech’s Windows and Doors Business operating from the Revesby Factory. Given the extent to which the parties communicated via WeChat, it would be expected that, if the parties had agreed and understood that, from 30 January 2021, separate businesses were operating from the Revesby Factory, there would have been at least some reference to this state of affairs in their extensive WeChat messages (such as some discussion about the arrangements for sharing the costs of the factory, employees and equipment).

144. [311]

     Mr Zhang and Ms Xie placed particular reliance on an exchange of WeChat messages on the Group Chat on 21 April 2021.

145. [312]

     The translation of this exchange on which Mr Xu relied was as follows:

146. [313]

     The translation of the exchange on which Ms Xie and Mr Zhang relied (which, in cross-examination, Mr Xu accepted to be an equally open translation of the Mandarin text) was as follows:

147. [314]

     Little turns on the tense in which the third message in this exchange is expressed. The intent is clear. In response to a request by Ms Xie for money, Mr Xu indicated that, in circumstances where the parties had agreed on, and already implemented, steps to separate their financial affairs (including the sale of the Panania Property, which had completed on the previous day), he was not going to advance her any more funds.

148. [315]

     If Mr Xu had understood that Ms Xie and Mr Zhang were running, and had been for a year running, a business in competition with Firmtech, he would likely have told her to look to that business for money. He did not do so.

149. [316]

     On no view had the parties completed their process of “separation” at the date of these WeChat messages (21 April 2021). Part of the agreed process of separation included the sale by Holdings of the Lansvale Property (which did not complete until May 2021) and the completion of the Aire Project to handover to the builder (which did not occur for several more months). Until this process of separation was complete, the parties remained engaged in their joint endeavour to operate Firmtech’s Windows and Doors Business for their mutual benefit.

150. [317]

     On 6 May 2021 (some two weeks after the “getting separated” / “have separated” message), the following exchange of WeChat messages occurred on the Group Chat:

151. [318]

     These messages reveal that Mr Xu was of the view that “separation” was not an outcome which had already been achieved, but a process which remained ongoing. Further, he was of the view that the parties would continue to have a business relationship and a mutual financial interest in the operation of Firmtech’s Windows and Doors Business, until the separation process was completed (and he therefore wanted to be involved in all decisions on expenditure). Neither Mr Zhang nor Ms Xie responded to those messages by saying that the separation process was already complete. Instead, Ms Xie indicated her agreement to Mr Xu’s request.

152. [319]

     For the reasons given above, Mr Xu (and therefore Firmtech) did not, prior to or at the 30 January 2021 meeting, give consent to Ms Xie and Mr Zhang operating another business in the aluminium windows and doors industry while they remained at Firmtech and continued to be responsible for running its Windows and Doors Business.

153. [320]

     From January to May 2021, Ms Xie and Mr Zhang continued to take steps to obtain for Aluminum and Logikal work of the type performed by Firmtech’s Windows and Doors Business.

154. [321]

     Some of the steps taken in that period have been outlined in respect of projects already addressed above: for example, the execution in February 2021 of the contract between Aluminum and Parkview Constructions for the Elara Shopping Centre, and the contract between Logikal and JWLand for the Founders Lane Project. Further, Aluminum continued to do work on its existing projects (such as the Campbell 5 Project).

155. [322]

     In addition, in the period from January to July 2021, Aluminum and Logikal quoted for, and obtained, a number of other jobs, some of which were jobs with existing clients of Firmtech, and some of which were jobs on projects for which Firmtech had previously issued quotations.

156. [323]

     Mr Xu gave unchallenged evidence that he was unaware of these matters. Mr Zhang and Ms Xie did not suggest in their affidavits that any consent was sought or obtained from Mr Xu in relation to any of the projects in question (except insofar as they contended that consent had been given, generally, to the operation of competing businesses at the 30 January meeting).

157. [324]

     In opening address, Counsel for the Zhang/Xie Parties acknowledged that, from the end of January 2021: “We were in competition with Firmtech, and there is no dispute about that.” Similarly, in closing address, Counsel for the Zhang/Xie Parties submitted that: “there is no doubt that on and after 30 January, my clients took the view that they were entitled to operate their own business in their own way, and to carry on the business that … at one time, they had carried on when they were directors of Firmtech”, but under the name of Logikal or Aluminum.

158. [325]

     A number of the main projects which Aluminum or Logikal sought or obtained in this period are outlined briefly below. At the time that each of these projects was sought and obtained by Aluminum or Logikal, Mr Zhang remained a director of Firmtech and Ms Xie remained the General Manager of Firmtech, and each of them remained responsible for running Firmtech’s Windows and Doors Business.

159. [326]

     The “Aire Project” was a development undertaken by Modco Construction Pty Ltd at 38 Atchison Street, Wollongong, New South Wales.

160. [327]

     On 13 November 2019, Mr Zhang issued, on behalf of Firmtech, a quotation for the supply of windows, doors, balustrades, louvres, screens and cladding for the Aire Project.

161. [328]

     On 21 January 2020, Firmtech entered into a contract with Modco for the supply and installation of glazing, windows, sliding glass doors, balustrades, screens and cladding at the Aire Project, for a contract price of $3.18m excluding GST. This contract was signed by Mr Zhang on behalf of Firmtech. Ms Xie was named as the “Project Contact (Main)”.

162. [329]

     Following the execution of this contract, Firmtech undertook work on the Aire Project.

163. [330]

     On 22 July 2020, Mr Toscano, who worked as a Project Manager for Firmtech, sent an email to Mr Cao, who was an employee of Firmtech, with the subject line “Modco – Logo’s”. There was no text in the body of this email. It attached a copy of Aluminum’s logo, including Ms Xie’s mobile number and gmail address.

164. [331]

     Each of Ms Xie and Mr Zhang denied instructing Mr Toscano to prepare this Aluminum logo for insertion in any documents for the Aire Project. However, it can be inferred that Mr Toscano acted on instructions in preparing this logo and attaching it to his email (since he had no role, or interest in, Aluminum), and the only persons who could have given instructions on behalf of Aluminum were Ms Xie or Mr Zhang (since it had no employees). It can also be inferred, from the subject line of the email, that Ms Xie or Mr Zhang instructed Mr Toscano to prepare and send this Aluminum logo, attached to an email headed “Modco – Logo’s”, so that it could be used in documents presented to Modco in relation to the Aire Project. That conclusion is supported by the fact that, a few weeks after email, Firmtech staff prepared drawings for the Aire Project which were sent to Modco in August 2020, and which included the Aluminum logo that had been attached to Mr Toscano’s email. A notation indicated that the drawings had been checked by Mr Zhang.

165. [332]

     Mr Zhang said that if he did check the drawings, he would have focused on the drawings themselves (rather than the logo), and that he did not notice this “mistake”. Ms Xie said that she was “confused” by what “the drafter” had done.

166. [333]

     However, for the reasons given above, I find that the insertion of Aluminum’s logo was not a “mistake” which was attributable to the “drafter” of the document, and instead that the logo was inserted in this drafting with the knowledge, and on the instructions, of Mr Zhang and Ms Xie. That conclusion is supported by the fact that, as the Plaintiffs noted in closing submissions, this was not an isolated incident, with the Aluminum logo also being inserted in drawings prepared by Firmtech staff for other projects around this time.

167. [334]

     These matters indicate that, prior to the 30 January 2021 meeting, Ms Xie and Mr Zhang intended to, and were taking steps to prepare to, divert the work on the Aire Project from Firmtech to Logikal.

168. [335]

     One of the current contracts which was specifically mentioned in the “Closing Down Calculations” which were sent by Mr Zhang to Mr Xu on 29 January 2021, was:

169. [336]

     The only project which Firmtech had with Modco was the Aire Project in Wollongong. The amount specified in the spreadsheet appears to be the remaining value of the contract for the Aire Project (either the value of the work yet to be completed or the amount of the contract sum yet to be received).

170. [337]

     Mr Zhang’s evidence was that on 30 January 2021 he told Mr Xu: “I am going to complete the current contracts”. Similarly, Ms Xie’s evidence was that Mr Zhang told Mr Xu he would “finish off the remaining jobs”, and that she told Mr Xu that Mr Zhang would “finish the [Aire Project] to handover to the builder”.

171. [338]

     These statements amounted to a representation to Mr Xu that, despite the parties’ agreement to separate their financial affairs and to close down Firmtech, Mr Zhang would continue to work on the Aire Project on behalf of and for the benefit of Firmtech, until that project was completed and handed over to the builder.

172. [339]

     Contrary to any such representation, Mr Zhang and Ms Xie instead took steps so that work on the Aire Project was diverted to Logikal.

173. [340]

     On 25 May 2021, Ms Xie sent an email to Modco, copied to Mr Zhang, attaching a quotation issued by Logikal for work on the Aire Project. In her email, Ms Xie stated: “We would like to tender this extra items under Logikal Façade Solution Pty Ltd. Understand that will cost you a lot more paper work to do, Sincerely apologize”.

174. [341]

     On 30 June 2021, Ms Xie sent an email from her Logikal email address to Modco, copied to Mr Zhang, stating as follows:

175. [342]

     On 1 July 2021, Modco wrote to Ms Xie, copied to Mr Zhang, stating that it would be necessary for there to be a new contract between Modco and Logikal “for future payments for works” on the Aire Project. On 6 July 2021, Modco sent a further email to Ms Xie, copied to Mr Zhang, stating that the “transition from Firmtech to Logikal is not a straightforward matter”. The email identified that, as at 2 July 2021, total payments of $2,562,485.70 (including GST) had been made to Firmtech, and continued as follows:

176. [343]

     As shown by this email, Logikal was, in effect, proposing to substitute itself in place of Firmtech on the Aire Project, while that job was in the process of being performed, and was proposing that all remaining payments in respect of the existing contract price, through to completion, be paid to Logikal instead of Firmtech.

177. [344]

     On the same date, Modco sent a further email to Ms Xie, copied to Mr Zhang, indicating that, in order to effect the transfer of the remainder of the project from Firmtech to Logikal, Modco would need a letter signed by the directors of both Firmtech and Logikal, confirming that Firmtech was not doing any further work on the site and that Logikal would complete the works. No such letter was prepared or executed. This was likely because one of the directors of Firmtech, Mr Xu, was unaware that this project was being diverted to Logikal, and Mr Zhang knew that Mr Xu would not consent to this occurring.

178. [345]

     On 16 July 2021, Ms Xie issued, on behalf of Logikal, a quotation for some further work on the Aire Project (that is, outside the scope of the existing contract), involving the installation of glazing, doors and louvres, in the amount of $250,000 (excluding GST).

179. [346]

     Logikal and Modco entered into a contract in relation to this additional work, which was executed by Ms Xie on behalf of Logikal and witnessed by Mr Zhang. The contract price was $250,000 excluding GST. The contract appears to have been prepared using, as a template, the previous contract between Modco and Firmtech, since it mistakenly maintains the date of that previous contract (namely, 21 January 2020).

180. [347]

     On 31 August 2021, Mr Xu and Ms Xie exchanged the following WeChat messages on the Group Chat:

181. [348]

     Mr Xu’s question about “wollongong” was a question about the Aire Project (which was the only project being undertaken by Firmtech in Wollongong). In asking this question, Mr Xu was plainly working on the basis that this project was being completed by, and for the benefit of, Firmtech. Ms Xie did not inform Ms Xu, in this exchange or otherwise, that Logikal had quoted for, obtained and was undertaking work on this project for Modco.

182. [349]

     On 6 October 2021, further WeChat messages were exchanged on the Group Chat, as follows:

183. [350]

     Shortly afterwards, on 19 October 2021, Ms Xie issued, on behalf of Logikal, another quotation for further work on the Aire Project in the amount of $27,000 (excluding GST).

184. [351]

     Mr Xu gave unchallenged evidence that he was unaware that work on the Aire Project was diverted from Firmtech to Logikal. Neither Ms Xie nor Mr Zhang gave evidence to the effect that they disclosed these matters to Mr Xu.

185. [352]

     In closing submissions, Ms Xie and Mr Zhang did not contend that they obtained Mr Xu’s (and therefore Firmtech’s) informed consent to the diversion of this work to Logikal, but submitted that the diversion occurred “after the parties had agreed to separate”.

186. [353]

     I have already addressed above the “agreement to separate”. Even if Mr Zhang’s and Ms Xie’s accounts of the 30 January 2021 meeting were accepted in full, there was no statement made to Mr Xu at that meeting to the effect that, while Mr Zhang and Ms Xie remained at Firmtech, they intended to divert work on any existing project from Firmtech to Aluminum or Logikal, nor did he agree to this occurring.

187. [354]

     Between 2018 and 2020, Firmtech had performed work on a number of projects being undertaken by Novati Constructions in New South Wales, including a project at St Augustine’s College in Brookvale, and the Dicker Data Facility in Kurnell.

188. [355]

     On 15 September 2020, Novati Constructions sent an email to Ms Xie at her Firmtech email address, inviting Firmtech to tender for the supply of aluminium windows and doors for a project being undertaken at St Dominic’s College, Kingswood, New South Wales (the “St Dominic’s College Project”). At the time this invitation was received, Firmtech was receiving substantial sums for completion of the Dicker Data Facility project (with two payments totalling $422,221.21 being received on 10 and 17 September 2020), and was tendering for additional work on that project, with a quotation being issued on 7 September 2020.

189. [356]

     On 5 October 2020, Ms Xie sent an email to Novati Constructions, which was copied to Mr Zhang. This email attached a quotation issued by Mr Zhang, on behalf of Firmtech, for the supply of aluminium windows and doors to the St Dominic’s College Project, in an amount of $621,370 (excluding GST).

190. [357]

     On 10 October 2020, Mr Zhang issued, on behalf of Firmtech, a revised quotation for this work in the amount of $651,148.80 (excluding GST).

191. [358]

     On 18 December 2020, Novati Constructions sent an email to Ms Xie at her Firmtech email address, informing her that Novati Constructions had recently been awarded the St Dominic’s College Project, and requesting a quotation for the supply and installation of aluminium windows and doors and external louvres.

192. [359]

     On 14 January 2021, Mr Zhang issued, on behalf of Firmtech, a revised quotation for the work on this project, in an amount of $673,348.80 (excluding GST). This was headed “Quotation No. 14012021 – St Dominic’s College_Rev01”.

193. [360]

     On 8 March 2021, Ms Xie issued, on behalf of Aluminum, a revised quotation for the same work, in the amount of $598,000 (excluding GST). Aluminum’s quotation used the same reference number as Firmtech’s previous quotation, with the revision number being changed: “Quotation No. 14012021 – St Dominic’s College_Rev03”. (It is unknown whether “Rev02”, presuming it existed, was issued by Firmtech or Aluminum.) In cross-examination, Mr Zhang’s explanation for this quotation being issued by Aluminum instead of Firmtech was that it was issued “after we separate”.

194. [361]

     On 15 March 2021, Novati Constructions sent an email to Ms Xie at her Firmtech address, stating that it was “great to have you working on another Novati project and to continue the strong working relationship”. Aluminum had not previously worked for Novati Constructions (although, as noted above, Firmtech had). Ms Xie responded the following day, offering a discount of the project cost to $585,000 excluding GST, and stating: “We really appreciate you giving us another opportunity to work for Novati”.

195. [362]

     In April 2021, Ms Xie and Mr Zhang began using a Logikal email address in communications with Novati Constructions. In cross-examination, Mr Zhang agreed that he was concerned that particular builders and suppliers could confuse Firmtech and Aluminum, and that this was one of the reasons why they began using Logikal.

196. [363]

     On 13 July 2021, Mr Zhang sent an email to Novati Constructions, from his gmail address, attaching an “updated quote” for the St Dominic’s College Project. The “updated quote” was in the same amount as the previous quotation, but was now issued by Ms Xie in the name of Logikal.

197. [364]

     On around 19 July 2021, Novati Constructions and Logikal entered into a contract in respect of the St Dominic’s College Project for a contract price of $585,000 (excluding GST). The contract was executed by Ms Xie as director of Logikal, and witnessed by Mr Zhang.

198. [365]

     Mr Xu gave unchallenged evidence that he was not aware of these matters. Neither Mr Zhang nor Ms Xie gave any evidence to the effect that they disclosed to Mr Xu that this project was being diverted from Firmtech to either Aluminum or Logikal.

199. [366]

     On 16 August 2019, Mr Zhang issued, on behalf of Firmtech, a quotation for the supply and installation of aluminium windows and doors for a project in Bankstown which is described in the evidence as the “Spring Square Project”. The quotation was issued to “Poly (Australia)”, and was in a total amount of more than $8m (excluding GST).

200. [367]

     Mr Xu gave unchallenged evidence that, in around September 2019, he attended a meeting with a representative of Poly Global, at which he “attempted to informally tender” for the Spring Square Project on behalf of Firmtech. The Poly Global representative said words to the effect that Poly Global would consider Firmtech for this job.

201. [368]

     On 25 May 2021, the following WeChat messages were exchanged on the Group Chat:

202. [369]

     There are several aspects of this exchange which are significant.

203. [370]

     First, Mr Xu was seeking information and updates from Mr Zhang and Ms Xie regarding quotations which had previously been issued by Firmtech. That is inconsistent with any understanding, on his part, that those were opportunities for work which Mr Zhang and Ms Xie were free to divert to, and pursue through, Aluminum and Logikal. Instead, it is consistent with an understanding on his part that he, Mr Zhang and Ms Xie had a shared interest in pursuing and obtaining any projects for which Firmtech had already issued quotations.

204. [371]

     Secondly, neither Ms Xie nor Mr Zhang responded to Mr Xu’s query by stating that there was no basis for him to be making this request, since they had agreed that Firmtech would not be taking on any further contracts. Instead, Mr Zhang replied “Let’s communicate on the quoted projects”, while at the same time he and Ms Xie suggested that Firmtech had little prospect of being awarded this work (“The earlier quotations are basically too old” / “there is not much hope”).

205. [372]

     Thirdly, the responses given to Mr Xu’s queries were misleading, since Ms Xie and Mr Zhang did not disclose that a number of jobs in respect of which Firmtech had issued quotations had, by the date of this exchange, already been diverted to Logikal or Aluminum. For example, in this exchange on 25 May 2021, Ms Xie stated that there was “only one” quotation which Firmtech has sent, which was “for the Novati tender”. This was likely a reference to the St Dominic’s College Project, for which Firmtech had issued a quotation to Novati Constructions in January 2021. However, Ms Xie did not disclose to Mr Xu that this quotation had been superseded by a revised quotation which was issued by Aluminum in March 2021.

206. [373]

     Fourthly, Mr Xu’s reference to the “Poly project” at “bankstown” was a reference to the Spring Square Project, as Ms Xie acknowledged in cross-examination. Mr Xu was plainly interested in knowing whether there remained a prospect of Firmtech obtaining this project. In her response, Ms Xie suggested both that the opportunity of obtaining work on the Spring Square Project had probably passed (stating the quotation was issued by Firmtech “a long time ago”), and that she had no idea as to the status of this project (“They might have already started the installation”).

207. [374]

     On 26 May 2021, the day after Ms Xie sent those messages, she received an invitation to attend a “Firmtech Tender Meeting” in relation to “Spring Square” on 27 May 2021, at the site of the Spring Square Project. In cross-examination, Ms Xie stated that she had had been in discussions with a representative of the developer about the Spring Square Project for around a month before this meeting (that is, from late April 2021).

208. [375]

     It follows that Ms Xie misled Mr Xu when she suggested in her WeChat messages on 25 May 2021 that she had no idea about the current status of the Spring Square Project.

209. [376]

     On 27 May 2021, Mr Toscano sent a message to the developer of the Spring Square Project from a “firmtechgroup.com.au” email address, stating as follows:

210. [377]

     Mr Toscano’s email signature was “Kane Toscano, Firmtech”, and included the Firmtech logo. Mr Toscano’s email was copied to Ms Xie and Mr Zhang at their “firmtechgroup” email addresses.

211. [378]

     Despite those references to “Firmtech” in Mr Toscano’s email, Ms Xie gave evidence that she attended the meeting regarding the Spring Square Project, and Mr Toscano sent this email, on behalf of Aluminum, rather than Firmtech.

212. [379]

     When Ms Xie was taken to Mr Toscano’s message in cross-examination and asked why she did not tell Mr Xu about this meeting regarding the Spring Square Project in the course of the WeChat messages exchanged on 25 May 2021, she responded: “I didn’t because we separated”.

213. [380]

     If Ms Xie was of the state of mind as at 25 May 2021 that Mr Xu had agreed that Firmtech would not take on any further work, it would have been a simple matter to respond to Mr Xu’s queries about the Spring Square Project by saying so. There would have been no reason to respond in the terms that she did, which suggested that they continued to have a shared interest in obtaining work, though little prospect of doing so in the case of the Spring Square Project. Her response to his queries about this project are instead consistent with Ms Xie taking steps, without Mr Xu’s knowledge, to divert work from Firmtech to her own companies.

214. [381]

     On 15 June 2021, Mr Toscano sent a further email to the developer of the Spring Square Project, copied to Ms Xie and Mr Zhang, with the subject line: “Poly-Spring Square – Firmtech Final Pricing updated 15 06 2021”. In his email, Mr Toscano stated: “As you will see we have adjusted our pricing structures in the hope of starting this business relationship with Westbourne”. This email attached a quotation which was issued by Ms Xie in the name of Aluminum, marked “Rev09”. The quotation was for the supply of residential apartment windows and doors, and was in the amount of $5,733,772.23 excluding GST.

215. [382]

     Mr Zhang was asked about this quotation in cross-examination. He acknowledged that Aluminum’s quotation made use of work which Firmtech had done in relation to the Spring Square Project. He also acknowledged that Aluminum’s quotation was sent at a time when he was still a director of Firmtech. However, he said that by the time this was issued, Firmtech did not have the capacity to perform this project because “Firmtech was coaching [closing] down”. Again, if Mr Zhang was of the view as at 25 May 2021 that Firmtech had no interest in, or capacity to perform, the Spring Square Project, it was a simple matter for him to say so when Mr Xu asked him about the status of the project. He did not. Instead, he responded to Mr Xu by stating that Firmtech had “already quoted” for this project, but that there was “not much hope” of obtaining it. In giving that response, Mr Zhang misled his fellow director of Firmtech regarding the status of the project, while at the same time pursuing this opportunity for the benefit of his wife’s company.

216. [383]

     On 28 June 2021, Ms Xie sent an email to Westbourne with the subject line “Poly-Spring Square – Firmtech price update 28.06.2021”. She expressed her gratitude for “the opportunity to work with Westbourne”, and provided revised pricing. She signed this email as “Yan Xie / Director, Firmtech”. The reference to her being a “Director”, and the fact that the previous quotation was issued by Ms Xie on behalf of Aluminum, indicates that this email was also sent on behalf of Aluminum rather than Firmtech.

217. [384]

     On 14 July 2021, Westbourne and Aluminum entered into a Subcontract for the Spring Square Project, which was executed by Ms Xie as director of Aluminum. Although Firmtech’s name appears in the description of the parties on the first page of the subcontract, this is a typographical error. The agreement refers to Aluminum’s ACN, and the front page and execution page of the subcontract both refer to Aluminum.

218. [385]

     From around August 2021, Aluminum commenced issuing invoices to Westbourne in respect of this project.

219. [386]

     On 24 March 2022, Westbourne and Aluminum entered into a Deed of Variation in relation to the Spring Square Project which, inter alia, increased the contract price from $5.83m to $6.33m.

220. [387]

     On 29 January 2024, Westbourne and Aluminum entered into a deed of release in relation to the Spring Square Project. This deed records: an initial subcontract value of $5.83m; variations totalling $1,021,042.44, resulting in an amended contract sum of $6,851,042.44; the payment of $6,165,305.42 by Westbourne to Aluminum; and a further amount of $343,644.90 being payable to Aluminum (with the balance of $342,092.12 being held as Retention).

221. [388]

     Mr Xu gave unchallenged evidence that he was not aware of the contract between Aluminum and Westbourne for the Spring Square Project at the time it was entered, but only learned of it later. Neither Mr Zhang nor Ms Xie gave any evidence to the effect that they informed Mr Xu that Aluminum was tendering for this project, or that they sought or obtained his (and therefore Firmtech’s) consent to their doing so.

222. [389]

     In closing written submissions, Mr Zhang and Ms Xie submitted that “there could be no diversion [of work on the Spring Square Project] given that the relevant quotations and contract post-date the date the parties separated”. I have addressed the question of the separation agreement above. Further, the messages of 25 May 2021 are inconsistent with this submission.

223. [390]

     There are various other projects which were sought, or obtained, by Aluminum and Logikal during the period through to around July 2021, and which are the subject of admissions in the pleadings.

224. [391]

     These include a project at Block 1, Section 38, Wright, Australian Capital Territory, for ORA Constructions Pty Ltd and PK Nominees ACT Pty Ltd (ASOC, [110N]-[110O]; Defence, [110N]-[110O]). This was referred to in submissions as the “Koko Molongo” Project.

225. [392]

     On 27 April 2019, Mr Zhang asked an employee of Firmtech, Ms Pargain, to organise a quotation for this project. On 18 February 2021, Logikal issued a quotation for this same project. The amount quoted was $2.3m-$2.5m excluding GST. This quotation was issued less than three weeks after the 30 January 2021 meeting with Mr Xu.

226. [393]

     Logikal performed the Koko Molongo Project and received payments from August 2021 onwards. It issued invoices in respect of this project which totalled in excess of $3.1m (excluding GST).

227. [394]

     Mr Xu gave unchallenged evidence that he was not aware that Logikal was undertaking the Koko Molongo Project until he reviewed the documents produced by the Zhang/Xie Parties in these proceedings.

228. [395]

     The following smaller projects were also the subject of admissions on the pleadings.

     1. (1)

        In around December 2020 or January 2021, Logikal tendered for the design, supply, fabrication and installation of glass doors and windows for a project at 55 Lancaster Street, Ingleburn, New South Wales (the Ingleburn Project). On around 2 March 2021, Logikal entered into a Subcontractor Agreement with Vbuild Pty Ltd in relation to the Ingleburn Project. On around 23 March 2021, Logikal provided a further quotation in relation to this project. Logikal performed work on the Ingleburn Project, and received payments from Vbuild from around June 2021 onwards (ASOC [104A]-[104D]; Defence [104A]-[104D]).

     2. (2)

        In 2021, Logikal supplied and installed aluminium windows and doors for a project being developed by JWLand at 45 Ainslie Avenue, Canberra, Australian Capital Territory, with invoices being issued from around April 2021 onwards (ASOC, [110L]; Defence [110L]).

     3. (3)

        On or before 28 July 2021, Logikal supplied and installed aluminium windows and doors to a project being developed by CB Wildes Pty Ltd at 121-123 Haig Street, Maroubra, New South Wales (ASOC, [110M]; Defence [110M]).

     4. (4)

        In around May 2021, Logikal supplied and installed aluminium windows and doors to another project being developed by CB Wildes at 25 Ney Street, Mascot, New South Wales (ASOC, [110P]; Defence [110P]).

     5. (5)

        In around June 2021, Logikal supplied and installed aluminium windows and doors to another project being developed by CB Wildes at 32 Picton Street, Mascot, New South Wales (ASOC, [110R]; Defence [110R]).

229. [396]

     When these projects were sought, and obtained, by Aluminum and Logikal, Mr Zhang remained a director of Firmtech and Ms Xie remained its General Manager, and each remained responsible for operating Firmtech’s Windows and Doors Business.

230. [397]

     There was no evidence from Ms Xie or Mr Zhang to the effect that any of these projects was disclosed to Mr Xu.

Events from April 2021 onwards

1. [398]

   In April and May 2021, Mr Xu was seeking to understand the financial position of Firmtech and to obtain information from Ms Xie and Mr Zhang about Firmtech’s existing contracts and quotations. For example, Mr Xu sent the following WeChat messages to Ms Xie and Mr Zhang on the Group Chat:

   1. (1)

      on 21 April 2021: “I need to calculate the expenses and incomes of all the projects of the aluminium”;

   2. (2)

      on 6 May 2021: “I need to review any expenditures made by the company”;

   3. (3)

      on 24 May 2021: “How much remains uncollected from the C5 [Campbell 5] project?” and “how much money was spent on C5, count it too” (see paragraph [122] above); and

   4. (4)

      on 25 May 2021, “make a list of the projects that the company has already sent quotations for” and “Send me a copy of the quotations as well” (see paragraph [368] above).

2. [399]

   When Mr Zhang was taken to the last of these messages in cross-examination, he acknowledged that this was one of many requests that Mr Xu made around this time for information about quotations. These requests went unanswered.

3. [400]

   When Ms Xie was asked why she did not comply with Mr Xu’s request for information regarding quotations issued by Firmtech, she responded: “for the quotation list related to Firmtech, he can have access in the computer in the office, that’s why I didn’t provide … because he has the capability to produce a list by himself”. Of course, any such list of Firmtech’s own quotations would have not have any quotations issued by Aluminum or Logikal. It would therefore not have revealed that, for example, Aluminum had quoted in March 2021 for the St Dominic’s College Project for which Firmtech had previously quoted in January 2021 (see paragraphs [354]-[365] above).

4. [401]

   Further, although Ms Xie suggested that Mr Xu could have made his own enquiries regarding Firmtech’s financial position in around late May 2021, Mr Xu deposed that:

   1. (1)

      in about May 2021, he discovered that he could no longer access the email address accounts@firmtechaluminium.com.au, as the password was changed. Mr Xu had established this email account in May 2018 and had frequently accessed it since that time;

   2. (2)

      on around 19 May 2021, the administrative contact details for the Firmtech Domain were changed. In June 2021, Mr Xu tried to access the web hosting account for the Firmtech Domain, and discovered that the password had been changed;

   3. (3)

      in around May 2021, Mr Xu discovered that folders and documents were missing from the Firmtech’s Shared Drive, which stored documents such as contracts, reports, drawings, quotations and notes for Firmtech projects; and

   4. (4)

      in around June 2021, Mr Xu found that he could no longer access Firmtech’s MYOB accounts, as the password had been changed.

5. [402]

   On 7 May 2021, Mr Xu incorporated FAWD. He gave evidence that he did so as a result of having his access to Firmtech’s financial records removed.

6. [403]

   However, as the dates set out above indicate, Mr Xu was only excluded from access to various records and electronic databases from around the time that FAWD was created at the start of May 2021, not prior to its creation. In his affidavit of August 2022, Mr Zhang accepted that he closed down access to the “accounts@firmtechaluminium.com.au” email address, but explained that he only did so when he learned that FAWD had been established.

7. [404]

   Mr Xu deposed that he established FAWD for the following reasons:

8. [405]

   I accept that Mr Xu established FAWD because he wanted to continue the Windows and Doors Business which was being operated by Firmtech.

9. [406]

   However, I do not accept that the incorporation of FAWD was a defensive step, taken in reaction to his effective exclusion from the management of Firmtech, with the intention that he could use this entity as a vehicle to manage Firmtech’s business, and with the aim that, once the issues regarding access to Firmtech’s records were resolved, he could “merge” the business of FAWD back into Firmtech.

10. [407]

    There was no articulation by Mr Xu of what this “merger” would involve. It is inherently unlikely that Mr Xu intended that, at some point in time after Mr Zhang had left Firmtech, any new jobs which had been obtained by FAWD (which Mr Xu wholly owned) would be transferred to Firmtech (in which he and Mr Zhang were equal shareholders). This would have involved sharing profits on those jobs with a former partner who had left the business, who had made no contribution to obtaining or performing those jobs, and who was instead working on other projects in the same industry for his own benefit.

11. [408]

    In around March 2021, Mr Xu searched for a new manager to run the Windows and Doors Business, and interviewed Mr Tsako for this role. There is no evidence that Mr Xu ever consulted his fellow director and shareholder, Mr Zhang, about Mr Tsako being employed by Firmtech. Nor was there evidence of any communication with Mr Tsako in which Mr Xu referred to a position with Firmtech. Instead, Mr Tsako was employed by FAWD. There was no evidence he was ever offered any other role.

12. [409]

    From the time that it commenced business, FAWD operated under the “Firmtech” name. In June 2021, Mr Tsako sent out emails from a Firmtech address, which included, in his email signature, Firmtech’s name, Firmtech’s logo and Firmtech’s web address. Ms Tsako also described himself in emails around this time as Firmtech’s General Manager.

13. [410]

    These matters support a conclusion that Mr Xu intended to use FAWD as the vehicle which would operate the Windows and Doors Business after Mr Zhang and Ms Xie departed Firmtech, and that he recruited Mr Tsako to head up this entity. Mr Xu’s conduct was consistent with the following statement that (according to Mr Zhang) Mr Xu had made to Mr Zhang in January 2021: “If we aren’t going to continue, I will find a project manager to run my own business”.

14. [411]

    For reasons which I have given above, Mr Xu likely intended that any jobs which Firmtech had sought and obtained prior to Mr Zhang’s and Ms Xie’s departure would be performed by FAWD on behalf of Firmtech (with any profits being for the benefit of Firmtech’s shareholders, namely, Mr Xu and Mr Zhang), while any jobs which were sought and obtained after their departure would be performed by FAWD on its own account (with any profits being for the benefit of Mr Xu alone).

15. [412]

    Shortly after Mr Xu established FAWD for the purpose of operating the Windows and Doors Business, he took control of another company, Auscon Global Pty Limited. On 20 May 2021, Mr Xu became the sole director and secretary of this entity, when he took over those roles from his brother. Mr Xu also became Auscon’s sole shareholder later in 2021. In addition, Mr Xu, who held a construction licence, became nominated supervisor under Auscon’s building licence. Mr Xu acknowledged that from around October 2021, Auscon began performing construction work. Mr Xu stated, when referring to the commencement of Auscon’s construction business, that: “Firmtech Construction is already – at that time, it expire, I think”.

16. [413]

    It is likely that Mr Xu took control of Auscon with the intention that, following the completion of the steps agreed at the 30 January meeting and the departure of Mr Zhang and Ms Xie from Firmtech, he would perform new construction jobs through this entity, which became wholly owned by him, rather than through Firmtech, 50% of which was owned by Mr Zhang.

17. [414]

    In summary, Mr Xu took steps in May 2021 so that any new jobs within the two lines of business which Firmtech had operated up until that time – namely, its Windows and Doors Business and its construction business – would be performed through entities (FAWD and Auscon) of which he was the sole owner and controller.

18. [415]

    There is no claim by Mr Zhang and Ms Xie that Mr Xu breached his duties to Firmtech by operating those businesses through FAWD and Auscon in the circumstances outlined above.

19. [416]

    Mr Zhang’s evidence that he closed Mr Xu’s access to Firmtech’s email on learning that Mr Xu had established FAWD is difficult to reconcile with Mr Zhang’s own account of events.

20. [417]

    On Mr Zhang’s account, the parties had reached an agreement in late January 2021 that they could share the Revesby Factory and facilities to conduct competing businesses. By May 2021, Ms Xie had, for a number of months, been using Firmtech’s email address, name and logo to conduct business on behalf of Aluminum. If the parties had reached an agreement allowing them to compete from end of January 2021, sharing premises and resources, it is difficult to see why Mr Zhang would object to FAWD’s business being conducted in a similar way.

21. [418]

    Instead, having regard to the evidence that various requests by Mr Xu for information about Firmtech’s business went unanswered, and that Mr Zhang and Ms Xie were diverting business opportunities from Firmtech to their own companies without Mr Xu’s knowledge, it is more likely that Mr Zhang’s decision to close off Mr Xu’s access to the Firmtech email and domain, and to its MYOB accounts, was because he and Ms Xie were taking steps to ensure that Firmtech’s business was diverted to Aluminum and Logikal and he did not want Mr Xu to discover that this was occurring or the extent to which it had occurred. That conclusion is consistent with the fact that, around the time that access to the email was closed off, Mr Xu was being given misleading responses to his requests for information about quotations which had been issued by Firmtech (see paragraphs [368]-[382] above).

22. [419]

    On 2 July 2021, Mr Xu’s solicitors wrote to Mr Zhang and Ms Xie, stating that Mr Xu had been “excluded from contact with the company website and associated emails” and that Firmtech’s “financial transactions are not being conducted with the knowledge of [Mr Xu]”. The letter further stated that Mr Xu was “aware that you are using the premises and employees at [the Revesby Factory] for projects not associated with Firmtech” and stated that, if Ms Xie and Mr Zhang wished to do so, “appropriate arrangements need to be made”.

23. [420]

    When Mr Zhang and Ms Xie were taken to this letter in cross-examination, each of them gave evidence that Mr Xu had previously agreed to share the Revesby Factory, and must have “changed his mind”. However, as I have addressed above, no consent was sought or obtained, even on the evidence of Mr Zhang and Ms Xie, for them to use the Revesby Factory to operate an aluminium windows and doors business in competition with Firmtech.

24. [421]

    The then solicitors for Mr Zhang and Ms Xie, Piper Alderman, responded to this letter on 15 July 2021. Each of Mr Zhang and Ms Xie acknowledged that they gave instructions on this letter, reviewed it, and was confident it was accurate.

25. [422]

    Significantly, the letter did not contain any statement that Mr Xu had agreed that no new jobs would be undertaken by Firmtech after 30 January 2021, or that any existing jobs or clients of Firmtech, or any opportunities for new work, could be diverted to Aluminum or Logikal.

26. [423]

    The letter did state that Mr Xu had agreed to the Revesby Factory “being used for projects not associated with [Firmtech]”, but it did not specify precisely what was said to have been agreed in this regard (or what Mr Xu was said to have been told about these “projects”). Further, the letter asserted that Mr Zhang and Ms Xie had been continuing to devote their efforts to the success of Firmtech: “The reality is that our clients have been working incredibly hard and very long hours and effectively doing everything themselves in terms of running and managing [Firmtech’s] business”.

27. [424]

    The letter concluded with the following proposal:

28. [425]

    Mr Xu did not accept this invitation, and no such meeting took place.

29. [426]

    The letter from Mr Xu’s solicitors of 2 July 2021 had included a demand that Mr Zhang inform his fellow director, Mr Xu, of “all projects which are associated with all transactions for [Firmtech] over the past two years”, provide a “list of all project contract[s] entered into by [Firmtech] over the past two years together with a copy of each contract”, and provide a “list of all jobs for which [Firmtech] has tendered over the past two years together with all quotations issued” by Firmtech. In cross-examination, each of Mr Zhang and Ms Xie accepted that they did not provide Mr Xu with the material sought in this letter.

30. [427]

    Mr Xu continued to seek this material from his fellow director, without success. For example, in late October 2021, Mr Xu posted the following WeChat messages on the Group Chat:

31. [428]

    In July 2022, Mr Xu commenced the Principal Proceeding.

Claim for breach of contract

1. [429]

   Mr Xu contended that it was an express term of his pre-incorporation contract with Mr Zhang and Ms Xie that Ms Xie take all steps necessary to ensure that Aluminum did not operate a business in competition with Firmtech, and that this term was breached. For the reasons set out at paragraphs [54]-[73] above, I have determined that there was no such express term.

2. [430]

   In addition, Mr Xu contended that Ms Xie and Mr Zhang breached implied terms of their pre-incorporation contract. Those implied terms were pleaded as follows (ASC [30]):

3. [431]

   Ms Xie and Mr Zhang denied that their agreement with Mr Xu included any of those implied terms. In particular, they contended that the criteria for the implication of contractual terms were not satisfied, referring to BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 283 and Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 345-347; [1982] HCA 24.

4. [432]

   In response, Mr Xu submitted that the implied terms are entirely orthodox, referring to the following passage from the decision of Whelan JA and Riordan AJA in Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 201 at [106], [116]-[117]:

5. [433]

   There is an element of repetition and overlap in the implied terms as pleaded by Mr Xu. I accept that the agreement between Mr Xu, Ms Xie and Mr Zhang included an implied term, consistently with Mackay v Dick (1881) 6 App Cas 251 at 263-264 and Butt v McDonald (1896) 7 QLJ 68 at 70-71, that the parties would co-operate and do all such things as were necessary to enable the other party to have the benefit of the contract, and an implied term not to hinder or prevent the fulfilment of the express promises in the contract.

6. [434]

   Accordingly, in considering whether the implied terms were breached, it is necessary to have regard to the express promises in the contract. The express terms of the contract were as follows (see paragraph [51] above):

   1. (1)

      Firmtech was to be established to pursue an aluminium windows and doors business;

   2. (2)

      Mr Xu would contribute at least $500,000 in capital to establish the aluminium and window business that was to be conducted by Firmtech;

   3. (3)

      Mr Xu would advance up to $1,000,000 (or, on the Zhang/Xie Parties’ case, $1,500,000) in further funds to Firmtech if required, though such amounts would be by way of a loan to be repaid;

   4. (4)

      Firmtech would have a 50/50 share structure, with Mr Xu holding 50% of the shares and Mr Zhang holding 50% of the shares;

   5. (5)

      Mr Xu and Mr Zhang would be the directors of Firmtech;

   6. (6)

      Ms Xie would be the General Manager and would handle quotations and sales;

   7. (7)

      Mr Zhang would run the factory and would handle manufacturing and installation of aluminium and glass products on site; and

   8. (8)

      if a dispute arose about the manufacturing, production or the technical side of the business, Mr Xu would defer to Mr Zhang and if a dispute arose about finances, Mr Zhang would defer to Mr Xu.

7. [435]

   The express promises in paragraphs (2)-(3) were obligations imposed on Mr Xu. The express promises in paragraphs (1) and (4)-(8) related to the establishment of Firmtech and the structure to be adopted upon its establishment for the conduct of its Windows and Doors Business. Firmtech was established in May 2018 and the agreed structure was put in place at that time. There was no explanation by Mr Xu as to how any conduct by Mr Zhang or Ms Xie from 2019 onwards prevented or hindered the fulfilment of those express promises.

8. [436]

   Instead, the claim that there was a breach of the implied terms was largely dependent on the contention that there was an additional, express term to the effect that Ms Xie would ensure that Aluminum would not compete with Firmtech (which I have found not to be established).

9. [437]

   For those reasons, I find that Mr Xu’s claim for breach of contract has not been established.

Claim for breach of statutory and fiduciary duties owed to Firmtech

1. [438]

   Mr Zhang and Ms Xie accepted in opening submissions that they owed fiduciary duties to Firmtech in their capacities as, respectively, a director and an employee of Firmtech.

2. [439]

   The nature of fiduciary obligations is “proscriptive … – not to obtain any authorised benefit from the relationship and not to be in a position of conflict”: Breen v Williams (1996) 186 CLR 71 at 113; [1996] HCA 57.

3. [440]

   In Pilmer v Duke Group Limited (in liq) (2001) 207 CLR 165; [2001] HCA 31, McHugh, Gummow, Hayne and Callinan JJ quoted (at [74]) the above statement from Breen v Williams at 113, and commented as follows (at [78]):

4. [441]

   While every employee owes fiduciary obligations to his or her employer, the scope of the fiduciary obligations owed by any particular employee depends upon the role, functions and responsibilities of that employee.

5. [442]

   As the Court of Appeal explained in Anderson v Canaccord Genuity Financial Ltd [2023] NSWCA 294 at [152], the “scope” of fiduciary obligations refers to the scope, or subject matter, of the area within which the fiduciary is not free to act self-interestedly (citing Birtchnell v Equity Trustees, Executors & Agency Co Ltd (1929) 42 CLR 384 at 407 per Dixon J; [1929] HCA 24). The Court of Appeal referred with approval (at [158]) to the following passage in Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296; [2012] FCAFC 6 at [143] (Finn, Stone and Perram JJ):

6. [443]

   In the present case, Ms Xie was Firmtech’s General Manager and was responsible for running its Windows and Doors Business. In particular, she was responsible for tendering for work, putting together and issuing quotations, and negotiating the terms of contracts for new projects. It follows that she was, when performing those roles, under an obligation, without informed consent, not to promote her personal interests by making or pursuing a gain, in circumstances where there was a conflict or real or substantial possibility of a conflict between her personal interests and Firmtech’s interests.

7. [444]

   Mr Zhang and Ms Xie acknowledged that:

   1. (1)

      as a director, Mr Zhang owed Firmtech the duties provided for in ss 180, 181 and 182 of the Act; and

   2. (2)

      as an employee, Ms Xie owed Firmtech the duties provided for in s 182 of the Act.

8. [445]

   In addition, Mr Xu and Firmtech pleaded that Ms Xie was an officer of Firmtech within the meaning of that term as defined in s 9 of the Act (and, in particular, within paragraph (b) of that definition) and, as such, owed duties under ss 180, 181 and 182 of the Act.

9. [446]

   At all material times, s 9 of the Act defined an “officer” of a corporation as meaning, relevantly:

10. [447]

    In Shafron v Australian Securities and Investments Commission (2012) 247 CLR 465; [2012] HCA 18, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ made a number of observations regarding the definition of “officer” in s 9, including that:

    1. (1)

       those persons identified in paragraph (b) of the definition are identified by what they do (subparagraph (i)), what capacity they have (subparagraph (ii)) or what influence on the directors they have had and continue to have (subparagraph (iii)) (at [25]);

    2. (2)

       there being these differences between paragraph (b) of the definition and the other paragraphs (especially paragraph (a)), it is not to be supposed that persons falling within subparagraph (b)(i) must be in substantially the same position as directors (at [25]);

    3. (3)

       subparagraph (b)(i) distinguishes between making decisions of a particular character and participating in making those decisions. The notion of “participation” directs attention to the role that a person has in the ultimate act of making a decision, even if that final act is undertaken by some other person or persons. The notion of participation in making decisions presents a question of fact and degree in which the significance to be given to the role played by the person in question must be assessed (at [26]); and

    4. (4)

       participation in any decision of a corporation does not make a person an “officer”. Rather, the decisions in which the person participates must have the significance for the business of the corporation that the statute prescribes (that is, “decisions that affect the whole, or a substantial part, of the business of the corporation”). Whether a person participates in making decisions of a particular character requires examination of what contribution that person makes to the making of a decision (at [27]).

11. [448]

    As for subparagraph (b)(ii) of the definition of “officer”, the Full Court in Grimaldi at [73] observed that:

12. [449]

    In Australian Securities and Investments Commission v King (2020) 270 CLR 1; [2020] HCA 4 at [53]-[59], Kiefel CJ, Gageler and Keane JJ referred with evident approval to this passage from Grimaldi. Their Honours said at [58] that:

13. [450]

    In ASIC v King at [88], Nettle and Gordon JJ commented that:

14. [451]

    Their Honours continued (at [91]) that:

15. [452]

    On 15 May 2018, several days before Firmtech was registered, the following WeChat messages were exchanged on the Group Chat:

16. [453]

    As this exchange reveals, each of Mr Xu and Ms Xie understood that Ms Xie would be making decisions for Firmtech. Mr Xu proposed making Ms Xie a director in order to facilitate this (“Making it easier for you to sign”). She instead suggested that Mr Zhang be appointed director. This was not because he, rather than she, would be making decisions. Instead, it was because of perceived discrimination against women in the building industry. It was a move which, in Ms Xie’s own words, was only being taken “externally”. It would not affect the internal operations of Firmtech. Her statement that “Many matters can be authorised” is, when read in context, a statement that she, although not a director, could be given authority within Firmtech to perform most managerial functions.

17. [454]

    In his affidavit, Mr Zhang described himself and Ms Xie as sharing responsibility for the management of Firmtech’s business:

18. [455]

    In her role as General Manager, Ms Xie participated with Mr Xu and Mr Zhang in the making of decisions regarding the business of the corporation. For example, she participated in the meeting of 30 January 2021 and in the decisions made at that meeting regarding the closing down of Firmtech, and the steps and timeline required to achieve this result.

19. [456]

    Further, by her role as General Manager, and in particular, by reason of her responsibility for tendering for new projects, determining pricing for new projects, and negotiating contracts for new projects, as well as by her role in dealing with suppliers and managing cash flow, Ms Xie had the capacity to significantly affect Firmtech’s financial standing.

20. [457]

    For those reasons, I am satisfied that Ms Xie was an officer of Firmtech, and therefore, like Mr Zhang, owed duties to Firmtech pursuant to ss 180, 181 and 182 of the Act.

21. [458]

    The principles applicable to those provisions were recently summarised by Black J in Alora Davies Developments 104 Pty Ltd (in liq) v Raphael [2024] NSWSC 547 at [139]-[142]. I do not repeat that summary here.

22. [459]

    In Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43 at [67] to [70], Gageler J explained that the duty of loyalty is imposed, in equity, on fiduciaries “by means of two overlapping ‘proscriptive obligations’”, observing as follows (footnotes omitted):

23. [460]

    One well-established application of the “conflict rule” and the “profit rule” is that a director or senior employee of a company is precluded from obtaining for themselves or another person any property or business advantage belonging to the company, including commercial opportunities that the company is actively pursuing, or opportunities in which the company might reasonably be expected to be interested given its current line of business.

24. [461]

    In Cook v Deeks [1916] 1 AC 554, the plaintiff and the three defendants together owned and operated a railway company. The three defendants came to the view, apparently with some justification, that the plaintiff was an unsatisfactory business associate. The Privy Council observed that “the entire management of the company, so far as obtaining and executing contracts in the east was concerned, was in [the defendants’] hands, and, indeed, it was in part this fact which was one of the causes of their disagreement with the plaintiff”. The Privy Council held that, while the defendants had good reason to want to end their relationship with the plaintiff, the defendants breached their duties to the company by using their position to divert opportunities from the company to another company which they had established (at 562, emphasis added):

25. [462]

    Generally, when a senior officer or employee of a company diverts an opportunity obtained by reason or by use of his fiduciary position, the benefits of taking that opportunity belong in equity to the company, irrespective of whether the company could have availed itself of the opportunity: Warman International Ltd v Dwyer (1995) 182 CLR 544 at 558; [1995] HCA 18.

26. [463]

    In Furs Ltd v Tomkies (1936) 54 CLR 583 at 592; [1936] HCA 3, Rich, Dixon and Evatt JJ observed that:

27. [464]

    In Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 8) [2022] FCA 1404 at [232] and [242]-[243], Beach J summarised the relevant principles as follows:

28. [465]

    It is always necessary, when determining the scope of fiduciary obligations in a particular case, to have regard the specific circumstances of that case. In Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 102; [1984] HCA 64, Mason J observed that the “scope of fiduciary duty must be moulded according to the nature of the particular relationship and the facts of the case”. This principle has been described as “fundamental”: Omnilab Media Pty Ltd v Digital Cinema Network Pty Ltd (2011) 285 ALR 63; [2011] FCAFC 166 at [206] per Jacobson J (Rares and Besanko JJ agreeing).

29. [466]

    In Birtchnell v Equity Trustees, Executors and Agency Co Ltd at 408, Dixon J observed that the subject matter over which the fiduciary obligations extend is determined by the character of the venture or undertaking for which the relationship exists, and that this is to be ascertained not merely from the express agreement of the parties, whether embodied in written instruments or not, but also from the course of dealing actually pursued by the entity to whom the duties are owed.

30. [467]

    Accordingly, as French CJ and Keane J observed in Howard v Commissioner of Taxation (2014) 253 CLR 83; [2014] HCA 21 at [34], the limits of fiduciary obligations are “to be determined by the character of the venture for which the [relationship] existed, the express agreement of the parties and the course of dealings actually pursued”. Their Honours said that:

31. [468]

    Fiduciary duties generally terminate upon the termination of the relevant underlying undertaking: In the matter of Sunnya Pty Ltd [2024] NSWSC 403 at [473].

32. [469]

    However, it does not follow that fiduciary duties terminate at the point in time where the parties agree to terminate the relevant undertaking, and commence taking steps in order to bring about that result. For example, in Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36, fiduciary obligations were held to continue after the dissolution of a partnership but before the completion of the winding up of its affairs. Notwithstanding the dissolution of the partnership, “the good faith and honourable conduct due” from each partner to the other persisted for the purposes of winding up the affairs of the partnership and each partner remained under a fiduciary obligation to co-operate in and act consistently with the agreed procedure for the realization, application and distribution of partnership property: Chan v Zacharia at 197 per Deane J.

33. [470]

    In Lawfund Australia Pty Ltd v Lawfund Leasing Pty Ltd [2008] NSWSC 144, Brereton J held that the director of an incorporated joint venture (Ms Ward) breached her fiduciary obligations by her conduct leading up to the termination of the enterprise, which included using her position to divert business to her own company. His Honour said (at [84]):

34. [471]

    Informed consent is a defence. There is no duty on a fiduciary to obtain informed consent, but rather the existence of informed consent will go to negate what was otherwise a breach of duty: Atanaskovic Hartnell v Birketu Pty Ltd (2021) 105 NSWLR 542; [2021] NSWCA 201 at [46].

35. [472]

    It is for the fiduciary to plead and prove informed consent. The consent must be “fully informed”, and what is required is a question of fact in all the circumstances of each case: Atanaskovic Hartnell v Birketu at [47]-[48]. There is no precise formula which will determine in all cases if fully informed consent has been given: Maguire v Makaronis (1997) 188 CLR 449 at 466; [1997] HCA 23 per Brennan CJ, Gaudron, McHugh and Gummow JJ.

36. [473]

    In Law Society of New South Wales v Harvey [1976] 2 NSWLR 154 at 170, Street CJ said that there must be “a conscientious disclosure of all material circumstances, and everything known to [the solicitor] relating to the proposed transaction which might influence the conduct of the client or anybody from whom he might seek advice”.

37. [474]

    In Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [107], the plurality observed that consent can be established “at different times and in different ways”, and that what is required will depend on the sophistication and intelligence of the persons to whom disclosure was made.

38. [475]

    If a person occupying a fiduciary position wishes to enter into a transaction which would otherwise amount to a breach of duty, the fiduciary must, if liability is to be avoided, make full disclosure to the person to whom the duty is owed of all of the material facts and circumstances of the case known to the fiduciary, and that person must consent to the fiduciary’s proposal: Mualim v Dzelme [2021] NSWCA 199 at [114]-[115]; quoting and approving Meagher, Gummow and Lehane’s Equity: Doctrine and Remedies (5th ed, 2015, LexisNexis Butterworths) at [5-130].

39. [476]

    In Furs v Tomkies at 592, Rich, Dixon and Evatt JJ referred to “the inflexible rule” that:

40. [477]

    Logikal was incorporated in December 2019. The Plaintiffs submitted that the Court should find that Logikal was set up by Ms Xie and Mr Zhang for the primary purpose of taking over Firmtech’s business.

41. [478]

    Such conduct, if established, could amount to a breach of duty. In Gunasegaram v Blue Visions Management Pty Ltd [2018] NSWCA 179, a senior employee of Blue Visions, who had responsibility for managing a major contract between Blue Visions and the West Australian Department of Treasury and Finance, set up a corporate vehicle through which he could undertake work after his resignation from Blue Visions. Basten JA held (at [40]) that the establishment of that corporate vehicle was not itself a breach of the officer’s fiduciary duty. His Honour said that:

42. [479]

    I am not satisfied that the purpose for setting up Logikal was to take over Firmtech’s Windows and Doors Business. This company appears not to have been used to conduct business until around the end of 2020, some twelve months after it was established. I do not consider that there is a sufficient basis to infer, based on the nature of the steps taken by Logikal from late 2020 onwards, that the company was incorporated in December 2019 for the purpose of taking such steps.

43. [480]

    In any case, even if Logikal had been set up for that purpose, there is no consequence for Firmtech flowing from the establishment of Logikal which is separate from, or additional to, those consequences flowing from the use of Logikal to compete with Firmtech (which are addressed below).

44. [481]

    I have found that, before the 30 January 2021 meeting with Mr Xu to discuss closing down Firmtech, Ms Xie and Mr Zhang had already taken steps to divert valuable business opportunities from Firmtech to Aluminum and Logikal. Each of those opportunities involved work of a type which Firmtech was capable of performing. In a number of instances, the clients involved were existing clients of Firmtech’s Windows and Doors Business, or developers whom Firmtech had sought to obtain as clients.

45. [482]

    In diverting those opportunities, each of Ms Xie and Mr Zhang promoted their personal interests by making or pursuing a gain in circumstances in which there was a conflict, or a real or substantial possibility of a conflict, between their personal interests and the interests of Firmtech.

46. [483]

    I have also found that Mr Xu did not provide consent, let alone informed consent, to the diversion of any of those opportunities to Ms Xie’s companies. Since Mr Xu was one of the two directors of Firmtech, and a 50% shareholder, it follows that Firmtech did not provide informed consent to the diversion of this work to Aluminum and Logikal.

47. [484]

    In particular, prior to 30 January 2021, Ms Xie and Mr Zhang diverted the following opportunities to Aluminum or Logikal without Mr Xu’s knowledge or consent (and therefore without Firmtech’s informed consent).

    1. (1)

       In May 2019, Icon sent a scope of works for the Campbell 5 Project to Firmtech, in order that Firmtech could tender for the project. Icon was an existing client of Firmtech. In September 2019 and January 2020, Ms Xie caused Aluminum to issue quotations for this project. On 31 January 2020, Icon and Aluminum entered a contract for that project, which was executed by Ms Xie on behalf of Aluminum. Mr Zhang was aware of these matters and acted as Aluminum’s manager in relation to the works carried out under the contract. Aluminum used Firmtech’s premises, employees and equipment to perform the contract (see paragraphs [86]-[130] above).

    2. (2)

       In September 2019, Icon invited Firmtech to issue a quotation for the Embark on Northbourne Project. Between September and December 2019, Ms Xie caused Firmtech to issue a number of quotations for this project. However, in December 2019, Ms Xie caused Aluminum to enter into a contract with Icon in relation to the Embark on Northbourne project. Mr Zhang was aware that Ms Xie executed this contract on behalf of Aluminum and subsequently, in May and July 2020, signed installation certificates on behalf of Aluminum (see paragraphs [131]-[154] above).

    3. (3)

       In September 2019, JWLand sought, from Firmtech, a feasibility study and rough cost estimate for the Founders Lane Project. In July 2020, Ms Xie issued, on behalf of Aluminum, a quotation for this project. On 10 January 2021, Ms Xie issued, on behalf of Logikal, a revised quotation for this project. Mr Zhang was aware of each of these quotations at the time they were issued. On 4 February 2021, JWLand and Logikal entered into a contract for this project, which was executed by Ms Xie in her capacity as director of Logikal (see paragraphs [155]-[167] above).

    4. (4)

       Prior to 29 September 2020, Aluminum performed work on two projects for JWLand, known as Akora Residences and Altair No 1 (see paragraphs [238]-[239] above).

    5. (5)

       In November 2020, Ms Xie issued, on behalf of Aluminum, quotations for the Epping Apartment Project which was being built by Forte (which was an existing client of Firmtech). Mr Zhang was aware of these quotations at the time they were issued. In December 2020, Ms Xie issued a revised quotation for the project and informed Forte that, for new projects, work would be performed by Logikal. Mr Zhang was also copied on this communication. In December 2020, Forte issued a Letter of Intent to Logikal in respect of the Epping Apartment Project. On 1 January 2021, this Letter of Intent was signed by Ms Xie, on behalf of Logikal. Mr Zhang was aware of each of the quotations issued by Ms Xie for this project, and was also aware, at the time, that Logikal had entered into the Letter of Intent with Forte (see paragraphs [213]-[225] above).

    6. (6)

       In July 2020, Firmtech received an invitation to quote for the Elara Shopping Centre Project, which was being undertaken by Parkview Constructions (an existing client, for whom Firmtech had worked on projects in 2019 and 2020). In November 2020, Ms Xie issued, on behalf of Firmtech, a quotation for this project. However, in February 2021, Parkview Constructions entered into a contract with Aluminum for this project. Although signed in February 2021, this contract had been, according to Mr Zhang, “ready to go” prior to the 30 January 2021 meeting with Mr Xu, and Aluminum had prepared drawings for this project in January 2021 (see paragraphs [226]-[237] above).

    7. (7)

       In around December 2020 or January 2021, Logikal tendered for the supply of windows and doors for the Ingleburn Project, and subsequently entered into a contract for that project on 2 March 2021 (see paragraph [395(1)] above).

48. [485]

    I deal below with the issue whether, as a result of the 30 January 2021 meeting, the scope of the fiduciary obligations of Mr Zhang and Ms Xie was modified in some way (and if so, in what way). In particular, I deal below with the submission of Mr Zhang and Ms Xie that, following this meeting, they were “free to engage in other commercial activities, which could not possibly be against the interest of Firmtech as a whole, because it was being wound down pursuant to its shareholders’ agreement”.

49. [486]

    Even if that submission were accepted, I do not consider that this would mean that Ms Xie and Mr Zhang would have been “free”, after 30 January 2021, to cause Aluminum or Logikal to enter, and perform, contracts in respect of business opportunities which had been diverted from Firmtech prior to that date. This can be illustrated by reference to the Founders Lane Project and the Elara Shopping Centre Project. The contracts in respect of each of those projects was entered shortly after the 30 January 2021 meeting. However, as outlined above, those commercial opportunities had already been diverted from Firmtech to, respectively, Logikal and Aluminum, prior to that meeting. Whatever the effect of any agreement reached at this meeting, Ms Xie and Mr Zhang had already, prior to the meeting, breached their fiduciary obligations by diverting these valuable business opportunities away from Firmtech to Ms Xie’s companies and thereby promoting their own interests, which were in conflict with those of Firmtech.

50. [487]

    The position may have been different if, at the 30 January 2021 meeting, Mr Zhang and Ms Xie had disclosed to Mr Xu that they had already, prior to this meeting, taken steps to divert these opportunities to Logikal and Aluminum; had told him the value of those contracts; and had obtained his (and therefore Firmtech’s) informed consent to the entry by Logikal and Aluminum into those contracts after the 30 January meeting. However, they did no such thing. There was not, and was not alleged to be, any ratification or waiver at the 30 January meeting in respect of any breach of duty which had occurred prior to that meeting.

51. [488]

    It follows that, in taking steps, prior to 30 January 2021, to divert each of the valuable commercial opportunities which are listed above from Firmtech to either Aluminum or Logikal, each of Ms Xie and Mr Zhang:

    1. (1)

       breached their fiduciary obligations to Firmtech, by promoting their personal interests, without informed consent, in circumstances in which there was a conflict between their personal interests and the interests of Firmtech; and

    2. (2)

       breached their statutory obligations as officers of Firmtech, including their obligations:

52. [489]

    Mr Zhang and Ms Xie contended that the extent of the duty owed by them must be determined having regard to all the relevant circumstances, including the “agreement reached between Ms Xie, Mr Zhang and Mr Xu on or between 20 September 2020 and 30 January 2021, that Firmtech would be closed down and the parties would go their own separate ways”. They submitted that:

    1. (1)

       in these circumstances, whatever duties were owed by them, the scope of those duties did not prevent them from conducting the businesses owned by Aluminum and Logikal; and

    2. (2)

       alternatively, the effect of the agreement was to relieve Ms Xie and Mr Zhang from any breach of duty arising from their conducting the businesses operated by Aluminum and Logikal.

53. [490]

    I have determined that the parties agreed, on 30 January 2021, to take steps to separate their financial affairs, which included Mr Xu being repaid his capital contributions to Firmtech, and Mr Zhang and Ms Xie remaining at Firmtech to complete existing projects, following which Firmtech would cease operations and the parties would be free to conduct separate businesses on their own account. I have also found that Mr Xu intended that, following the departure of Mr Zhang and Ms Xie, he would continue the Windows and Doors Business under a new manager, with new projects being performed by a company (FAWD) which was wholly owned and controlled by him.

54. [491]

    Mr Zhang and Ms Xie contended as follows in their closing written submissions:

55. [492]

    I do not consider that it could be said that, following the 30 January 2021 meeting, it would have been a breach of duty for Mr Zhang to cause Firmtech to take on new work. There was no agreement between Firmtech’s shareholders at this meeting that no new jobs would be undertaken. Further, Mr Zhang and Ms Xie knew that Mr Xu intended to continue the Windows and Doors Business after Mr Zhang’s departure, and was seeking a new manager for this purpose. Any new jobs obtained by Mr Zhang and Ms Xie for Firmtech prior to their departure, and subsequently completed by FAWD on Firmtech’s behalf, would have been for the benefit of both of Firmtech’s shareholders (Mr Zhang and Mr Xu).

56. [493]

    On Mr Zhang’s and Ms Xie’s own version of events, neither of them made any statement to Mr Xu at the 30 January 2021 meeting to the effect that if a new opportunity arose with an existing client of Firmtech, or in respect of an existing project being performed by Firmtech, they intended to divert any such opportunity to Aluminum or Logikal. Nor, on their own evidence, was there any consent by Mr Xu (and therefore by Firmtech) to such a course.

57. [494]

    Mr Zhang and Ms Xie plainly had an intention, at the time of the meeting, to divert work to Aluminum and Logikal. For example, they had the contract for Aluminum to perform the Elara Shopping Centre Project “ready to go” before the meeting, and Ms Xie executed it shortly afterwards.

58. [495]

    It was a breach of Mr Zhang’s and Ms Xie’s duty, as officers of Firmtech, to act in good faith and in the best interests of Firmtech, for them not to disclose to their fellow officer, Mr Xu, at the 30 January meeting that they had already been diverting business opportunities to Aluminum and Logikal; that they intended to continue to do so; and that they intended to continue to operate those companies in competition with Firmtech, while they remained responsible for running Firmtech’s Windows and Doors Business: Southern Real Estate Pty Ltd v Dellow (2003) 87 SASR 1; [2003] SASC 318 at [29] per Debelle J (Nyland and Lander JJ agreeing).

59. [496]

    Mr Zhang and Ms Xie would have been aware, from Mr Xu’s stated intention to continue the Windows and Doors Business, that he would not have consented to such a course. Further, such a course would have been inconsistent with the position which Mr Zhang and Ms Xie conveyed to Mr Xu, namely, that they were tired of working on Firmtech’s projects and only wanted to do smaller jobs in the future.

60. [497]

    In addition, Mr Xu asked Mr Zhang and Ms Xie, on a number of occasions, for information about the status of quotations which had been issued by Firmtech, but not yet accepted, and they answered his queries about those quotations (albeit in a misleading way). Such conduct was inconsistent with the suggestion that an agreement had been reached between the shareholders that Firmtech had no interest in, and should refuse to take on, any further work.

61. [498]

    So long as Mr Zhang and Ms Xie remained as officers of Firmtech, and were responsible for running its Windows and Doors Business, they were not free to promote their own interests by diverting valuable commercial opportunities from that business to Aluminum or Logikal, unless they obtained Firmtech’s informed consent, which would have required obtaining Mr Xu’s informed consent. No such consent was sought, or obtained, at the 30 January meeting, or at any time thereafter, either generally or in respect of any particular project.

62. [499]

    In the period from February 2021 through to July 2021, Ms Xie and Mr Zhang caused a number of further valuable opportunities to be diverted from Firmtech to Logikal or Aluminum (which are in addition to those listed above when dealing with the period prior to 30 January meeting).

63. [500]

    First, work on the Aire Project, which was an existing project of Firmtech, was diverted from Firmtech to Logikal. The Aire Project had been identified as a “current project” and included in the list of assets of Firmtech that was discussed at the 30 January meeting. At that meeting, Mr Zhang had told Mr Xu that he would stay at Firmtech to see this project through to handover to the builder. Despite those matters, Ms Xie engaged in correspondence with Modco, which was copied to Mr Zhang, in which she proposed that Logikal perform, and receive payment for, the balance of the outstanding work on the Aire Project. Logikal also quoted for, and entered a contract for, some additional work on the same project in July 2021 (see paragraphs [326]-[353] above).

64. [501]

    Mr Xu was not told about, and did not agree to, this diversion of work on the Aire Project from Firmtech to Logikal. When he asked for information about the status of the Aire Project in August and October 2021, Ms Xie responded to him in terms which suggested that this project was being performed by Firmtech, and did not disclose the matters outlined above (see paragraphs [347]-[349] above).

65. [502]

    Even if there had been an agreement by the shareholders of Firmtech not to take on new projects after 30 January 2021 (which I have found was not the case), Ms Xie and Mr Zhang would not have been free to divert work on the existing projects of Firmtech, which they had promised to complete for Firmtech’s benefit, to Logikal.

66. [503]

    Secondly, the St Dominic’s College Project was diverted from Firmtech to Aluminum. In September 2020, Novati Constructions sent an email to Ms Xie inviting Firmtech to tender for this project. Novati Constructions was an existing client, for whom Firmtech had worked on various projects between 2018 and 2020. In October 2020 and January 2021, Mr Zhang had issued, on behalf of Firmtech, a number of quotations to Novati Constructions for this project. However, in March 2021, Ms Xie issued, on behalf of Alumnium, a revised quotation for the same work. In April 2021, Ms Xie and Mr Zhang communicated with Novati Constructions in relation to this project from a Logikal email address. In July 2021, an updated quotation was issued by Logikal for the same project, and a contract was entered between Novati Constructions and Logikal which was signed by Ms Xie and witnessed by Mr Zhang (see paragraphs [354]-[365] above).

67. [504]

    Mr Zhang and Ms Xie did not inform Mr Xu that this opportunity was being diverted from Firmtech, or seek his (and thereby Firmtech’s) consent to this opportunity being performed by Ms Xie’s companies.

68. [505]

    Thirdly, Ms Xie took steps to divert the opportunity for the Spring Square Project from Firmtech to Aluminum. Firmtech had tendered for this project in late 2019. However, from April 2021, Ms Xie was involved in discussions with the developer on behalf of Aluminum, which was awarded the contract for the project in July 2021. Mr Zhang was aware that this project was diverted to Aluminum (see paragraphs [366]-[389] above).

69. [506]

    Significantly, Ms Xie and Mr Zhang were aware, when taking steps to divert the Spring Square Project to Aluminum, that Mr Xu was concerned to know the status of Firmtech’s tender for this project. If they had been of the view that it was inconsistent with the agreement reached on 30 January meeting for Firmtech to take on any new project (including the Spring Square Project), they would have likely expressed this view to Mr Xu, in response to his questions about the project. However, they did not do so. Instead, they responded in terms which suggested that Firmtech’s tender had low prospects of success (see paragraphs [368]-[382] above). Ms Xie and Mr Zhang did not inform Mr Xu that they were taking steps, while still officers of Firmtech, to divert this project to Aluminum, and did not seek his (and therefore Firmtech’s) consent to their doing so.

70. [507]

    If this project had been obtained for Firmtech in July 2021 (when the contract between the developer and Aluminum was entered), this would not have been an obstacle to achieving the outcomes which had been agreed at the meeting on 30 January 2021. At that meeting, Mr Zhang and Ms Xie had agreed to stay on until the conclusion of those projects which were current as at January 2021. They did not agree to stay on until the conclusion of any further projects as might be obtained between 30 January 2021 and the date of the conclusion of the existing projects. Mr Xu intended to, and did, recruit a new manager to run the Windows and Doors Business through FAWD following the departure of Mr Zhang and Ms Xie. Accordingly, if the Spring Square Project had been obtained by Firmtech prior to their departure, this project would not have delayed their departure. FAWD would have been able to perform this project, in Firmtech’s name, with the profits being shared equally by Firmtech’s shareholders (including Mr Zhang). In contrast, the diversion of the opportunity for the Spring Square Project from Firmtech to Aluminum, while Mr Zhang and Ms Xie remained officers of Firmtech, meant that Firmtech’s shareholders (including Mr Xu) were excluded from sharing in the profits of that project, which were instead solely for the benefit of Ms Xie. Mr Xu, and therefore Firmtech, did not consent to that course.

71. [508]

    Fourthly, Logikal quoted for, and entered contracts for, a number of other projects prior to July 2021, while Mr Zhang and Ms Xie remained working at Firmtech and managing its aluminium windows and doors business. These included the Koko Molongo Project, for which Firmtech had previously quoted (see paragraphs [390]-[397] above). Mr Xu was not informed that Logikal was tendering for any of these projects, and Ms Xie and Mr Zhang did not seek his (or therefore Firmtech’s) consent to these projects being performed by Logikal rather than Firmtech.

72. [509]

    It is unnecessary to consider the question regarding the point of time when a former director may begin to compete with the company: see Sunnya at [473]-[486], and the authorities there cited. The breaches identified above occurred after Mr Zhang and Ms Xie had announced their intention to leave Firmtech, but at a time when each of Mr Zhang and Ms Xie remained as officers of Firmtech and remained responsible for running its Windows and Doors Business.

73. [510]

    By diverting these projects to Aluminum or Logikal, Mr Zhang and Ms Xie promoted their personal interests, without informed consent, by pursuing and making a gain for Ms Xie’s companies in circumstances in which there was a conflict between their personal interests and the interests of Firmtech.

74. [511]

    It follows that, by this conduct, each of Mr Zhang and Ms Xie breached their fiduciary and statutory obligations to Firmtech.

75. [512]

    Mr Xu and Firmtech also pleaded that various other projects were quoted for, or obtained, by Logikal from around the last quarter of 2021 onwards (see, for example, ASOC, [110K], [110O], [110Q], [110S]-[110Z]).

76. [513]

    There was no dispute that those projects were in fact undertaken by Logikal, but there was a dispute as to whether, in causing Logikal to pursue those projects either Mr Zhang or Ms Xie breached their fiduciary and statutory obligations to Firmtech.

77. [514]

    Mr Zhang was at all relevant times (and remains) a director of Firmtech.

78. [515]

    However, as noted above, any consideration of the content of the duties owed by a director or officer of a company must have regard to the circumstances of the company.

79. [516]

    By the last quarter of 2021, the steps to separate the financial affairs of the parties, which had been agreed at the 30 January meeting, had been performed. The Panania Property and the Lansvale Property had been sold, and moneys had been paid from those the sale of those properties to Mr Xu and Ms Gu. The jobs which were on foot as at January 2021 also appear to have been completed around this time. Firmtech ceased paying its employees in September 2021. On 6 October 2021, Ms Xie confirmed to Mr Xu that the only remaining project of Firmtech was the Aire Project, and the final payment in respect of that project was received at the start of November 2021. Since November 2021, Firmtech’s bank account has not had a credit balance greater than $20,000. Accordingly, it is apparent that, by the last quarter of 2021, Firmtech had effectively ceased operations and had, in that sense, closed down.

80. [517]

    The parties had agreed at the 30 January meeting that, after the steps to separate their financial affairs had been completed and after Firmtech had ceased operations, they would be free to conduct separate businesses on their own account. Consistently with that arrangement, by the last quarter of 2021, Mr Xu was using his own company, FAWD, to issue quotations for new jobs in the aluminium windows and doors industry, and had been doing so for a number of months. Mr Xu also appears to have commenced, around this time, undertaking construction work through Auscon, rather than through Firmtech.

81. [518]

    Finally, it is plain that by this time the relationship between Mr Xu and Mr Zhang had completely broken down, as shown by the solicitors’ correspondence exchanged in July 2021 (see paragraphs [419]-[426] above).

82. [519]

    Having regard to those matters, I do not consider that Mr Zhang and Ms Xie remained bound, from around the last quarter of 2021 onwards, not to promote (without Mr Xu’s consent) their personal interests by pursuing new projects for Aluminum or Logikal. There did not remain, after this point in time, any real or potential possibility of conflict between their own interests and those of Firmtech, since Firmtech had ceased to operate its Windows and Doors Business and its construction business, and, by this time, Firmtech’s two directors and shareholders were pursuing separate businesses, on their own account, in the same industry through competing firms.

Claim for breach of fiduciary duties owed to Mr Xu

1. [520]

   Mr Xu contended that, in performing their roles at Firmtech, each of Mr Zhang and Ms Xie owed fiduciary obligations not only to Firmtech, but to Mr Xu himself. In particular, Mr Xu submitted that his arrangement with Mr Zhang and Ms Xie was a quasi-partnership or joint venture which was conducted through the mechanism of a corporation, of a kind which gave rise to fiduciary obligations as between the participants.

2. [521]

   In response, Mr Zhang and Ms Xie relied on the decision in Friend v Brooker (2009) 239 CLR 129; [2009] HCA 21. In that case, Mr Brooker had sued Mr Friend alleging that there was a partnership or agreement between them to carry on jointly the conduct of a building and construction business, and that the second defendant, Friend & Brooker Pty Ltd, had been the “corporate vehicle” for the conduct of the partnership or joint venture agreement (at [4]). Mr Brooker contended that Mr Friend owed him a fiduciary obligation “not to prefer his own interests to those of Mr Brooker in managing the disbursement of the funds of the Company to repay loans to the Company made possible by Mr Brooker’s personal borrowing from third parties”, which Mr Friend was said to have breached by “preventing the funds of the Company from being used to reduce the burden of the borrowing by Mr Brooker” (at [85]).

3. [522]

   French CJ, Gummow, Hayne and Bell JJ accepted Mr Friend’s submission that any such duty was incompatible with the corporate structure which Mr Friend and Mr Brooker had adopted in order to conduct their business. Their Honours held as follows (at [86]):

4. [523]

   Their Honours concluded (at [89]-[90]) that Mr Friend and Mr Brooker “were not, after the formation of the Company in 1977, in a relationship of partnership”, nor were “their business dealings pursued pursuant to any agreement in the nature of a joint venture”. Instead, the parties’ “endeavour … [was] to derive equal profit for their respective family shareholdings by the conduct of the business of the Company”.

5. [524]

   It was common ground that Mr Xu, Mr Zhang and Ms Xie formed an agreement which included express terms that Firmtech would be incorporated to operate a business in the aluminium windows and doors industry; that Mr Xu and Mr Zhang would be directors and equal shareholders of Firmtech; that Mr Zhang would run the factory and oversee the manufacturing and installation of products; and that Ms Xie would be the General Manager and would handle quotations and sales. That agreement was implemented by the establishment of Firmtech, which adopted the agreed structure, for the purpose of operating the Windows and Doors Business.

6. [525]

   From the incorporation of Firmtech in May 2018, Mr Xu, Mr Zhang and Ms Xie were not operating the Windows and Doors Business pursuant to a partnership agreement or a joint venture agreement. Instead, they were pursuing the endeavour of deriving equal profit for their respective families by the conduct of that business through the agreed upon corporate structure.

7. [526]

   A director does not, generally, owe a fiduciary duty to a shareholder. In Brunningshausen v Glavanics (1999) 46 NSWLR 538; [1999] NSWCA 199 at [57]-[58], Handley JA (with whom Priestley and Stein JJA agreed) observed that:

8. [527]

   However, there can be circumstances where such a duty does arise. In particular, Handley JA (at [106]-[107]) recognised that, where there are negotiations for a take-over or an acquisition of the company’s undertaking, the directors might owe a fiduciary duty to loyally promote the interests of all shareholders and not to prefer their personal interest to the joint interest.

9. [528]

   In Charlton v Baber [2003] NSWSC 745 at [17], Barrett J summarised the effect of the decision in Brunningshausen as follows:

10. [529]

    Similarly, in Warner Capital Pty Ltd v Shazbot [2020] NSWCA 121, Gleeson JA (with Macfarlan and Meagher JJA agreeing) referred to the decision in Brunningshausen and said (at [99]):

11. [530]

    Mr Xu did not, in his written submissions, refer to the decisions in Friend v Brooker or Brunningshausen. Instead, he focussed on the decision of the Court of Appeal in Crawley v Short [2009] NSWCA 410. In that case, Young JA (with whom Allsop P and Macfarlan JA agreed) observed that there could be “no quarrel” with the primary judge’s statement that “as a general proposition, a director owes fiduciary duties to the company and not to each shareholder” (at [100]). However, his Honour said, based on the decision in Brunningshausen, that “particular factual circumstances may give rise to a fiduciary relationship between a director and an individual shareholder” (at [101]). Young JA noted that the primary judge “acknowledged that there were cases where a director who was also a shareholder could owe a duty to another shareholder, but considered that Brunningshausen told against it when the same acts constituted a breach of the fiduciary duty to the company” (at [119]). His Honour said that the primary judge's view in that respect involved “too narrow a reading of Brunningshausen and is out of line with other authorities” (at [120]), and continued (at [121]‑[122]):

12. [531]

    I do not consider that Crawley v Short stands for the proposition that, whenever two or more people engage in business through a corporate vehicle, which can be described as a quasi-partnership, a director of that company will owe fiduciary duties to each of its members which are concurrent and identical to those owed to the company.

13. [532]

    In each case, it is necessary to consider, as Young JA put it (at [108(c)]), whether there are “special circumstances arising on the facts of [the] particular case”, which lead to the conclusion that the director owes a fiduciary duty to a member. The critical issue is whether “in all the circumstances, there was a special opportunity for [the director] to act to the detriment of the other shareholders so that he owed a duty to them” (at [118]). Where such circumstances arise, it would also be necessary to determine the scope, or subject matter, of the area within which the fiduciary is not free to act self-interestedly. As Barrett J put it in Charlton v Baber, “particular circumstances may give rise to a particular duty owed by a particular director to a particular shareholder”. Accordingly, to find that a fiduciary duty is owed by a particular director to a particular shareholder, it is necessary to identify the “particular circumstances” which give rise to that duty, and the “particular duty” that is owed.

14. [533]

    Mr Xu submitted that Ms Xie and Mr Zhang were “the principal interfaces between Firmtech and its customers” and this gave them “practical control over the corporate opportunities of Firmtech”. He further submitted that, as a matter of practical and commercial reality, Mr Zhang and Ms Xie had the “special opportunity” to act to the detriment of Mr Xu, and that he was vulnerable to the particular harm which eventuated, namely, that Mr Zhang and Ms Xie “would use their exclusive access to Firmtech’s customers to divert the Firmtech business to different corporate vehicles from which Firmtech was excluded”.

15. [534]

    I am not satisfied that there were “special circumstances” so as to give rise to a fiduciary duty which was owed by Mr Zhang or Ms Xie to Mr Xu in the period while Mr Zhang and Ms Xie remained at Firmtech and were responsible for operating its Windows and Doors Business. In that period, Mr Zhang and Ms Xie owed, as officers of Firmtech, fiduciary and statutory duties to Firmtech, and Mr Xu had, as a shareholder, an interest in their performance of those duties, given his entitlement to a 50% share of the profit from the operation of Firmtech’s business. In those circumstances, I do not consider that equity would impose, on Mr Zhang or Ms Xie, fiduciary obligations to Mr Xu which were concurrent with, and identical in substance to, the fiduciary obligations which they owed Firmtech.

16. [535]

    The position may have been different if I had concluded that the effect of the agreement reached on 30 January 2021 was that, as the Zhang/Xie Parties contended, no new work should be undertaken by Firmtech from that point onwards. If that were the case, the interests of Firmtech and Mr Xu would have remained aligned so far as the completion of existing projects was concerned. However, the interests of Firmtech and Mr Xu would have diverged so far as new projects were concerned. In those circumstances, it might be said that Mr Xu, by agreeing to Mr Zhang and Ms Xie remaining at Firmtech to complete the existing jobs, placed trust and confidence in them that they would not promote their personal interests, to his detriment, by diverting any opportunities for new work to their own companies. However, this is not a matter which I need determine, in light of the findings I have made.

17. [536]

    For the reasons given above, Mr Xu’s claims for breach of fiduciary obligations owed to him personally have not been established. If (contrary to the views I have reached) any such obligations were owed to Mr Xu personally, it would follow that these duties were breached by the same conduct of Mr Zhang and Ms Xie which I have determined to have amounted to a breach of their fiduciary obligations to Firmtech.

Accessorial Liability Claims

1. [537]

   The Plaintiffs submitted that, if the Court found that Mr Zhang and Ms Xie, in breach of their fiduciary duties, wrongfully diverted business opportunities to Aluminum and Logikal, then the Court should find that Aluminum and Logikal are liable as accessories for the conduct of Mr Zhang and Ms Xie. This submission was put on the basis either that Aluminum and Logikal were the corporate alter egos of Ms Xie and Mr Zhang (referring to the observations in Grimaldi at [243]), or on the basis that they knowingly assisted in the breaches of Ms Xie and Mr Zhang.

2. [538]

   The nature of a claim for accessorial liability based on a company being the “alter ego” of the principal was recently considered by Williams J in Sunnya at [500]-[511]. Her Honour there stated that the observations in Grimaldi were obiter and that, while they have been referred to in many cases, there is “a contrary view that the liability of the fiduciary and the corporate accessory controlled by the fiduciary are distinct” (at [502], with reference to the cases there cited).

3. [539]

   I do not need to resolve this issue. Counsel for the Zhang/Xie Parties acknowledged in closing address that the dispute about the “alter ego” principle “doesn’t much matter because … Ms Xie is the director of the two companies with which we are concerned, the sole director of those companies”. It follows that the knowledge of Ms Xie will be attributed to Aluminum and Logikal: Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 582 per Brennan, Deane, Gaudron and McHugh JJ; [1995] HCA 68.

4. [540]

   Ms Xie was the person who took steps, on behalf of each of Firmtech, Aluminum and Logikal, to quote for and engage in negotiations concerning potential new projects. She was aware (and therefore Aluminum and Logikal were aware) that each of the relevant projects was work which Firmtech was able to perform, and which was diverted from Firmtech to Aluminum or Logikal.

5. [541]

   Liability will arise under the second limb of Barnes v Addy (1874) LR 9 Ch App 244 where the conduct which constitutes the breach transgresses ordinary standards of honest behaviour, and the participant has knowledge of circumstances which would indicate the fact of the dishonesty on behalf of the fiduciary to an honest and reasonable person: Ancient Order of Foresters at [71] per Gageler J.

6. [542]

   The requirement of dishonesty, in the requisite sense, is satisfied by the fact that Ms Xie and Mr Zhang concealed the diversion of work to Aluminum and Logikal from Mr Xu.

7. [543]

   It follows that Aluminum and Logikal are liable under the second limb of Barnes v Addy for having knowingly assisted in Ms Xie’s and Mr Zhang’s breach of their fiduciary obligations to Firmtech.

8. [544]

   Similarly, by reason of the attribution of Ms Xie’s knowledge to Aluminum and Logikal, those companies were involved in the contraventions by Ms Xie and Mr Zhang of their statutory duties, within the meaning of s 79 of the Act. The relevant principles are set out in Sunnya at [532]-[534]. Aluminum and Logikal had (through Ms Xie) actual knowledge of the essential acts constituting the contraventions, namely, the steps taken by Ms Xie to divert each of the relevant projects from Firmtech to Aluminum or Logikal.

Oppression Claim

1. [545]

   The Plaintiffs pleaded that, by reason of, inter alia, the diversion by Mr Zhang and Ms Xie of valuable business opportunities from Firmtech to Aluminum and Logikal, the conduct of Firmtech’s affairs was contrary to the interests of the members as a whole and was oppressive to, unfairly prejudicial to, or unfairly discriminatory against Mr Xu within the meaning of s 232 of the Act.

2. [546]

   Section 232 extends to conduct involving “commercial unfairness” or where the conduct complained of involves a visible departure from the standards of fair dealing and a violation of the conditions of fair play, or a decision has been made so as to impose a disadvantage, disability or burden on the plaintiff that, according to ordinary standards of reasonableness and fair dealing, is unfair: Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 at 704; Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 at 472-473; [1985] HCA 68.

3. [547]

   In Morgan v 45 Flers at 704, Young J noted that whether oppression was established was to be determined by reference to the nature of the business carried on by the company and the nature of the relations between its participants and “whether objectively in the eyes of a commercial bystander, there has been unfairness, namely conduct that is so unfair that reasonable directors who consider the matter would not have thought the decision fair.”

4. [548]

   Oppression may be established by a director’s diversion of business opportunities to another company which he or she controls, and in which other shareholders in the company have no interest: Catalano v Managing Australia Destinations Pty Ltd (2014) 314 ALR 62; [2014] FCAFC 55 at [19] (Siopis, Rares and Davies JJ); and In the matter of ICB Medical Distributors Pty Ltd and The International College of Biomechanics Pty Ltd; ICB Gait and Posture Clinic Pty Ltd; Foot Steps Orthotics Pty Limited [2018] NSWSC 1315 at [186] (Black J).

5. [549]

   In In the matter of Cheal Industries Pty Ltd – Fitzpatrick v Cheal [2012] NSWSC 261 at [175], Ward J said that:

6. [550]

   Having regard to the findings I have made regarding the diversion by Mr Zhang and Ms Xie of business opportunities from Firmtech to Aluminum or Logikal, I find that the affairs of Firmtech were conducted in a manner that was contrary to the interests of the members as a whole and was oppressive to, unfairly prejudicial to, or unfairly discriminatory against Mr Xu within the meaning of s 232 of the Act.

7. [551]

   In support of his oppression claim, Mr Xu relied on various other matters said to amount to an exclusion from the management of Firmtech’s business from around May 2021 onwards, such as the removal of his access to the “accounts@firmtechaluminium.com.au” email address and to Firmtech’s MYOB accounting system. There was a factual dispute regarding a number of these matters including, for example, whether certain steps were taken before, or after and in response to, the commencement of FAWD’s operations. Given that I have found that the diversion of business opportunities amounted to oppression, and no relief is sought in respect of these further alleged acts of oppression separate from that which is sought in respect of the diversion of business, I do not consider it necessary to resolve these factual disputes.

Relief

1. [552]

   I have found that each of Ms Xie and Mr Zhang breached their fiduciary duties to Firmtech, and that each of Aluminum and Logikal is liable under the second limb of Barnes v Addy for having knowingly assisted in their breach of duty.

2. [553]

   The relief sought by the Plaintiffs in respect of the breach of fiduciary duties included the declaration of a constructive trust, an account of profits and equitable compensation.

3. [554]

   The Plaintiffs stated in their closing submissions that they have not yet made an election between compensation and an account of profits if they succeed. In Xiao v BCEG International (Australia) Pty Ltd (2023) 111 NSWLR 132; [2023] NSWCA 48 at [43], Gleeson JA (with Mitchelmore JA and Griffiths AJA agreeing) observed that:

4. [555]

   An election between these remedies will generally only be irrevocable after one remedy is fully satisfied by the entry of judgment: at [46]. Although a plaintiff cannot obtain both equitable compensation and an account of profits from a single defendant, because the liability of the defendant founding the availability of relief is the same (at [68]), a split election between remedies is available against different defendants (at [71]), such that equitable compensation may be sought against a defendant fiduciary while an account of profits is sought against a knowing participant in that fiduciary’s breach.

5. [556]

   I address below the scope of the relief available to the Plaintiffs for the breaches of fiduciary duties which have been established.

6. [557]

   In addition, I have found that Ms Xie and Mr Zhang breached their statutory duties to Firmtech under ss 180, 181 and 182 of the Act, and that Aluminum and Logikal were involved in those contraventions. Pursuant to s 1317H(1) of the Act, the Court has power to order the Zhang/Xie Parties to compensate Firmtech for damage which resulted from those contraventions. Any such order “must specify the amount of the compensation”. Section 1317H(2) provides that: “In determining the damage suffered by the corporation … for the purposes of making a compensation order, include profits made by any person resulting from the contravention …”. This provision empowers the Court to compensate for profits made from a contravention, without proof of a corresponding loss: Grimaldi v Chameleon Mining (No 2) at [630]-[631].

7. [558]

   It is unlikely (and the Plaintiffs did not submit) that, in the circumstances of this case, the scope of the relief available under s 1317H would be broader than the scope of the relief available in respect of the claims for breach of fiduciary obligations. Accordingly, I do not separately consider below the relief available under s 1317H. Further, for reasons I explain below, the Court is not in a position at this time to assess the quantum of compensation payable to Firmtech, and therefore is not in a position at this time to make an order under s 1317H(1).

8. [559]

   The Plaintiffs did not seek, in respect of the oppression claim, any relief additional to that sought in respect of the claim for breach of fiduciary and statutory duties, other than some consequential relief. Specifically, Mr Xu submitted that, if I determined that relief should be awarded to Firmtech, I should exercise the power under s 233(1)(j) of the Act to order that Mr Xu be appointed a director of Firmtech. As matters currently stand, Mr Zhang is the sole director of Firmtech (although each of Mr Xu and Mr Zhang continues to own 50% of the shares). I will give the parties an opportunity to make further submissions on the necessity for, and nature of, any such consequential relief in light of the findings that I have made.

9. [560]

   I have determined that Mr Xu’s claims that Ms Xie and Mr Zhang breached the terms of their pre-incorporation contract with him and that Ms Xie and Mr Zhang breached fiduciary obligations owed to Mr Xu have not been established.

10. [561]

    If the claim for breach of fiduciary duties owed to Mr Xu had been established, this claim would have raised issues in terms of relief similar to those which are addressed below in respect of Firmtech’s claims for breach of fiduciary duties (although as a 50% shareholder of Firmtech, Mr Xu would have suffered only half of the amount of the loss suffered by Firmtech, and would be entitled to only half of the profits to which Firmtech is entitled).

11. [562]

    If the claim for breach of contract had been established, on the basis that there was the breach of an express term that Aluminum would not compete with Firmtech, then the issue of the damages for the loss which had suffered by reason of such a breach would raise considerations of a type similar to the issues which arise in respect of equitable compensation for loss suffered as a result of the diversion of work from Firmtech to Aluminum.

12. [563]

    By prayers 21 and 22 of the Amended Summons, the Plaintiffs seek declarations that each of Aluminum and Logikal holds the assets of its business on constructive trust for Firmtech.

13. [564]

    The Plaintiffs relied on the following statement of principle by Mason J in Hospital Products at 115-116:

14. [565]

    The Plaintiffs submitted that those observations were apt to apply to the present case, and contended that the preferable form of relief for the breaches of fiduciary obligations “may ultimately be an order that the whole of the businesses of Aluminum and Logikal are held on trust for Firmtech, with the consequence that Mr Xu and Mr Zhang/Ms Xie each have the economic benefit of 50% - as was intended in 2018”.

15. [566]

    There are two main difficulties with this submission.

16. [567]

    First, Firmtech has pleaded, and established, that certain projects were wrongly diverted to Aluminum and Logikal. Leaving aside those specific projects which have been addressed above, Firmtech has not established that, in terms of the passage set out above, every other opportunity which Aluminum and Logikal has received to date, or every advance which those companies have made to date, has been directly attributable to resources and benefits provided by Firmtech. For example, as outlined further below, there was evidence that a substantial part of the work performed by Logikal in the last 12 months has been work for Meriton, which was never a client of Firmtech. The relationship with Meriton is one that has been created by the endeavours of the Zhang/Xie Parties. In the Hospital Products case, Mason J (who was the only member of the Court to hold that there was a relevant fiduciary duty) found that the claim for a constructive trust of all of the assets of the relevant entity, H.P.I., ranged “far beyond the profits and benefits obtained by H.P.I. in breach of its fiduciary duty”, and did not “make any allowance for the contribution in time, effort and finance by H.P.I. to the acquisition and creation of the assets which it held” (at 114).

17. [568]

    Secondly, the Plaintiffs’ submission focuses on the parties’ intentions in 2018, when Firmtech was established. However, by the end of January 2021, the parties had agreed to take steps to separate their financial affairs and to close down Firmtech’s operations, following which they would be free to pursue separate businesses in the same industry on their own account. The effect of the proposed order would be to force the parties back into a position of equal ownership and control of a company operating a business in the aluminium windows and doors industry, this being a state of affairs which the parties intended to bring to an end several years ago.

18. [569]

    The wrong on the part of Ms Xie and Mr Zhang, which gives rise to an entitlement for relief, was not the pursuit of new business opportunities for their own benefit after a point in time when the process of separation had been completed, when Firmtech had ceased to operate and when the parties were pursuing separate business on their own account. Instead, it was the diversion of business opportunities for their own benefit while Firmtech was continuing to trade and while they remained responsible for its Windows and Doors Business.

19. [570]

    The Plaintiffs have not established that the whole of the undertaking of Aluminum and Logikal as at the present date is the result of the diversion of business from Firmtech up to around the last quarter of 2021, rather than from the pursuit of new business opportunities and connections which have arisen since that time. I address this issue further below when dealing with an account of profits.

20. [571]

    In those circumstances, this is not a case where, to use Mason J’s words in Hospital Products at 116, “relief by way of constructive trust is merely a means of giving effect to the fiduciary’s basic liability to an account”. Instead, I consider that the imposition of a constructive trust over the whole of the assets and undertaking of Aluminum and Logikal would go beyond the scope of the liability for which the Zhang/Xie Parties should account for profits.

21. [572]

    There are two distinct components to the remedy of an account of profits: first, that an account should be taken of the profits which the defendant has earned, and, secondly, that the amount of profits so found to have been earned should be paid by the defendant to the plaintiff: Town & Country Property Management Services Pty Ltd v Kaltoum [2002] NSWSC 166 at [84].

22. [573]

    Where the rule applies, the liability of the fiduciary does not depend on the fact that the person to whom the duty is owed has suffered injury or loss: Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 at 394 per Gibbs J; [1975] HCA 8.

23. [574]

    A fiduciary must account for a profit or benefit “if it was obtained either (1) when there was a conflict or possible conflict between his fiduciary duty and his personal interest, or (2) by reason of his fiduciary position or by reason of his taking advantage of opportunity or knowledge derived from his fiduciary position”: Warman International Ltd v Dwyer at 557 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ). Further, a person who knowingly participates in a breach of fiduciary duty is liable to account to the person to whom the duty was owed for any benefit he has received as a result of such participation: Consul Development v DPC Estates at 397 per Gibbs J.

24. [575]

    Although the “assessment of the profit will often be extremely difficult in practice”, it is nonetheless necessary “to determine as accurately as possible the true measure of the profit or benefit obtained by the fiduciary in breach of his duty”: Warman International v Dwyer at 558.

25. [576]

    In that regard, the High Court in Warman International v Dwyer at 558 referred with approval to the following description by Mason J (Hospital Products at 110) of two approaches to determining the fiduciary’s liability:

26. [577]

    In Warman International v Dwyer, the Court continued (at 561) as follows:

27. [578]

    Whether a benefit can be said to have been obtained as a result of a breach of fiduciary duty, or as a result of knowing participation in a breach of fiduciary duty, “is a question of causation or contribution that depends on ‘a precise examination of the particular facts’ of the case”: Ancient Order of Foresters v Lifeplan at [9], Kiefel CJ, Keane and Edelman JJ. In that case, their Honours observed (at [13]) that:

28. [579]

    Their Honours added (at [14]-[15]) that there are two ways in which a wrongdoer might discharge that onus and reduce the extent of the liability to disgorge profits. The first is by proving his or her entitlement to an allowance for costs incurred, and labour and skill employed (although their Honours noted that this “can involve notorious difficulties in attribution of costs”). The second is by demonstrating that “the benefit or advantage is beyond the scope of the liability for which the wrongdoer should account for profits”. This might be established “if the profit or benefit has no reasonable connection with the wrongdoing”. Their Honours continued (at [16]):

29. [580]

    In the same case, Gageler J observed (at [83]) that the “cardinal principle of equity” is that the remedy must be fashioned to fit the nature of the case and the particular facts. Identification of the benefit or gain which for which a defendant fiduciary or knowing participant is to be ordered to account is the outcome neither of judicial discretion nor of the determination of “a mere factual issue of causation”, but is instead “a matter of judgment informed by equitable principle”. However, that does not mean that equity is ignorant of questions of causation. Rather, “questions of causal nexus in a remedial context must be addressed by reference to the equitable obligation breach of which is to be vindicated by the remedy that is sought” (at [84]). Accordingly, his Honour held (at [85], footnotes omitted) that:

30. [581]

    A causal connection will exist if the benefit or gain to the fiduciary or knowing participant would not have been obtained “but for” the breach: Ancient Order of Foresters at [9], [88]. Further, whatever the position for wrongdoing that is not marked by dishonesty, a defendant cannot avoid liability to disgorge profits dishonestly made by showing that those profits might have been made honestly: Ancient Order of Foresters at [9]. So, for example, in Ancient Order of Foresters at [19], Kiefel CJ, Keane and Edelman JJ commented that it was important not to be distracted by the consideration that, once the errant fiduciaries had terminated their employment with Lifeplan (which gave rise to the fiduciary relationship), they would have been at liberty to solicit the business connections of Lifeplan for their own benefit and, should they so choose, for the benefit of the entity which was a knowing participant in their breach.

31. [582]

    In the present case, each of the projects which was diverted to Aluminum or Logikal during the period while Mr Zhang and Ms Xie were managing Firmtech’s Windows and Doors Business represents a profit or benefit obtained in circumstances where there was a conflict between their fiduciary duties and their personal interests, or obtained by reason of their fiduciary positions, or by reason of their taking advantage of opportunity or knowledge derived from their fiduciary positions. Further, Aluminum and Logikal obtained those projects as a result of their knowing involvement in Mr Zhang’s and Ms Xie’s breaches of their fiduciary obligations.

32. [583]

    It follows that the Zhang/Xie Parties are liable to account for the profits obtained by them as a result of the diversion of each of those projects.

33. [584]

    The Plaintiffs went further and contended that the account of profits should extend to the whole of the ongoing business of Aluminum and Logikal. This submission was advanced on the basis that the business connections of Firmtech were wrongly appropriated by the defaulting fiduciary.

34. [585]

    However, the evidence does not establish that business connections of Firmtech’s business underpin the whole, or even a substantial part of, the ongoing business of Logikal and Aluminum. In the year ending 30 June 2024, the work done through Logikal was much greater in extent that the work done through Aluminum. (According to the report of the Plaintiffs’ expert, the revenue for this financial year (pro rata) was $24.379m for Logikal and $0.599m for Aluminum.) Significantly, Logikal’s current clients – namely, Karimbla Construction Services (which is part of the Meriton group), MN Builders and ORA Constructions – were never clients of Firmtech.

35. [586]

    As regards Karimbla Construction Services and MN Builders, there was no evidence as to how these clients had been obtained by Logikal. The Plaintiffs submitted that, in those circumstances, there was no basis to conclude that the profits attributable to Logikal’s contracts with these clients have been generated by the skill, efforts, property and resources of Ms Xie and Mr Zhang (see Warman International v Dwyer at 561). However, I do not consider the absence of such evidence to be critical. Whether these business connections were obtained by hard work, luck or through a third party, they were not obtained through the roles which Mr Zhang and Ms Xie performed at Firmtech in the period up to around August 2021. The Plaintiffs did not, in their submissions, refer to any evidence to establish that the connections with these entities were business connections of Firmtech, let alone that Mr Zhang and Ms Xie obtained such business connections from Firmtech as a result of their breach of their fiduciary obligations to Firmtech.

36. [587]

    The Plaintiffs referred to evidence that Firmtech had, in 2019, approached Meriton for work. They relied on a statement by Beach J in Directed Electronics v OE Solutions at [232], which is quoted in paragraph [464] above, that directors and senior employees “are precluded from obtaining for themselves or another any property or business advantage belonging to their employer, or for which it has been negotiating … This is particularly so where the director or senior employee has been a participant in the negotiations on behalf of the employer” (emphasis added).

37. [588]

    Plainly, each case must depend on its own facts. I do not consider that this statement of principle by Beach J extends to any form of engagement with a potential client which might be caught by the term “negotiation”, no matter how distant in the past or how fleeting the engagement.

38. [589]

    The extent of the evidence regarding prior communications between Firmtech and Meriton is as follows:

    1. (1)

       On 23 July 2019 at 3.40pm, a Firmtech employee, Mr Skillicorn, sent an email to Helen Williams of Meriton proposing an introductory meeting with Mr Zhang and Ms Xie. Mr Skillicorn suggested “a quick coffee together so you guys could meet face to face, FirmTech are already working in Canberra and it may be good to touch base”.

    2. (2)

       The following morning, Ms Williams responded, “respectfully declining your offer to meet”. This email stated that Meriton was struggling to keep its “loyal sub-contractors working”, and therefore any meeting to discuss potentially taking on Firmtech as a subcontractor “would be not productive for both parties”.

    3. (3)

       On the same day, Mr Skillicorn replied asking for Meriton to “keep us in mind” for future work.

    4. (4)

       There was no further communication between Meriton and Firmtech following this exchange.

39. [590]

    This exchange could scarcely be described as a “negotiation” between Firmtech and Meriton, even on the widest use of the term. Nor could it be said that Mr Zhang and Ms Xie had been “a participant in … negotiations” between Firmtech and Meriton. There is no evidence that either of them, while at Firmtech, had any communication with any person at Meriton.

40. [591]

    As regards ORA Constructions, I have referred above to the Koko Molongo Project. This was a project for which Firmtech had issued a quotation in 2019, and which Logikal subsequently sought, and obtained, in 2021.

41. [592]

    That provides some basis to conclude that ORA Constructions was a business connection of Firmtech’s business which was, as a result of Mr Zhang’s and Ms Xie’s breach of duty, diverted to Logikal. I have accepted that Logikal is obliged to account for the profits from this diverted project. However, it does not follow that Logikal has to account for any other profits subsequently made from this business connection.

42. [593]

    On 30 January 2021, Mr Xu had agreed with Ms Xie and Mr Zhang to take steps to close down Firmtech, and to go their separate ways. So long as that process was ongoing, and Mr Zhang and Ms Xie remained responsible for operating Firmtech’s Windows and Doors Business, they were obliged to act in the best interests of Firmtech and not to promote their own interests, including by diverting opportunities in respect of projects for which Firmtech had tendered (such as the Koko Molongo project) from Firmtech to Logikal or Aluminum.

43. [594]

    The position, however, changed after the point in time when Firmtech effectively ceased operations. I have concluded that, insofar as any new work was sought or obtained by Logikal or Aluminum from around the last quarter of 2021 onwards, including by using business connections which Mr Zhang and Ms Xie had obtained as a result of their positions at Firmtech (such as any further projects with ORA Constructions), this did not amount to a breach by Mr Zhang or Ms Xie of any fiduciary obligation owed to Firmtech.

44. [595]

    By this time, Mr Xu had established FAWD for the purpose of operating a business in the aluminium windows and doors industry, had taken control of Auscon for the purposes of operating a construction business, and had commenced quoting for jobs through those two entities. I have determined that the parties agreed at the 30 January meeting that when the steps to separate their financial affairs had been completed, and when Firmtech had ceased operations, they would be free to pursue separate businesses on their own account. Given that was the case, it was not a breach of the fiduciary duties which Mr Xu owed to Firmtech for him to pursue, from around the time that Firmtech ceased operations, opportunities for FAWD or Auscon to obtain new work with Firmtech’s previous clients or business connections. Similarly, it was not a breach of the fiduciary duties which Ms Xie and Mr Zhang owed to Firmtech for them to pursue, from this point in time, opportunities for Logikal or Aluminum to obtain new work with Firmtech’s previous clients or business connections (including any projects with ORA Constructions for which Logikal quoted after Firmtech had ceased operations).

45. [596]

    I consider that any benefit which was pursued and obtained by Aluminum or Logikal after Firmtech ceased operations, as a result of using previous business connections of Firmtech’s, is beyond the scope of the liability for which the Zhang/Xie Parties should account for profits. By late 2021, the directors and shareholders of Firmtech (Mr Xu and Mr Zhang) were pursuing their own separate businesses, on their own account, and the previous business connections of Firmtech were equally available to their respective businesses. These was no evidence that any projects which were obtained by Aluminum or Logikal from late 2021 onwards were obtained, or performed, using any intellectual property belonging to Firmtech, or any proprietary knowledge which Mr Zhang or Ms Xie obtained through their roles at Firmtech. While Mr Zhang and Ms Xie had a general fund of knowledge and expertise in the aluminium windows and doors industry, that was the result from having worked in the industry for many years (including from well before Firmtech was established).

46. [597]

    For those reasons, I have determined that Firmtech is not entitled to an account of profits in respect of the whole of the business of Aluminum and Logikal (nor to a constructive trust over the whole of their assets and undertaking). Instead, Firmtech is entitled to an account of profits in respect of the projects for which Aluminum or Logikal quoted or tendered, or which those companies otherwise sought to obtain, prior to Firmtech ceasing operations. However, there should not be an account of profits in respect of any projects for which Aluminum or Logikal quoted or tendered, or which those companies otherwise sought to obtain, only after Firmtech ceased operations.

47. [598]

    Firmtech is therefore entitled to an account of profits in respect of the following projects which Aluminum and Logikal sought or obtained prior to Firmtech ceasing operations in late 2021:

    1. (1)

       the Campbell 5 Project (see paragraphs [86]-[130] above);

    2. (2)

       Embark on Northbourne (see paragraphs [131]-[154] above);

    3. (3)

       the Founders Lane Project (see paragraphs [155]-[167] above);

    4. (4)

       the Epping Apartment Project (see paragraphs [213]-[225] above);

    5. (5)

       the Elara Shopping Centre (see paragraphs [226]-[237] above);

    6. (6)

       Akora Residences and Altair No 1 (see paragraphs [238]-[239] above);

    7. (7)

       the Aire Project (see paragraphs [326]-[353] above);

    8. (8)

       St Dominic’s College Project (see paragraphs [354]-[365] above);

    9. (9)

       the Spring Square Project (see paragraphs [366]-[389] above);

    10. (10)

        the Koko Molongo Project (see paragraphs [391]-[394] above);

    11. (11)

        the Ingleburn Project (see paragraph [395(1)] above);

    12. (12)

        the project at 45 Ainslie Avenue, Canberra, ACT (see paragraph [395(2)] above);

    13. (13)

        the project at 121-123 Haig Street, Maroubra, NSW (see paragraph [395(3)] above);

    14. (14)

        the project at 25 Ney Street, Mascot, NSW (see paragraph [395(4)] above); and

    15. (15)

        the project at 32 Picton Street, Mascot, NSW (see paragraph [395(5)] above).

48. [599]

    As I explain below, the expert evidence has not addressed the quantification of profits derived from the diverted projects, but has instead addressed profits on a “whole of business” approach. Nonetheless, the Zhang/Xie Parties accepted that it was open to the Court to order an account of profits in relation to specific projects, which would then need to be quantified.

49. [600]

    If, contrary to the views I have expressed, the scope of liability for which the Zhang/Xie Parties must account for profits extended to opportunities which arose, and were pursued or obtained, after a point in time when Firmtech ceased operations, I would have considered that there were discretionary grounds for declining to award, or for limiting, an account of profits in respect of any such opportunities.

50. [601]

    In Warman International v Dwyer at 559, the High Court observed that an account of profits, like other equitable remedies, is discretionary, and “will be defeated by equitable defences such as estoppel, laches, acquiescence and delay”. The Court added (at 559) that:

51. [602]

    There are two aspects of Mr Xu’s conduct which are relevant to the question whether relief should be granted in respect of any projects which Aluminum or Logikal sought from the last quarter of 2021 onwards.

52. [603]

    First, from around the middle of 2021, Mr Xu was pursuing, through FAWD, opportunities for new work in the aluminium windows and doors industry, using Firmtech’s name and logo. In addition, Mr Xu was pursuing, through Auscon, opportunities for new work in the construction industry. As set out at paragraph [412] above, Mr Xu was of the view that, by this time, Firmtech had “expire[d]”.

53. [604]

    From around 2023, Mr Xu shifted the aluminium windows and doors work from FAWD to Auscon, because of litigation regarding FAWD’s use of the Firmtech logo. At some point in time, Mr Xu’s brother again became sole shareholder and director of Auscon, but Mr Xu continues to be associated with Auscon, as he holds the building licence upon which Auscon operates, and he is responsible for the aluminium windows and doors component of its business.

54. [605]

    In short, since the second half of 2021 (that is, from the time when Firmtech ceased operations or, in Mr Xu’s words, “expired”), Mr Xu has been involved in the operations of two companies which have been performing work of the type which had previously been undertaken by Firmtech in the two businesses which it operated, namely, its Windows and Doors Business and its construction business. He did not give any evidence in his affidavits as to the clients, projects or profits of those two businesses.

55. [606]

    Secondly, Mr Xu delayed in raising any issue about the profits being made by Aluminum and Logikal, in circumstances where he was himself pursuing business through FAWD and Auscon. As set out in paragraphs [419]-[426] above, on 2 July 2021, Mr Xu’s solicitors wrote to Mr Zhang and Ms Xie stating that Mr Xu had become aware that Mr Zhang and Ms Xie were “using the premises and employees at [the Revesby Factory] for projects not associated with Firmtech Aluminum”. Mr Xu’s solicitors did not demand that this cease, and did not state that this would or might give rise to a liability to account for profits, but instead stated: “If you wish to do so, appropriate arrangements need to be made”. This suggested that Mr Xu’s main concern was that expenses should be shared between the two competing businesses. On 15 July 2021, the solicitors for Mr Zhang and Ms Xie replied, noting that Mr Xu had been operating FAWD from the Revesby Factory and had “been tendering for work that could be conducted by [Firmtech]”, which was asserted to be a breach of his duties to Firmtech. This letter proposed that “the parties agree to meet to discuss a potential resolution of all matters”. Mr Xu did not take up this offer. On 13 December 2021, the solicitors for Mr Zhang and Ms Xie sent a further letter to Mr Xu’s solicitors, following up on the lack of response to the letter of 15 July 2021. Through this correspondence, Mr Xu did not put the Zhang/Xie Parties on notice that he intended to seek any relief in the nature of an account of profits, and did not take steps to seek any interlocutory relief, prior to commencing proceedings in July 2022 by an ex parte application.

56. [607]

    Having regard to those matters, I consider that there is force in the Zhang/Xie Parties’ criticism that, following July 2021, Mr Xu stood by and permitted the Zhang/Xie Parties to make profits from new projects of a type previously performed by Firmtech, while he was himself (to the Zhang/Xie Parties’ knowledge) undertaking similar projects on his own account, and that in those circumstances it is inequitable for him to claim an entitlement to the Zhang/Xie Parties’ profits in that period. However, I do not need to determine whether, and to what extent, any entitlement to profits in respect of contracts sought by the Zhang/Xie Parties from late 2021 onwards should be reduced by reason of this conduct on the part of Mr Xu, since I have determined that there is no entitlement to relief in respect of such contracts.

57. [608]

    Equitable compensation is a remedy available to the victim of a breach of fiduciary duty against both the fiduciary and any other person who knowingly participated in that breach and has thereby become subject to a personal liability as a “constructive trustee” by application of the principles derived from Barnes v Addy: Greater Pacific Investments Pty Ltd (in liq) v Australian National Industries Ltd (1996) 39 NSWLR 143 at 153 per McLelland AJA (Priestley and Meagher JJA agreeing).

58. [609]

    The object of equitable compensation is to restore persons who have suffered loss to the position in which they would have been if there had been no breach of the equitable obligation: O’Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262 at 272 per Spigelman CJ (Priestley and Meagher JJA agreeing).

59. [610]

    In order to obtain equitable compensation for breach of a fiduciary duty, it is necessary for the plaintiff to establish “a sufficient connection (or ‘causation’) between breach of duty and … the loss sustained”: Maguire v Makaronis at 468 per Brennan CJ, Gaudron, McHugh and Gummow JJ. When assessing causation for the purposes of equitable compensation, the “true inquiry is whether the loss would have happened had there been no breach, not whether the loss was caused by or flowed from the breach”: O’Halloran at 276 per Spigelman CJ (with whom Priestley and Meagher JJA agreed).

60. [611]

    In Ancient Order of Foresters at [88], Gageler J observed as follows (footnotes omitted):

61. [612]

    The Plaintiffs submitted that, in assessing the counterfactual, the Court “should assume that the defendants did not engage in any of the wrongful conduct; and should then ascertain whether in that counterfactual Firmtech would have nevertheless ceased to conduct its aluminium windows and doors and façade business”.

62. [613]

    I am satisfied that, in the counterfactual posited by the Plaintiffs, Firmtech would nonetheless have ceased to operate its Windows and Doors Business. By early 2021, Mr Zhang and Ms Xie were dissatisfied with Mr Xu as a business partner and did not want to continue in an endeavour in which the profits were shared with him, in particular because they considered that the profits of the business were largely generated by their own efforts, rather than those of Mr Xu, who was away from the business for extended periods. Mr Zhang acknowledged in cross-examination that he regretted entering into a partnership arrangement with Mr Xu, and had come to the view that an arrangement whereby Mr Xu shared 50% of the profits of the business was a bad deal. Mr Xu, for his part, understood that if Mr Zhang and Ms Xie wanted to end their partnership with him, he had to accept this: “I agree with them to leaving because people decide to leaving you, how you stop them leaving you, how? You can’t stop them.”

63. [614]

    It was not a breach of their duties for Mr Zhang and Ms Xie to seek to separate their affairs from those of Mr Xu or to propose the closing down Firmtech’s operations as part of the separation of their affairs. Those are steps which would likely have been taken whether or not Mr Zhang and Ms Xie breached their obligations.

64. [615]

    Instead, Mr Zhang and Ms Xie breached their duties by diverting business opportunities from Firmtech to Aluminum and Logikal, including after the parties had agreed to take steps to close Firmtech, but while that process was still being undertaken and while Mr Zhang and Ms Xie remained responsible for running Firmtech’s Windows and Doors Business.

65. [616]

    The loss suffered by Firmtech as a result of that conduct was the loss of those business opportunities which were diverted from Firmtech to Aluminum and Logikal in the period when Firmtech was operating its Windows and Doors Business (being those projects set out in paragraph [598] above). It is likely that, but for the breach of the fiduciary and statutory obligations which they owed to Firmtech, these particular projects would have been awarded to and performed by Firmtech, rather than Aluminum and Logikal. That inference can be comfortably drawn because in a number of cases, the clients in question had invited Firmtech to tender for those projects, had received quotations from Firmtech and had engaged in discussions with Firmtech about those quotations, prior to Ms Xie and Mr Zhang taking steps to divert those projects to Aluminum or Logikal. Further, the fact that Ms Xie and Mr Zhang were able to negotiate agreements for Aluminum and Logikal to perform these contracts (using Firmtech’s premises, staff and equipment) strongly indicates that Ms Xie and Mr Zhang would have been able to negotiate agreements for Firmtech to perform those same contracts at the same price.

66. [617]

    However, for the reasons given above, I am not satisfied that any contract which was sought only after the “separation” steps had been completed and after Firmtech had ceased operations, represents a contract which, but for the Zhang/Xie Parties’ breaches, Firmtech would have obtained.

67. [618]

    Further, for the same reasons, I am not satisfied that Firmtech’s loss, as a result of the breaches of duty by Mr Zhang and Ms Xie, is to be measured by calculating the current value of the business of Aluminum and Logikal, on the basis that this represents the loss in value of Firmtech shares (which are currently worth $nil) as a result of the wrongdoing. The Plaintiff’s expert noted that such an approach depends on an assumption that all operating and trading income in fact received by Aluminum and Logikal represents income that should have been received by Firmtech, on the basis that it is business that ought to have been performed by Firmtech. I have concluded that this assumption is not made out.

68. [619]

    As noted above, there is no evidence before the Court regarding the profits which have been earned by Aluminum and Logikal, or which would have been earned by Firmtech, from the specific projects which were diverted from Firmtech to Aluminum or Logikal up to around July 2021. There is evidence regarding the total quantum of invoices rendered by Aluminum or Logikal, and of payments received by them, in respect of specific projects, and there is evidence (in the form of the financial statements of each entity) of the operating expenses of Firmtech, Aluminum and Logikal, but no attempt has been made to quantify profits which have been lost as the result of the diversion of the particular projects which I have identified in paragraph [598] above. Accordingly, there is not a basis for quantifying any order for equitable compensation at this time. However, in circumstances where I have determined that an account of profits should be ordered in respect of those projects, the issue of the quantification of equitable compensation in the light of these reasons can be addressed as part of that stage of the proceedings.

Quantification

1. [620]

   The parties led expert accounting evidence in relation to the quantification of loss. The Plaintiffs’ expert was Mr Martin Cairns of Sapere Forensic, and the Zhang/Xie Parties’ expert was Mr Wynand Mullins of FTI Consulting.

2. [621]

   The Plaintiffs instructed Mr Cairns to assess Firmtech’s loss on the assumption that all “operating and trading income received by Aluminum and/or Logikal after the establishment of Firmtech should have been received by Firmtech on the basis that it is business that ought to have been conducted by Firmtech” but for the alleged wrongful conduct of the Zhang/Xie Parties.

3. [622]

   Similarly, the Zhang/Xie Parties instructed Mr Mullins to prepare a response to Mr Cairns’ report on the assumption that the “financial performance achieved by Logikal and Aluminum should have been achieved by Firmtech” but for the alleged wrongful conduct.

4. [623]

   The experts stated in their joint report that each of them assumed “that the business operated by A&L [Aluminum and Logikal] would have been entirely operated by Firmtech but for the Alleged Wrongdoing / Alleged Wrongful Conduct”, and noted that if the Court “finds that this assumption is incorrect, then the Experts’ assessments for all instructed questions may change”.

5. [624]

   Mr Cairns confirmed in cross-examination that he had no input in relation to the formulation of the assumption, and that his calculation of loss was limited to the assumption that he was asked to make.

6. [625]

   For the reasons given above, I have found that the assumption on which each expert was instructed to assess loss is incorrect. No assessment of loss has been prepared on the basis of any other assumption. Mr Cairns did not, for example, prepare any calculation of loss based upon an assessment of loss in respect of the specific projects which were pleaded as having been diverted from Firmtech to Aluminum or Logikal.

7. [626]

   The Zhang/Xie Parties did not submit that this was fatal to the Plaintiffs’ claim for relief. They acknowledged that the Court is not bound by the methodology adopted by the experts on the basis of their instructed assumptions, and could take a different course regarding the assessment of loss (or the account of profits), in the light of the factual findings made based upon the evidence at trial.

8. [627]

   I have determined that there should be an account of profits in respect of the projects which were sought, or obtained, by Aluminum or Logikal up to July 2021, but not in respect of those sought and obtained thereafter, when Firmtech had effectively ceased operations and the parties were operating separate businesses in the aluminium windows and doors industry.

9. [628]

   Accordingly, it is not necessary to resolve the various disputes which arose between the experts concerning the quantification of loss on the assumption that the whole of the business operated by Aluminum and Logikal would have been operated by Firmtech.

10. [629]

    Nonetheless, I have addressed each of the various points of dispute below. I have done so in case any of them is relevant to the account of profits, or the assessment of loss, in respect of the specific projects which were diverted by Aluminum or Logikal, and also in case I am wrong in rejecting the “whole of business” approach.

11. [630]

    As recorded in their joint report, the experts agreed to adopt “fair value” as the basis of value (which does not include any discount for lack of control or marketability); agreed to value the combined business of Aluminum and Logikal (A&L) on the premise of it being a going concern, and using an income approach (specifically the capitalisation of future maintainable earnings, or CFME, method); and agreed to apply a capitalisation multiple of 3.8x of EBIT to assess the value. The experts also agreed to adopt the same assessment period, from 1 July 2019 to 31 December 2023.

12. [631]

    The specific points of dispute between the experts were as follows:

    1. (1)

       which accounting records should be used in determining the combined profits of A&L;

    2. (2)

       whether the future maintainable earnings of A&L should be adjusted to take account of some $42.1m of purchase orders which Logikal and Karimbla have entered into since 1 November 2023 (the Karimbla Documents); and

    3. (3)

       whether there should be adjustments made, when normalising the profits of A&L, in respect of:

13. [632]

    Aluminum and Logikal discovered various sets of financial statements, which provided different information in respect of the same reporting periods.

14. [633]

    Mr Cairns prepared his first report on the basis of documents produced by the Zhang/Xie Parties in discovery in August 2023 and April 2024, including financial reports of Logikal and Aluminum for FY2022 (which were unsigned) and a backup of Logikal’s and Aluminum’s MYOB accounting software, which he used to assess their financial performance for FY2023.

15. [634]

    In contrast, Mr Mullins prepared his report on the basis of financial reports of Logikal and Aluminum for FY2022 which were signed and dated 19 December 2023 (approximately 18 months after the end of FY2022); and financial reports of those entities for FY2023 which were signed and dated 25 June 2024 (around one year after the end of the financial year, and three days before Mr Mullins’ report was served). Each of those sets of financial statements disclosed a materially worse financial performance than was disclosed by the documents upon which Mr Cairns had relied. Mr Mullins was instructed to assume that the signed financial statements provided to him were, in each case, the correct and final version. Neither Mr Zhang nor Ms Xie gave any evidence, in their affidavits, regarding the different versions of the financial statements.

16. [635]

    In addition, a document was produced on subpoena while the experts were in conclave which was a further version of the FY2021 financial statements of Aluminum. This document was signed by Ms Xie and bore the date 1 July 2021 (that is, one day after the end of the financial year to which the financial statements related). It recorded total sales of around $16.36m and a profit before tax of around $1.22m, whereas the unsigned version of the FY2021 financial statements of Aluminum which the experts used for the purposes of their reports recorded total income of around $4.56m and a profit before tax of $0.113m.

17. [636]

    Both experts expressed doubt about the reliability of the version of Aluminum’s FY2021 financial statements which was dated 1 July 2021, including because it would be unusual for such statements to be finalised one day after the end of the financial year. Neither expert considered that loss should be assessed on the basis of this document. It can therefore be put to one side.

18. [637]

    This leaves the following issues for resolution:

    1. (1)

       for FY2022, which of the two sets of financial reports for Aluminum and Logikal should be used (the unsigned versions originally discovered by the Zhang/Xie Parties, or the restated and signed versions which were dated some 18 months after the end of FY2022); and

    2. (2)

       for FY2023, whether the MYOB data should be used, or the signed financial reports which were signed and dated some 12 months after the end of FY2023.

19. [638]

    The Zhang/Xie Parties submitted that the signed financial statements for FY2022 and FY2023 should be used for the assessment of loss. In particular, they noted that, as well as being signed by Ms Xie as director of Aluminum and Logikal, each of these financial statements was signed by the external accountant who prepared them, being Mr Gu of Aurora Accounting.

20. [639]

    The Compilation Report signed by Mr Gu contained statements that Aurora Accounting had prepared the financial statements; that the director, Ms Xie, was solely responsible for the information contained in those statements, including the reliability, accuracy and completeness of the information; and that the financial statements had been prepared on the basis of the information provided by the director. It also included a statement that because the compilation engagement was not an assurance engagement, Aurora Accounting were not required to verify the reliability, accuracy or completeness of the information provided by management, and did not express an audit opinion or review conclusion on those financial statements. Given those matters, I do not consider that the fact of compilation by an accountant adds significantly to the weight to be afforded to those statements, particularly in circumstances where it has not been shown that the differences between the financial statements are due to any difference in accounting treatment or accounting policies, as opposed to differences in the underlying data used to compile those statements.

21. [640]

    The Zhang/Xie Parties also referred to the fact that the signed financial statements for FY2022 and FY2023 matched the lodged tax returns for those years (whereas the unsigned versions relied upon by Mr Cairns did not). Those tax returns were lodged by Aurora Accounting as the companies’ tax agent, and were accompanied by a declaration, given by Ms Xie, that the information provided to the tax agent for the preparation of the tax return was true and correct. Further, the supporting financial statements were accompanied by a declaration signed by Ms Xie that the financial statements fairly presented the company’s financial position and performance.

22. [641]

    The Plaintiffs contended that there was no evidence from Ms Xie regarding the signed financial statements for FY2022 and FY2023. However, this submission ignores that the evidence included these declarations given by Ms Xie. It was not suggested to her in cross-examination that she did not honestly hold the views expressed in these declarations or that she did not have a reasonable basis for them. I do not consider that it was incumbent on the Zhang/Xie Parties to explain why the signed financial statements did not match earlier, unsigned versions. Instead, I consider that it was for the Plaintiffs to identify some reason why the signed financial statements, which matched the lodged tax returns and which were accompanied by these declarations, should not be accepted as reliable.

23. [642]

    In that regard, the Plaintiffs relied on three matters.

24. [643]

    First, the Plaintiffs noted that Ms Xie also signed the FY2021 report for Aluminum dated 1 July 2021 which was produced during the experts’ conclave, and which both experts agreed is unreliable, and therefore her signature can carry little weight. Although I accept that this matter casts doubt on the care and attention given by Ms Xie when signing the declaration in respect of the FY2021 report that was dated 1 July 2021, I do not consider that this means that doubt is thereby cast on the reliability of the declarations given by Ms Xie to the Australian Taxation Office on the lodging of the tax returns for Aluminum and Logikal for FY2022 and FY2023, particularly because those declarations were given immediately below a notice stating that it is important, before making such a declaration, to “check to ensure that all income has been disclosed and the tax return is true and correct in every detail”, and that the “tax law provides heavy penalties for false or misleading statements on tax returns”. In circumstances where Ms Xie was not asked any questions about these declarations, I infer that she was aware of this notice at the time she gave the declarations, and considered the material in the tax returns, which matched the information in the financial statements, to be true and correct at the time she gave these declarations.

25. [644]

    The Plaintiffs also submitted that, having regard to the financial statements dated 1 July 2021 which were signed by Ms Xie, the Court “is left with the very distinct impression that Ms Xie is content to operate her companies using two different sets of financial records for different purposes”. If any such submission were to be advanced, it should have been put to Ms Xie in cross-examination so that she had an opportunity to address it. However, she was not asked any questions about the discrepancy between the sets of financial statements.

26. [645]

    Secondly, the Plaintiffs noted that both experts relied on unsigned financial statements for financial years prior to FY2022. However, that is explained by the fact that there were no signed financial statements for those earlier years. This is not a reason for preferring unsigned financial statements, or rejecting signed financial statements, in those years where both signed and unsigned versions are available.

27. [646]

    Thirdly, the Plaintiffs submitted that there was a basis to doubt the reliability of the signed FY2022 financial statements, having regard to Mr Cairns’ investigation of the material differences between the signed and unsigned versions. Mr Cairns identified that the difference in reported profit between those two versions of the FY2022 financial statements largely arises from an approximate $0.4m increase in sales revenue, and an approximate $1.2m increase in material and contractor costs, and that these differences pertain to eight journal entries. Mr Cairns reviewed these journal entries and requested supporting invoices to understand the nature of the transactions to which those journals related. Mr Cairns set out a number of concerns with this material, including that the journal entries and supporting documents lacked clear explanations, did not identify the specific transactions to which they related, and lacked supporting invoices or did not match the invoices provided. In addition, he noted that materials and contractor costs should be recorded at the time they are incurred and should not be the subject of post year end reconciliations.

28. [647]

    Mr Mullins was taken to various of these matters in cross-examination and agreed, in respect of a number of them, that there were matters which it would be reasonable to investigate further, and to seek to understand better, but did not agree that these matters provided a basis to conclude that the signed financial reports were unreliable.

29. [648]

    Significantly, Mr Cairns did not express the view, as the result of the concerns which he identified, that the signed financial statements for FY2022 and FY2023 were unreliable. Instead, he concluded that there “are a number of issues as to the reliability of the journals that explain the differences” between the unsigned and signed FY2022 accounts, and that accordingly there “is an increased risk that the [signed] FY2022 Accounts do not provide a reliable basis for assessing Logikal and Aluminum’s historical financial performance”. However, he did not quantify this risk, and he did not express the view that there was no such risk in respect of the unsigned FY2022 accounts (and instead expressed the view that there were “significant concerns over the integrity of the accounting records provided to the Experts”, which included both the unsigned and signed accounts).

30. [649]

    The Plaintiffs did not cross-examine Mr Zhang or Ms Xie about any of these journal entries or the material supporting them. The Plaintiffs submitted that, in circumstances where Mr Zhang and Ms Xie did not address these matters in their evidence, no inference should be drawn in their favour, citing Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419. In particular, they submitted that, in the absence of evidence addressing the issues raised by Mr Cairns, the Court should not proceed on the basis that the adjustments to the accounts which are incorporated in the signed financial statements “are any more likely to reflect reality than the accounting records with which Mr Cairns was provided by discovery”.

31. [650]

    However, Mr Cairns’ report in reply, which raised issues about these matters, was only served on Thursday, 18 July 2024, leaving one business day for the Zhang/Xie Parties to review the report before the hearing commenced on the following Monday. In those circumstances, I do not consider that the Zhang/Xie Parties, who were busy preparing for trial, had an adequate opportunity to investigate each of the matters raised by Mr Cairns about the material supporting the journal entries, and to respond to those matters in their lay evidence.

32. [651]

    Having regard to the matters outlined above, if it had been necessary to determine this issue for the purpose of quantifying profits or loss on a “whole of business” approach (and to the extent that it may be relevant to an account of profits in respect of specified projects), I would have concluded that the signed financial statements for FY2022 and FY2023, which corresponded with the lodged tax returns for those years, should be used in determining A&L’s financial position and performance.

33. [652]

    Following the service of Mr Mullins’ report, Mr Cairns and Mr Mullins were provided with records from one of Logikal’s current customers, Karimbla Construction Services, including contracts, purchase orders and invoices.

34. [653]

    The experts agreed that the preferred approach to reflect the consequence of the Karimbla Documents would be to estimate the expected cash flows from the projects and prepare a discounted cash flow (DCF) valuation analysis on A&L’s business, instead of using the CFME method. However, the experts explained that the Karimbla Documents did not contain sufficient information to enable such an analysis, and so they were unable to undertake their preferred DCF approach.

35. [654]

    The experts had expressed views on the level of the future maintainable earnings (FME) of A&L prior to the Karimbla Documents being produced. These figures were based on the financial information which had been provided to them up to 1 December 2023. Mr Cairns noted that this was a significant limitation on providing an up-to-date assessment of loss and value, particularly since the Karimbla Documents showed that, since 1 November 2023, Logikal has entered into purchase orders with Karimbla of around $42.1m.

36. [655]

    Mr Cairns originally assessed A&L’s future maintainable revenue as $22.357m and its FME as $2.3m. In light of the Karimbla Documents, he substantially revised these figures, increasing A&L’s future maintainable revenue to $55.357m (an increase of $33m), and increasing A&L’s FME to $4.2m.

37. [656]

    In contrast, Mr Mullins who (prior to receipt of the Karimbla Documents) had assessed A&L’s future maintainable revenue to be $24.2m and A&L’s FME to be $1.05m, expressed the view that the Karimbla Documents “do not provide information to inform [him] whether they have an adjusting impact on his estimated FME, and therefore do not adjustment his assessment of FME”.

38. [657]

    This is an issue which goes to the current value of the A&L business. I have rejected the submission that Firmtech’s loss, as a result of the breaches of duty by Mr Zhang and Ms Xie, is to be measured by calculating the current value of the business of Aluminum and Logikal, on the basis that this represents the loss in value of Firmtech shares (which are currently worth $nil). Accordingly, it is not necessary to determine this issue.

39. [658]

    However, if it were necessary to resolve the dispute between the experts, I would have preferred the views of Mr Cairns to those of Mr Mullins in relation to this issue.

40. [659]

    The Karimbla Documents establish that Logikal has entered purchase orders of approximately $42.1m since November 2023. Some $3.5m of this work had been invoiced as at 31 March 2024, such that Logikal could expect to receive a further $38.6m in revenue after that date. Mr Mullins’ position was, in effect, this fact did not have any effect on his assessment of A&L’s future maintainable revenue, which he had assessed at $24.2m before this information became available.

41. [660]

    A&L’s total consolidated sales revenue in FY2023 was $21.6m. Mr Mullins did not provide any cogent reason as to why new information, establishing that Logikal would receive a further $38.6m from a single client, would not have an impact on the assessment of future maintainable revenue which he had provided before that information became available.

42. [661]

    I acknowledge that there is an issue regarding timing, that is, the evidence did not establish when it was expected that this further $38.6m of revenue would be received. This was a matter which could have been, but was not, addressed by the Zhang/Xie Parties. In the absence of such evidence, Mr Cairns conducted an analysis of other purchase orders from the same customer, Karimbla, which indicated that the average length of time from the date of the purchase order until the date of payment was 151 days.

43. [662]

    Mr Mullins acknowledged that Mr Cairns’ approach to analysing this issue was “a sensible approach to look at”, adding: “but then to just stop and take the average of all of the contracts and PO’s [Purchase Orders] over that period, I think that falls short of making it a complete or an appropriate approach”. However, Mr Mullins did not undertake any alternative form of analysis.

44. [663]

    The Zhang/Xie Parties referred to the fact that only five of the past purchase orders analysed by Mr Cairns had a value in excess of $1m (with the highest being $2.5m), and that those five projects had a timeline which was, on average, more than 333 days. However, even if the purchase orders of $42.1m were received over the course of two years, that would still indicate revenue from a single client for each of those two years which was almost equivalent to the whole of Mr Mullins’ estimate of future maintainable revenue before he became aware of the Karimbla Documents (being $24.2m).

45. [664]

    The Zhang/Xie Parties drew attention to the fact that the purchase orders in the Karimbla Documents were for amounts far higher than the ones analysed by Mr Cairns, with the two highest being $17.37m and $10.7m, and 99.5% of the purchase orders (by value) being for a sum greater than $1.4m. On this basis, the Zhang/Xie Parties submitted that “the Karimbla purchase orders bore no meaningful relationship with those considered in Mr Cairns’ analysis”. However, this submission highlights a difficulty with the Zhang/Xie Parties’ position, which maintains that there should be no change to FME in light of the Karimbla purchase orders, despite those purchase orders being for amounts significantly in excess of other purchase orders in the past.

46. [665]

    The Zhang/Xie Parties also referred to Mr Cairns’ acknowledgement, in cross-examination, that in order to make an FME assessment, he needed to know when the construction works would commence and finish, and that this was a matter which he did not know. However, those matters were again within the knowledge of the Zhang/Xie Parties. In the absence of evidence from the Zhang/Xie Parties regarding those matters, and in the absence of any alternative analysis by Mr Mullins regarding when revenue from these projects would be received, I consider Mr Cairns’ analysis, based on the period within which revenue was received in respect of past purchase orders of the same customer, to be reasonable and open.

47. [666]

    Finally, Mr Mullins expressed the view that it is unclear whether the Karimbla purchase orders would affect A&L’s long-term maintainable earnings “as opposed to being a one-off or non-recurring income”. He noted that one of the projects in question was described as “Meriton’s largest project to date”, and said that this “shows that a project of this scale may be rare and non-recurring”. Mr Mullins did not point to any reason why A&L could not expect to continue to obtain a significant volume of work from Meriton/Karimbla in the future, whether that work was across a few large projects or across multiple smaller projects. Mr Mullins is not an expert on the construction industry, and did not express any views regarding trends in that industry. Further, Mr Mullins accepted that A&L’s actual revenue growth in FY2022 and FY2023 was significantly higher than the IBIS industry growth rate.

48. [667]

    Having regard to those matters, I would have determined, if it were necessary to resolve this issue, that the Karimbla purchase orders should be taken into account in determining A&L’s future maintainable earnings.

49. [668]

    The experts agreed on a number of adjustments as being required in order to normalise A&L’s profits. For example, they agreed that intercompany transactions between Aluminum and Logikal should be eliminated, and also agreed that a number of other matters (including a difference in their treatment of a “land tax” cost in Aluminum’s FY2021 financial statements and the adjustment on bad debts) were immaterial.

50. [669]

    There remained a number of points in dispute between them regarding the required adjustments. I briefly address each of these below.

51. [670]

    In normalising profits for the purposes of the business valuation claim, Mr Cairns applied an assumption which he was instructed to make, namely, that the total remuneration to be paid to Ms Xie across each of Firmtech, Aluminum and Logikal was $80,000 per annum, and that Mr Zhang ought not to have been paid any salary at all. He stated in his reply report that he considered the assessment of the appropriate remuneration for Mr Xie and Mr Zhang to be a legal matter.

52. [671]

    Mr Mullins disagreed. He said that the result of Mr Cairns’ instructed assumptions was that his assessment of EBIT omitted the remuneration for a construction manager (Mr Zhang) and understated the remuneration for a general manager (Ms Xie). Mr Mullins accepted that some adjustment to EBIT was necessary because the salaries in fact paid to Mr Zhang and Ms Xie appeared to be above market rates. Accordingly, he allowed full remuneration in determining the loss of profits claim, but allowed only reasonable remuneration in determining the business valuation claim. In particular, for the business valuation claim, he normalised profits by adding back the actual salaries of Mr Zhang and Ms Xie, and then deducting the reasonable remuneration for their roles. He took the figures for reasonable remuneration from an expert report of Mr David May dated 21 June 2024. Mr May’s opinions on reasonable remuneration were not challenged (although, as outlined below, the Plaintiffs disputed that the assumptions for those opinions were established).

53. [672]

    Mr Cairns acknowledged in cross-examination that it was desirable to make an adjustment for reasonable remuneration, but that he was bound by the instruction that he was directed to make. He also accepted that the effect of eliminating the actual salaries and not replacing them with reasonable remuneration was to overstate EBIT:

54. [673]

    The Plaintiffs submitted that there was “no safe basis for the Court to find that Mr May’s opinion as to reasonable salaries for Ms Xie and Mr Zhang reflects the reality of the work (if any) which Ms Xie and Mr Zhang have been performing for Logikal and Aluminum”. In particular, the Plaintiffs submitted that Mr Mullins and Mr May have both proceeded on the basis of extensive assumptions as to the nature of the roles which Ms Xie and Mr Zhang performed for those entities, and that neither Ms Xie nor Mr Zhang gave any evidence regarding those matters.

55. [674]

    This submission ignores that two of the four years in respect of which adjustments have been made in respect of remuneration are FY2021 and FY2022. There was extensive evidence regarding the roles which Ms Xie and Mr Zhang played in Aluminum and Logikal in those financial years and, in particular, extensive documentary evidence of their roles in preparing and issuing quotations, engaging in communications with developers, and managing the business of Aluminum and Logikal (being material upon which the Plaintiffs relied in their case on liability). There is no reason to conclude that their roles changed in any substantial way between FY2021/FY2022 and FY2023/FY2024.

56. [675]

    Further, Mr Xu acknowledged in cross-examination that, while at the commencement of Firmtech’s operations Ms Xie was paid only $80,000 per annum and Mr Zhang received no salary, Mr Xu expected that salaries would be paid if Firmtech became successful. As noted above, A&L’s business has achieved substantial growth, well above industry rates. There is a tension between the Plaintiffs’ contention that Ms Xie and Mr Zhang are operating businesses which should be regarded as having achieved, in a short space of time, future maintainable revenue of around $55.357m per annum, and the Plaintiffs’ contention that it is appropriate to assume that, in such a business, the general manager would be paid only $80,000 per annum and the construction manager would not be paid any salary.

57. [676]

    Accordingly, if it had been necessary to resolve this issue for the purpose of the business valuation claim, I would have preferred Mr Mullins’ approach, namely, that the actual remuneration of Mr Zhang and Ms Xie should be replaced with the mid-point of the range of reasonable remuneration for their roles that is set out in Mr May’s report.

58. [677]

    The experts agreed that intercompany transactions between Aluminum and Logikal should be eliminated. There was, however, a difference between the income recorded by Logikal, in its accounts, for fees which it charged Aluminum and the costs recorded by Aluminum, in its accounts, for the same charges. Mr Cairns eliminated each of the relevant transactions, by eliminating an amount of $7,649,463 from Aluminum’s expenses to Logikal, and eliminating an amount of $7,425,281 from Logikal’s sales to Aluminum. This resulted in an increase in the aggregated profits of $224,182 for the combined A&L business (being the difference between those two figures) In contrast, Mr Mullins netted these transactions to zero.

59. [678]

    Mr Cairns acknowledged in cross-examination that, but for the poor record keeping, it would be expected, ordinarily, that the transactions should cancel each other out, so that no profit is recorded. Given that is so, if it were necessary to resolve the issue, I would have determined that the anomalous “profit” of $224,182 should be disregarded.

60. [679]

    Mr Cairns was also instructed to exclude transactions between A&L and other related corporations (each of which is controlled by Ms Xie and Mr Zhang). In contrast, Mr Mullins was instructed that those transactions were entered in the ordinary course of business. Mr Cairns considered that the resolution of this matter was a legal issue.

61. [680]

    The Plaintiffs contended that there was no evidence to support the assumption that these expenses were in the ordinary course of business.

62. [681]

    Documents were tendered to support at least some of these assumptions regarding expenses. For example, one of the related parties was the HAJ Investment Trust. Mr Mullins was instructed as follows: “HAJ Investment Trust is the registered proprietor of a property at 106/45 Ainslie Ave, Braddon ACT 2612 (Property) which is a commercial office. HAJ allowed Aluminum to rent the Property for various months in the 2021, 2023 and 2024 financial year and these payments relate to that rent”. The Zhang/Xie Parties tendered a series of invoices for “office rent” which were issued by HAJ Investment Trust to Aluminum throughout the period in question.

63. [682]

    I do not consider that it was necessary for Aluminum and Logikal to prove that every transaction recorded as a business expense in the general ledger was in fact a genuine business expense. Section 286 of the Act requires a company to keep written financial records that correctly record and explain its transactions and financial position and performance, and that would enable true and fair financial statements to be prepared and audited. Section 1305(1) of the Act provides that a book kept by a body corporate under a requirement of the Act “is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book”. In Australian Karting Association Ltd v Karting (New South Wales) Incorporated [2022] NSWCA 188 at [129], Gleeson JA (with whom Meagher JA and Simpson AJA agreed) said that:

64. [683]

    The Plaintiffs have not identified any evidentiary basis for concluding that, despite their entry in the general ledgers of A&L, the transactions with the related corporations were not genuine expenses of the businesses of A&L. Accordingly, if it were necessary to determine the issue, I would have decided that these transactions should not be eliminated.

65. [684]

    The experts agreed that legal costs incurred in the ordinary course of business are costs that should be included in the calculation of A&L’s EBIT, but that legal costs incurred in relation to the present proceedings should be excluded.

66. [685]

    Mr Cairns was instructed to exclude all payments on account of legal expenses to the Zhang/Xie Parties’ solicitors (that is, to add back those payments to the EBIT of A&L). Mr Mullins was given an assumption that certain invoices from the Zhang/Xie Parties’ solicitors did not relate to these proceedings, but did not himself review those invoices to determine whether or not this assumption was correct.

67. [686]

    The Plaintiffs submitted that, in these circumstances, the truth of the assumption given to Mr Mullins had not been established. In response, the Zhang/Xie Parties tendered the relevant invoices from their solicitors. Those invoices related primarily to services provided in relation to trademark issues, as well as an issue with a developer (and therefore did not relate to these proceedings). In those circumstances, I am satisfied that the assumption provided to Mr Mullins has been substantiated.

68. [687]

    The experts agreed that, in determining the normalised EBIT of A&L, any non-business expenses should be excluded.

69. [688]

    Mr Cairns identified, from the general ledgers, certain transactions which, based on his experience, appeared to be either personal expenditure or not fundamental to the operations of the business. These included, for example, expenses designated as “international travel”, “pet” and “staff and other entertainment”. Mr Mullins was instructed that these expenses were incurred in the normal course of business, and expressed the view that an amount of $1,000 per month should be allowed for each of “alcohol and tobacconist” and “food and drinks”. In response, Mr Cairns said that, while it is not uncommon for a business to incur food and drink costs (such as for a staff lunch), such costs are typically discretionary and not fundamental to the operation of the business, and that the amounts suggested by Mr Mullins were arbitrary.

70. [689]

    Mr Xu accepted in cross-examination that Firmtech gave generous gifts of alcohol to clients or potential clients; that this was common in the industry; that Firmtech also took clients out for meals; and that he regarded such expenses as having been incurred in the usual course of the company’s business. Mr Cairns agreed in cross-examination that if there was evidence that it was commonplace in the industry to buy gifts of alcohol for clients, he would support include an allowance for alcohol and that the figure which Mr Mullins allowed for this expenses was not reasonable.

71. [690]

    However, in respect of the other expenses in issue, I accept Mr Cairns’ views. In particular, having regard to the descriptions in the general ledger, I accept Mr Cairns’ view that the relevant items were in the nature of discretionary expenditure, rather than being fundamental to the operations of the business. For example, it appears that the entries for “pet” related to an aquarium in the office.

72. [691]

    For those reasons, had it been necessary to resolve this issue, I would have determined that – other than making an allowance for alcohol and food in the amount proposed by Mr Mullins – the “non-business” expenses identified by Mr Cairns should be excluded when determining normalised EBIT.

73. [692]

    It is convenient to deal with the Panania Proceeding and the Lansvale Proceeding together. Although these proceedings concern the sale of two properties owned by different persons, they raise a number of common factual issues.

74. [693]

    In each proceeding, claims are brought regarding certain payments which were made from the settlement proceeds for each property. It is alleged that the vendor’s conveyancer, Auschn (which was controlled by Mr Xu), did not have authority to make those payments. In particular:

    1. (1)

       the claims in the Panania Proceeding relate to two payments totalling $399,413.47 which were made from the settlement proceeds to Mr Xu’s company, Global; and

    2. (2)

       the claims in the Lansvale Proceeding relate to the following payments:

75. [694]

    In response to these claims, Mr Xu contended that he had authority to make each of the payments, and that each was made to discharge a debt owing to himself or to various third parties.

76. [695]

    Despite the claims being narrowly confined, there was a wide-ranging factual enquiry at trial regarding the sources from which, and basis upon which, moneys had been contributed to the purchase of the properties and to the establishment and operation of Firmtech; the manner in which those moneys had been disbursed; and the parties’ knowledge about these matters.

77. [696]

    In circumstances where money for those investments was obtained from family and associates as required, where there was little formal documentation relating to any of these transactions, where there were disputed accounts of conversations about the various transactions, and where the transactions were the subject of opaque WeChat messages, these factual issues were attended with some complexity.

78. [697]

    Accordingly, I have not resolved all of the factual issues that were raised in these proceedings, but have focussed only on those which are essential for the determination of the pleaded claims for relief.

The purchase of the Panania Property

1. [698]

   On 12 February 2018, Ms Xie entered into a contract to purchase a property at 10 Tyalgum Avenue, Panania, New South Wales (the Panania Property). The purchase price was $1,025,000. Ms Xie paid a deposit of $102,500.

2. [699]

   Auschn acted as Ms Xie’s conveyancer in relation to this purchase, and did not charge any fee for its services.

3. [700]

   Mr Xu was the sole director and shareholder of Auschn, which was a licensed conveyancer. Auschn provided its services through Mr Xu, who had been a licensed conveyancer since November 2013.

4. [701]

   On 28 May 2018, the purchase of the Panania Property completed. After adjustments, a balance of $920,265.52 was payable on completion. This balance was paid, in part, by means of a loan which the National Australia Bank advanced to Ms Xie and, in part, by means of funds provided by Mr Xu. There was an immaterial dispute regarding the precise amount contributed by Mr Xu. Ms Xie pleaded that it was $163,256.22 and Mr Xu pleaded that it was $163,353.05, being a difference of only $96.83. In closing written submissions, Mr Xu was content to adopt Ms Xie’s figure.

5. [702]

   There was a factual dispute about whether Ms Xie was bound by the terms of a document entitled “Joint Venture Agreement”. The parties to this agreement were Mr Xu and Ms Xie. The agreement was signed by each of them and dated 9 May 2018.

6. [703]

   Ms Xie contended that she signed this agreement in around June 2018; that she did so without reading it and based on an allegedly misleading statement that Mr Xu made about its effect; and that she did not see the full document until December 2022. In response, Mr Xu maintained that the document was signed on the date it bears, namely, 9 May 2018. He provided a photograph of his computer screen showing that the PDF file for the scanned agreement, including the signature of each of Mr Xu and Ms Xie, was last modified on 11 May 2018. He also denied making misleading statements about its effect.

7. [704]

   The photographic evidence supports Mr Xu’s evidence regarding the date of the agreement. Nothing turns on the balance of the dispute. In his cross claim in the Panania Proceeding, Mr Xu relied on a term of the Joint Venture Deed to the following effect: “Party B [Mr Xu] is entitled to 50% of the profit for sale of the land with all the contributed money paid by Party B”. In closing submissions:

   1. (1)

      Mr Xu confirmed that he did not advance any claim for a share of profits, but only for the repayment of his contribution to the purchase of the Panania Property; and

   2. (2)

      Ms Xie confirmed that, whether or not the Joint Venture Agreement document was signed, she had an obligation to repay Mr Xu the amount of his contribution to the purchase of the Panania Property.

The purchase of the Lansvale Property

1. [705]

   On 18 April 2019, Holdings was incorporated, for the purpose of purchasing and developing a property at 9 Knight Street, Lansvale, New South Wales (the Lansvale Property). Mr Zhang and Mr Xu are, and at all times have been, the directors and equal shareholders of Holdings.

2. [706]

   Holdings is the trustee of a unit trust called the Firmtech Holdings Trust (the Holdings Trust). The units in the Holdings Trust are owned, as to 50% each, by:

   1. (1)

      JKZ (Australia) Pty Ltd as trustee for the JKZ Investment Trust; and

   2. (2)

      KG & Co Holdings Pty Ltd as trustee for the KG&CO Holdings Trust.

3. [707]

   On 3 May 2019, Holdings as trustee of the Holdings Trust entered into a contract to purchase the Lansvale Property for $3.77m. The completion date was 15 August 2019. The deposit of $377,000 was paid by Firmtech.

4. [708]

   After adjustments (including an allowance of $377,000 for GST), the total sum required for settlement of Holdings’ purchase of the Lansvale Property was $3,971,998.44.

5. [709]

   An amount of $2,621,563.20 was advanced by NAB. The remaining funds of $1,350,435.24 came from a number of sources.

6. [710]

   First, a further amount of $492,860.00 was paid from Firmtech’s bank account.

7. [711]

   Secondly, an amount totalling $317,862.24 was paid into Auschn’s trust account by way of two deposits made by Mr Xu’s wife, Ms Gao ($291,862.24), and Mr Xu’s mother-in-law, Ms Chen ($26,000.00).

8. [712]

   Thirdly, there was a payment of $539,713.00 from Holdings’ bank account with NAB. These funds came from two sources:

   1. (1)

      an amount of $400,000 which was deposited into Holdings’ bank account by Mr Xu’s brother, Jinting (Steven) Xu, by way of two deposits made on 2 and 6 August 2019; and

   2. (2)

      an amount of $139,713 which was sourced from two deposits totalling $150,000 with the description “Trinh Nhan” that were made on 2 and 5 August 2019.

9. [713]

   There was a dispute regarding whether the payments from Mr Xu’s brother represented a loan by him to Holdings, or whether they represented a pre-payment by him for services which were being rendered by Firmtech (with Firmtech then loaning those moneys to Holdings).

10. [714]

    Prior to these payments being made, Firmtech had agreed to construct, at cost, a house for Mr Xu’s brother on a property in Carlingford, New South Wales. Work started on this project around the time that the payments were made.

11. [715]

    Mr Xu gave evidence that his brother loaned $400,000 to Holdings, in response to a request made by Mr Xu. It was put to Mr Xu in cross-examination that the payments were, in fact, a prepayment for the construction work being undertaken by Firmtech. However, Mr Xu responded that “it’s illegal for us to charge it – to prepay more than 10% of a contract, which is not allowed in any form of construction”. In giving this answer, Mr Xu appears to have been referring to the effect of s 8 of the Home Building Act 1989 (NSW). This section stipulates that the maximum amount of a deposit for residential building work is 10% of the contract price, and provides that it is an offence for a person to demand or receive the payment of a deposit in excess of that maximum.

12. [716]

    Mr Xu was responsible for the construction side of Firmtech’s business. It is likely that he was aware, at the time that he requested payment from his brother, of the effect of this provision. Given that is so, I accept Mr Xu’s account that the substance of the transaction was not a prepayment for Firmtech’s future costs, but instead an advance by his brother for the purpose of Holdings’ purchase of the Lansvale Property. In any case, there is no pleaded issue regarding the payments made by Mr Xu’s brother.

13. [717]

    As regards the payments with the reference “Trinh Nhan”, Mr Xu gave evidence that these transactions were “informal currency exchanges organised by me with an associate of mine for Chinese Renminbi”. Although this account was challenged in cross-examination, Mr Zhang and Ms Xie did not identify any other explanation for the “Trinh Nhan” funds. Given that Holdings did not trade, and given that the only persons with an interest either in Holdings or in the purchase of the Lansvale Property, were Mr Xu, Ms Gao, Mr Zhang and Ms Xie, it is highly unlikely that the funds came from a third party who had no connection with any of them. Having regard to those matters, I accept Mr Xu’s account. In any case, no claim is said to arise from these payments.

14. [718]

    In summary, leaving aside the NAB loan funds, the purchase of the Lansvale Property was funded by:

    1. (1)

       $869,860.00 from Firmtech’s account (the deposit of $377,000 plus the further amount of $492,860);

    2. (2)

       $400,000.00 from Mr Steven Xu (which was advanced to Holdings); and

    3. (3)

       $457,575.24 from Mr Xu and his family (being the Trinh Nhan payments and the payments by his wife and mother-in-law).

The Luna Loan and the use of the funds advanced

1. [719]

   On 5 August 2019, Mr Zhang, Ms Xie and Mr Xu signed a loan agreement to borrow $1m from a friend of Mr Xu, Liping “Luna” Gu (the Luna Loan Agreement). Mr Zhang and Mr Xu also executed this agreement as directors of Holdings. On 30 August 2019, the Luna Loan Agreement was executed by Ms Gu.

2. [720]

   By the Luna Loan Agreement, Ms Gu (described as “Party A”) agreed to lend to Holdings, Mr Zhang, Mr Xu and Ms Xie (who were together described as “Party B”) the sum of $1m “for the purposes of purchase and develop of” the Lansvale Property. The Luna Loan Agreement provided that Ms Gu would advance the funds “to Party B” within two days of the date of the agreement; that the period of the loan was twelve months from the date of the loan deposit; that interest was payable by “Party B” at a rate of 10% per annum; and that “Party B” would give Ms Gu a second mortgage and a right to lodge a caveat over five specified properties, including the Lansvale Property, which was being purchased by Holdings, and the Panania Property, which was owned by Ms Xie.

3. [721]

   The Luna Loan Agreement provided that it would come into effect “when the two parties [that is, Party A and Party B] signed the agreement”. This requirement was satisfied when Ms Gu signed on 30 August 2019.

4. [722]

   The Luna Loan Agreement further provided that: “Both parties are legally binding, jointly and severally”. This evinces an intention, which is supported by the use of “Party B” and the other terms of the agreement, that Mr Xu, Mr Zhang, Ms Xie and Holdings were jointly and severally liable for the repayment of the moneys advanced by Ms Gu, for the payment of interest to Ms Gu, and for any other obligations imposed on “Party B” under the Luna Loan Agreement.

5. [723]

   There was a factual dispute as to the circumstances in which the Luna Loan Agreement came to be signed. It is unnecessary to resolve this dispute. In closing submissions, Ms Xie, Mr Zhang and Holdings accepted that the Luna Loan Agreement was entered, and that it was binding on each of them. Counsel for those parties stated in closing address that: “We’ve got some issues about the way in which the funds are dispersed and that really is where our concern lies, but there’s no dispute that we signed the loan.”

6. [724]

   On about 30 August 2019, Ms Gu lodged a caveat on the title of four of the properties specified in the Luna Loan Agreement, including the Panania Property. The caveat lodged over the Panania Property claimed a “lien” by virtue of a “personal agreement” between Ms Xie and Ms Gu (being the Luna Loan Agreement).

7. [725]

   On 5 September 2019, Ms Gu advanced an amount of $872,189, by paying this sum into Auschn’s trust account. Mr Xu explained that the balance of the $1m advance under the Luna Loan Agreement (being $127,811) was not paid because it was treated as the repayment of moneys then owing by Mr Xu to Ms Gu.

8. [726]

   There was no dispute that this set-off occurred. Instead, the cross-examination of Mr Xu proceeded on the basis that he did not inform Mr Zhang and Ms Xie that the $1m was advanced, in part, by way of this set-off. Mr Xu agreed that he could not recall doing so. There was, however, no pleaded claim arising from the loan funds having been advanced in that manner.

9. [727]

   Similarly, although there was a factual dispute as to how the funds advanced by Ms Gu were disbursed, there was no pleaded claim regarding the disbursement of those funds, and therefore this issue can be addressed briefly.

10. [728]

    Of the $872,189 which was paid into the Auschn trust account, an amount of $372,189 was paid several days later to Mr Xu’s wife, Ms Gao. As noted above, Ms Gao and her mother had advanced $457,575.24 to Holdings for the purchase of the Lansvale Property. The payment of $372,189 to Ms Gao from the funds advanced by Ms Gu effected, in substance, a refinancing of the Lansvale Property: the indebtedness of Holdings to Ms Gao was discharged to the extent of the payment, and replaced with the indebtedness of Holdings, Mr Xu, Mr Zhang and Ms Xie (“Party B”) to Ms Gu.

11. [729]

    The remaining $500,000 of the moneys advanced by Ms Gu was paid to Ironbrook Properties on 19 September 2019. There was a factual dispute as to whether Mr Zhang and Ms Xie agreed to entering into any arrangement with Ironbrook. It is not necessary to resolve this dispute, given the absence of any pleaded issue about the Ironbrook payment. It is sufficient to note the following matters.

    1. (1)

       On 13 September 2019, Mr Xu sent Mr Zhang a term sheet which Ironbrook had signed on 11 September 2019. The term sheet set out terms for the acquisition by “Kevin Xu (& Partners)” of a 49% interest in Ironbrook Property Group Holdings, including a requirement for an initial payment of $500,000. Given that it was sent to Mr Zhang, it can be inferred that the reference to the “Partners” of Mr Xu was, at least, a reference to Mr Zhang.

    2. (2)

       In a WeChat message posted on the Group Chat on the same day, Mr Zhang sent back a copy of the term sheet with his handwritten comments and said: “Needs to add clause to bind all parties”. This message establishes that Mr Zhang was contemplating, at that time, that the parties would enter into a binding agreement on the terms of the term sheet and “Kevin Xu (& Partners)” would pay the stipulate sum of $500,000 to Ironbrook.

    3. (3)

       On 23 September 2019, Ms Xie sent a text message to Mr Xu regarding the Ironbrook term sheet, which included the following statements: “Write Jiamin’s name on the previously drafted document. Let’s re-sign it and send it to them. Then you have to wait until you receive the shareholder agreement document before paying.” The reference to “paying” is plainly a reference to the payment of $500,000 to Ironbrook in accordance with the terms of that document. In closing submissions, Ms Xie and Mr Zhang noted that in this exchange, Ms Xie was outlining steps which she expected to be taken before the Ironbrook payment was made, and that the Ironbrook payment had in fact occurred on 19 September 2019, several days prior to Ms Xie’s message being sent. On this basis, they submitted that Ms Xie’s message could not amount to authority for Mr Xu to make the Ironbrook payment. While that may be accepted, there is, as noted above, no claim that the Ironbrook payment was unauthorised. For present purposes, the significance of the messages is that they indicate that Ms Xie was aware of the terms of the Ironbrook arrangement, and intended that the arrangement should be entered and that the amount of $500,000 should be paid to Ironbrook pursuant to that arrangement.

    4. (4)

       In September and October 2020, WeChat messages were exchanged on the Group Chat which indicate that Ms Xie and Mr Zhang understood that the principal of $1m had been advanced under the Luna Loan Agreement, that this amount was repayable to Ms Gu, and that half of this amount had been paid to Ironbrook. In particular:

12. [730]

    On 17 August 2020, Mr Xu withdrew $200,000 from Firmtech’s account. There is no pleaded issue in relation to this transaction, although it was the subject of cross-examination When questioned about this payment, Mr Xu explained that $100,000 of this amount was paid to Ms Gu by way of interest. As noted above, pursuant to the Luna Loan Agreement, “Party B” was liable to pay interest at a rate of 10% per annum on the advance made at the start of September 2019. Ms Gu’s bank statements confirm that the amount of $100,000 was received by her shortly afterwards.

13. [731]

    The fact that Mr Xu made this payment to Ms Gu, in discharge of Party B’s obligation to pay interest under the terms of the Luna Loan Agreement, was acknowledged in an amended version of the “Closing Down Calculations” which was prepared by Ms Xie on 30 January 2021, after the meeting with Mr Xu earlier that day. The amendments included reducing the amount which was recorded as having been withdrawn by Mr Xu from Firmtech’s bank account (marked as “Kevin cash refund”) and inserting a new line in the section of the spreadsheet dealing with the Luna Loan, stating “Paid interest $100,000”. These amendments indicate that, at the 30 January meeting, Ms Xie and Mr Zhang accepted that, of the $200,000 which Mr Xu had withdrawn from Firmtech’s account in August 2020, $100,000 had been paid to Ms Gu in respect of their joint and several liability for interest under the Luna Loan Agreement, and the other $100,000 was retained by Mr Xu (and therefore reduced the balance of the sum which he had advanced to Firmtech as at 30 January 2021).

14. [732]

    In closing address, Mr Zhang and Ms Xie made a submission that Ms Gu was in the camp of the Xu parties, that she had not been called to give evidence despite being available, and that “the appropriate inference ought to be drawn that she could not give evidence that would assist the position of Mr Xu and the companies associated with him”.

15. [733]

    In Ling v Pang [2023] NSWCA 112 at [27], Kirk JA said (Leeming and Mitchelmore JJA agreeing) that:

16. [734]

    A Jones v Dunkel inference is not a substitute for evidence. If there is no evidence of a matter, the inference cannot fill the void: Bellevarde Constructions Pty Ltd v L’Officina by Vincenzo Australia Pty Limited [2022] NSWCA 246 at [37] per Brereton JA (White JA and Simpson AJA agreeing).

17. [735]

    Ms Xie, Mr Zhang and Holdings did not advance any pleaded issue in respect of the Luna Loan Agreement, which Ms Gu’s evidence might have addressed. Nor did they identify any inference which was available on the evidence before the Court which could more confidently be drawn as a result of Ms Gu’s failure to give evidence. In those circumstances, there was not a sufficient basis to draw any Jones v Dunkel inference by reason of Ms Gu’s absence.

Payment to Ms Gao – October 2019

1. [736]

   On 26 September 2019, the Australian Tax Office paid an amount of $377,047.71 into Holdings’ bank account, which was a refund of the GST that had been paid on the purchase of the Lansvale Property.

2. [737]

   On 2 October 2019, an amount of $300,035 was withdrawn from Holdings’ bank account. Of that sum, $300,000 was paid into the bank account of Ms Gao on the same day, with the narrative “Refund” (the remainder being referrable to a $35.00 bank fee).

3. [738]

   On 2 and 3 October 2019, a total of $150,000 was paid out of Ms Gao’s account by way of two transfers. It is common ground that this amount was received by Mr Zhang and Ms Xie. The result was that, of the $300,000 paid out of the Holdings’ account following the refund of GST, one half was received by Mr Xu’s wife and the other half was received by Ms Xie and Mr Zhang.

4. [739]

   There was a factual dispute as to the discussions which preceded these payments. Mr Xu gave evidence that he had a conversation with Ms Xie and Mr Zhang between 26 September 2019 and 2 October 2019, in which he informed them that the GST refund had been received. According to Mr Xu, Ms Xie proposed that “we split $300,000 between us”, with half of this amount being paid into an account in Mr Zhang’s name, and Mr Zhang confirmed that he agreed with this proposal. Following this, Mr Xu paid $100,000 into the bank account of Mr Zhang, and was then instructed to pay the remaining $50,000 into a different account held by Ms Xie. He attached to his affidavit a WeChat message from Ms Xie dated 3 October 2019 providing him with the details of this account.

5. [740]

   Ms Xie and Mr Zhang accepted that there was a discussion with Mr Xu about the receipt of $300,000 and an agreement to split this amount, but deposed that Mr Xu told them that the amount of $300,000 represented payments made on a construction project being undertaken by Firmtech, rather than a refund of GST received by Holdings.

6. [741]

   I consider that Mr Xu’s version of events is more probable. The relevant payments happened immediately after the GST refund was received. It is likely that the receipt of this refund would have triggered some discussion between the parties about what to do with those funds, given that Holdings was not trading and had been established solely in order to purchase and hold the Lansvale Property. Further, the fact that the moneys were split equally between, on the one hand, Ms Gao and, on the other, Ms Xie and Mr Zhang is consistent with the fact that Ms Gao and Ms Xie were, respectively, the sole shareholders of the entities which owned 50% of the units in the Holdings Trust. Mr Xu explained in cross-examination that the reason why he made a single transfer of $300,000 from Holdings’ account into his wife’s account, and then immediately transferred $150,000 of that amount to Ms Xie and Mr Zhang, rather than making two transfers of $150,000 each from Holdings’ account, was that he was thereby able to avoid incurring two bank fees of $35.00 each. That evidence is plausible and readily explains why the transactions occurred in this way.

7. [742]

   Further, it is unlikely that, if the $300,000 represented moneys received by Firmtech for one of its projects, Mr Xu, Mr Zhang and Ms Xie would have agreed to take this money out of Firmtech and split it between them. At this time, Firmtech required these funds in order to pay its suppliers. On 30 September 2019, Firmtech only had around $40,000 in its bank account. In addition, Ms Xie stated in a WeChat message on the Group Chat in August 2020 that she had, to date, received “not a single dollar from Firmtech” (see paragraph [174] above). It is unlikely that she would have made this statement if she and Mr Zhang had received $150,000 in cash from Firmtech around 10 months earlier.

8. [743]

   For those reasons, I find that $300,000 of the GST refund was, by agreement between the directors of Holdings, equally split between the two families who had an equal interest in the Holdings Trust (Mr Xu/Ms Gao and Mr Zhang/Ms Xie).

Decision to Sell the Properties

1. [744]

   On 5 January 2021, Ms Xie sent the following WeChat message to Mr Xu on the Group Chat:

2. [745]

   This appears to have been the first indication from Ms Xie that she wanted to sell the Panania Property. Significantly, her message acknowledged that she would need to calculate the amount of Mr Xu’s contribution to the purchase of the property, so that he could be repaid this amount.

3. [746]

   On 29 January 2021, Mr Zhang sent the email to Mr Xu which attached the “Closing Down Calculations”. The attached spreadsheets related not only to Firmtech, but also to the Lansvale Property and the Panania Property. A number of these items were annotated with the words “need kevin to confirm”.

4. [747]

   As shown by these spreadsheets, Mr Zhang and Ms Xie recognised that, if their business relationship with Mr Xu was to come to an end, and their financial affairs were to be separated, it would be necessary to deal with each of their investments (including the two properties). Each of those investments would need to be “closed” out. In particular, it would be necessary to agree on the quantum of, and agree on the steps necessary to repay, each of the following amounts: the amount paid by Mr Xu for Ms Xie’s purchase of the Panania Property; the amounts paid by Firmtech and by Mr Xu and his family for Holdings’ purchase of the Lansvale Property; the amounts advanced by Mr Xu to Firmtech; and the outstanding balance of the Luna Loan for which Mr Xu, Mr Zhang, Ms Xie and Holdings were jointly and severally liable. Mr Zhang stated in cross-examination that, in order for there to be a “separation”, there needed to be:

5. [748]

   It was common ground that the various entries in the “Closing Down Calculations” were discussed at the meeting between Mr Xu, Ms Xie and Mr Zhang on 30 January 2021.

6. [749]

   On the evening following that meeting, Ms Xie sent a further version of the “Closing Down Calculations” to Mr Xu. It can be inferred that the amendments reflected matters which had been discussed at that meeting. In particular, the revised calculations:

   1. (1)

      increased the amount of Mr Xu’s contribution to the Panania Property from $123,311.22 to $164,791.22 (retaining the notation “need kevin to confirm”);

   2. (2)

      increased the amount of Mr Xu’s contribution to the Lansvale Property from $330,985 to $398,985 (with the notation “kevin to confirmed [sic]”); and

   3. (3)

      reduced the amount of the cash refunded to Mr Xu from Firmtech, and noted that $100,000 had been paid by way of interest in respect of the Luna Loan.

7. [750]

   The amended spreadsheets recorded that the total amount of “cash” which Mr Xu had advanced to Firmtech, less the amount of “cash refunds” to him from Firmtech’s account, was around $1.22m.

8. [751]

   In his affidavit of 17 April 2023 which was filed in the Lansvale Proceeding, Mr Zhang gave evidence that, in the course of a meeting with Mr Xu and Ms Xie at the Revesby Factory in “around December 2020 or January 2021” (which is likely a reference to the 30 January meeting, this being the only meeting with Mr Xu which took place at those premises in that period), words to the following effect were said:

9. [752]

   Mr Xu deposed that in early February 2021, he had a conversation with Ms Xie in which she said words to the effect that: “We will have to sell Panania and Lansvale and use the sales to pay back the $1.22 million owed to you and the Luna Loan”. In her evidence in reply, Ms Xie did not dispute that there was a conversation to that effect. I accept Mr Xu’s evidence, as it is consistent with Mr Zhang’s evidence of the matters discussed by the parties at the 30 January meeting. It is also consistent with various WeChat messages which were subsequently exchanged between the parties (as set out below).

10. [753]

    On 22 February 2021, the following WeChat messages were posted by Mr Xu and Ms Xie on the Group Chat:

11. [754]

    There was a competing translation in evidence, but it was to substantially the same effect.

12. [755]

    Mr Xu’s reference to the “1.3 million” which he had “invested … for almost three years” was a reference to the amount of money which he had advanced to Firmtech since its establishment in May 2018. In this exchange, Ms Xie did not dispute the amount which Mr Xu claimed to be owing to him. The figure cited by Mr Xu is broadly consistent with the figure of $1.22m recorded in the revised “Closing Down Calculations” following the 30 January meeting. It is likely that Ms Xie was referring to this meeting and to the revised calculations when she stated that: “We calculated it [the amount Mr Xu had invested] very clearly last time”.

13. [756]

    In the WeChat messages set out above, Ms Xie indicated that she was committed to repaying Mr Xu the total amount of his investment in Firmtech “as soon as possible”, particularly because of the “gratitude” she felt for Mr Xu having “supported” her up to this point in time.

14. [757]

    Ms Xie also indicated in these messages that she planned to obtain the funds to repay the amount which Mr Xu had advanced to Firmtech from selling “these two factories and houses”. Ms Xie confirmed in cross-examination that, in this message, she was referring to the sale of the Lansvale Property and the Panania Property. Similarly, Mr Zhang confirmed that he understood that the reference to “two factories and houses”, which appears in the above translation, was a reference to the “two” properties at issue in these proceedings, namely, the Lansvale Property (which was a factory) and the Panania Property (which was a house). Mr Zhang also agreed that, when he read this message on the Group Chat, he understood that it was the intention that when those two properties were sold, each of Mr Xu and Ms Gu would be repaid. Mr Zhang did not disagree with this proposal.

15. [758]

    Having regard to the evidence set out above, I find that the parties agreed that each of the Lansvale Property and the Panania Property would be sold; that, from the proceeds of sale, Mr Xu would be repaid the amount of around $1.22m which he had advanced to Firmtech; and that Ms Gu would be repaid the moneys which she had advanced under the Luna Loan Agreement.

Sale of Properties and Directions in relation to sale proceeds

1. [759]

   Ms Xie engaged Auschn to act as conveyancer on the sale of the Panania Property. Auschn did not charge a fee for this service.

2. [760]

   On 15 February 2021, Ms Xie sent a WeChat message to Mr Xu on the Group Chat, asking: “Can you help prepare the sales contract for panania?”

3. [761]

   On 22 February 2021, Ms Xie sent a further WeChat message to Mr Xu on the Group Chat, stating: “Tell Luna once we sold Panania we will repay more money immediately”. That is consistent with the longer WeChat exchange of the same day (set out at [753] above) in which Ms Xie had stated her intention to use the proceeds of the sale of the Panania Property to repay amounts owing under the Luna Loan Agreement.

4. [762]

   On the same date, further WeChat messages were exchanged between Ms Xie and Mr Xu on the Group Chat, regarding the need for Ms Gu’s caveat over the Panania Property to be removed before the settlement date:

5. [763]

   These messages disclose that Ms Xie contemplated that Mr Xu would contact Ms Gu to inform her that she would be repaid money from the settlement proceeds of the Panania Property, and would ask her to assist with the sale by removing her caveat in advance of settlement.

6. [764]

   On 23 February 2021, contracts were exchanged for the sale of the Panania Property for an amount of $1,185,000. A deposit of $118,500 was paid.

7. [765]

   Holdings engaged Auschn to act as conveyancer on the sale of the Lansvale Property.

8. [766]

   On 12 March 2021, Ms Xie sent a WeChat message to Mr Xu on the Group Chat, asking “When will the Contract Lansvale be ready?” On 16 March 2021, Ms Xie repeated that request, and Mr Xu responded “by this week”.

9. [767]

   These messages indicate that, from the start of the sale process, Ms Xie was communicating with Mr Xu about the sale of the Lansvale Property. Mr Zhang was aware of these communications, since he was a party to the Group Chat.

10. [768]

    On 31 March 2021, Holdings as trustee of the Holdings Trust entered into a contract for the sale of the Lansvale Property for an amount of $6,050,000. The purchasers paid a deposit of $605,000.

11. [769]

    On around 26 February 2021, Auschn entered into a costs agreement with Ms Gu, to act for her in relation to the removal of the caveat over the Panania Property, which stated as follows:

12. [770]

    On 15 March 2021, Ms Gu gave a direction to Auschn, headed “Repayment of Loan for Liping Gu”. This document referred to the Luna Loan Agreement, and the upcoming sale of the Panania Property and Lansvale Property. It stated as follows:

13. [771]

    The direction contemplated that, in return for Ms Gu removing the caveat over the Panania Property prior to settlement, the $1m principal advanced by Ms Gu pursuant to the Luna Loan Agreement would be repaid, and that this would be effected by two payments made from, respectively, the settlement proceeds of the Panania Property (as to $400,000) and the settlement proceeds of the Lansvale Property (as to $600,000).

14. [772]

    The Zhang/Xie Parties raised, in opening submissions, an issue regarding the authenticity of this document. However, Mr Xu gave unchallenged evidence that he was provided with this direction by Ms Gu, and it was not put to Mr Xu in cross-examination that the document was not authentic. Instead, the cross-examination proceeded on the basis that this direction was given, but that Mr Xu failed to disclose this direction to Ms Xie (which Mr Xu acknowledged was probably the case). In closing address, the Zhang/Xie Parties summarised the position as follows: “Now, there was a direction that was held by Mr Xu on behalf of Ms Gu … And it provided for the payment of $400,000 to the Auschn Global account … Mr Xu accepts that he didn’t tell Ms Xie about the direction”.

15. [773]

    On 18 March 2021, Ms Gu withdrew her caveat over the Panania Property. The withdrawal was signed by Mr Xu and lodged by Auschn.

16. [774]

    The fact that Ms Gu took this step on 18 March 2021 provides further support for the authenticity of the document dated 15 March 2021. It is unlikely that Ms Gu would have removed the caveat over the Panania Property without some agreement having been reached that she would be repaid, from the sale of the Panania Property and the Lansvale Property, the balance of her loan, and without some arrangements being put in place to ensure that this occurred.

17. [775]

    On 8 April 2021, Ms Xie and Mr Xu exchanged the following WeChat messages on the Group Chat in relation to the sale of the Panania Property, and the use of the proceeds:

18. [776]

    A number of points are notable about this exchange.

19. [777]

    First, Mr Xu was informing Ms Xie, before the settlement moneys from the sale of the Panania Property were received, that those moneys would need to be used, immediately upon receipt, to repay Ms Gu. (It should be noted that this exchange records that there had been a payment of $80,000 made to Ms Gu, thereby reducing the outstanding principal to $920,000).

20. [778]

    Secondly, Mr Xu indicated to Ms Xie that they had promised to repay Ms Gu from the settlement proceeds in order to obtain Ms Gu’s consent to remove the caveat over the Panania Property. There was some suggestion in cross-examination that Mr Xu’s message about the caveat was misleading, because he stated that it was necessary to make a payment from the Panania settlement in order for the caveat to be withdrawn, when, in fact, by this date the caveat had already been withdrawn. However, Ms Xie did not give evidence that she was misled by this message, and the WeChat messages of February 2021 which are set out at paragraphs [753] and [761]-[762] above make plain that Ms Xie understood that the caveat had to be removed before the settlement of the Panania Property (and therefore had to be removed before any payment was made to Ms Gu from the sale proceeds, which could only occur after settlement).

21. [779]

    Thirdly, the exchange again confirms that Mr Xu and Ms Xie had agreed that an amount of “around $1.2m” was owing to Mr Xu (being the amount set out in the revised “Closing Down Calculations” which were sent by Ms Xie to Mr Xu after the 30 January meeting).

22. [780]

    Fourthly, and most importantly, Ms Xie acknowledged that she and Mr Xu had already reached an agreement regarding what would be done with the proceeds of the sale of the Panania Property and the Lansvale Property: “The result of our previous discussion was to repay Luna first, then you.” That is, it was agreed that the settlement proceeds from the sale of the two properties would be used first to discharge the full amount due under the Luna Loan Agreement and then to repay Mr Xu the moneys which he had contributed to Firmtech.

23. [781]

    On 20 April 2021, the sale of the Panania Property completed. After paying off the NAB Loan and various other expenses, the net amount of the moneys received on settlement was $304,613.47.

24. [782]

    On the same day, Auschn paid the whole of that amount to Global.

25. [783]

    On 22 April 2021, Auschn received a further sum of $94,800, which was the balance receivable from the deposit paid in respect of the Panania Property. This amount was also paid to Global on the day of receipt.

26. [784]

    It follows that Global received a total amount of $399,413.47.

27. [785]

    Mr Xu and Auschn did not issue a statement of account to Ms Xie upon completion of the sale of the Panania Property.

28. [786]

    On 21 April 2021, Mr Xu and Ms Xie exchanged the following WeChat messages on the Group Chat:

29. [787]

    These messages were sent before the amount of $94,800 referrable to the deposit had been received (explaining why Mr Xu said that “the money from the agent is not in the account yet”). Ms Xie by these messages confirmed her instruction to Mr Xu to use the settlement proceeds of the Panania Property to repay part of the balance of the Luna Loan (“Pay part of it first”), with the remaining balance of that loan being paid from the sale proceeds of the Lansvale Property (“pay the other part after getting the money from lansvale”).

30. [788]

    As identified above, Ms Gu had directed that $400,000 from the sale of the Panania Property was to be paid in reduction of the balance of the Luna Loan, and had directed that this payment should be made by means of a payment to a nominated bank account in the name of Global.

31. [789]

    The payment of $399,413.47 by Auschn to Global was therefore in accordance both with Ms Xie’s instruction to Mr Xu that the money from the settlement of the Panania Property should be used in part repayment of Ms Gu’s loan, and with Ms Gu’s direction to Auschn as to how that repayment should be effected.

32. [790]

    On 21 April 2021, Global transferred an amount of $300,000 to Ms Gu’s bank account.

33. [791]

    At paragraphs [753], [761]-[762], [775] and [786311] above, I have set out various WeChat messages which were exchanged on the Group Chat on 22 February 2021, 8 April 2021 and 21 April 2021. In particular:

    1. (1)

       on 22 February 2021, Ms Xie stated that the Lansvale Property and the Panania Property would be sold, and the proceeds would be applied to repay both the Luna Loan and the amount of Mr Xu’s investment in Firmtech;

    2. (2)

       on 8 April 2021, Ms Xie acknowledged that an agreement had been reached in previous discussions with Mr Xu “to repay Luna first, then you [Mr Xu]” from the proceeds of the sale of the Lansvale Property and the Panania Property; and

    3. (3)

       on 21 April 2021, Ms Xie directed Mr Xu to “Pay part of [the Luna Loan] first [from the Panania settlement proceeds]. And pay the other part [of the Luna Loan] after getting the money from Lansvale.”

34. [792]

    In cross-examination, Mr Zhang confirmed that by these messages (which he received and read on the Group Chat), he understood that the Panania settlement moneys would be used to repay part of the Luna Loan “and that the other part of the Luna loan should be paid or could be paid after getting the money from Lansvale”. Mr Zhang did not disagree with this proposal.

35. [793]

    On 21 April 2021, Ms Xie and Mr Xu exchanged the following further WeChat messages on the Group Chat regarding the amount owing to Mr Xu and his brother, and the sale of the Lansvale Property:

36. [794]

    Again, these messages acknowledged that an amount of $1.2m was to be repaid to Mr Xu. This was the amount specified on the revised “Closing Down Calculations”.

37. [795]

    In these messages, Mr Xu also confirmed that he had received a payment of $100,000 in August 2020. This appears to be a reference to the withdrawal of $200,000 from the Firmtech bank account in August 2020, half of which was used to pay the interest due on the Luna Loan, and half of which was retained by Mr Xu (see paragraphs [730]-[731] above).

38. [796]

    In cross-examination, Ms Xie confirmed that in sending the last of these messages (“Will pay back your money first when collection is made from lansvale”), it was her intention to convey that Mr Xu was to be repaid, from the settlement proceeds of the Lansvale Property, the money that was agreed to be owing to him.

39. [797]

    On 13 May 2021, the sale of the Lansvale Property completed.

40. [798]

    On that day, Mr Xu caused Auschn to make the following payments from the settlement proceeds:

    1. (1)

       $731,500 was paid to Firmtech (the Firmtech Payment);

    2. (2)

       $535,000 was paid to FAWD (the FAWD Payment);

    3. (3)

       $615,500 was paid to Ms Gao (the Gao Payment); and

    4. (4)

       $905,861.20 was paid into Auschn’s trust account for Holdings. Subsequently, after the payment of further expenses, this amount was reduced to $810,722.24 (Holdings Trust Balance).

41. [799]

    Mr Xu and Auschn did not issue a statement of account to Holdings upon completion of the sale of the Lansvale Property.

42. [800]

    Mr Xu gave evidence that in May 2021, prior to settlement, he had a conversation with Ms Xie to the following effect:

43. [801]

    Ms Xie did not put on any evidence specifically denying any such conversation occurred, although she did depose that: “I was not involved with the settlement of the purchase of the Lansvale Property”. That assertion can be given little weight, having regard to the extensive WeChat messages on the Group Chat from Ms Xie dealing with the sale of the Lansvale Property. The terms of the conversation are, so far as concerns the repayments to Ms Gu and Mr Xu, consistent with the WeChat messages which are set out above. It is likely that there was a discussion between Mr Xu and Ms Gu in which, as recorded in the WeChat messages, they agreed that the proceeds of the sale of the Lansvale Property would be used to discharge the balance of the Luna Loan, and to reduce the amount which was agreed to be owing by Firmtech to Mr Xu.

44. [802]

    The Firmtech Payment was made in respect of an invoice dated 12 May 2021 for the amount of $731,500 (including GST) which Firmtech issued to Holdings. This invoice specified the “Job Site” as the Lansvale Property and was stated to be for Firmtech acting as “Project manager for 19 months and marketing service”.

45. [803]

    Mr Xu was cross-examined regarding the basis on which this invoice was issued, whether the services referred to in the invoice had actually been provided, and whether Ms Xie and Mr Zhang were aware of the payment. It is unnecessary to resolve those matters. There is no pleaded issue regarding the Firmtech Payment. It can therefore be put to one side.

46. [804]

    Mr Xu deposed that the payment of $615,500 into Ms Gao’s account comprised two separate amounts: first, a payment of $565,500 in respect of the Luna Loan, and secondly, a payment of $50,000 in respect of interest owing to Mr Xu’s brother.

47. [805]

    As regards the payment in respect of the Luna Loan, I have referred above to evidence that Ms Xie directed Mr Xu in a number of WeChat messages on the Group Chat to pay the balance of the Luna Loan from the sale of the Lansvale Property, and that Mr Zhang was aware that this direction was given and did not disagree with it.

48. [806]

    In turn, Ms Gu had given a direction to Auschn that the amount of some $600,000 which was to be paid to her from the settlement proceeds of the Lansvale Property should be paid into a nominated bank account in the name of Ms Gao. There was, as noted above, no challenge in the cross-examination of Mr Xu to the authenticity of that direction.

49. [807]

    Mr Xu deposed that, shortly prior to the sale of the Lansvale Property, he calculated the balance of the moneys owing to Ms Gu. In doing so, he took into account a payment of $80,000 which had already been made to Ms Gu (reducing the principal to $920,000), and the amount of $390,000 which (in accordance with her direction) had been paid from the Panania settlement proceeds to Global’s bank account, and he applied interest to the date of those payments. He explained that he incorrectly calculated the balance of the Luna Loan, after those repayments, to be $500,000 rather than $530,000, and that he calculated interest on the amount of $500,000 in reaching the figure of $565,463.01 as the amount due to Ms Gu. Mr Xu gave unchallenged evidence that he later personally paid the remaining $30,000 of the balance of the Luna Loan to Ms Gu.

50. [808]

    As regards the payment in respect of interest owing to Mr Xu’s brother, I have referred above to the evidence regarding the loan of $400,000 which he had advanced to Holdings. This amount was advanced in circumstances where the construction project at Carlingford was being undertaken for Mr Xu’s brother by Firmtech, but prior to any such amount being due and payable in respect of that construction. The existence of this loan was acknowledged by Ms Xie in the WeChat messages exchanged on the Group Chat on 21 April 2021, which are set out in paragraph [793] above: “Your brother seems to have borrowed about 400,000 from the construction”

51. [809]

    Ms Xie gave evidence that, at the 30 January 2021 meeting, Mr Xu had said: “We need to pay interest to my brother.” Similarly, Mr Zhang deposed that Mr Xu stated that: “my brother’s loan has 10% interest rate”. In their respective accounts of these discussions, neither Ms Xie nor Mr Zhang disputed that a loan was made by Mr Xu’s brother, or that interest was payable to him, either at all or at the rate specified.

52. [810]

    Mr Xu gave evidence, which was not challenged in cross-examination, that he had a conversation with Ms Xie to the following effect in February 2021, in which they agreed that interest in the amount of $50,000 would be paid to Mr Xu’s brother when moneys were received from the sale of the Panania and Lansvale Properties:

53. [811]

    In opening address, counsel for the Zhang/Xie Parties acknowledged that:

54. [812]

    I have already addressed above the issue as to whether Mr Xu’s brother made a loan to Holdings. I deal below with the issue of Ms Xie’s authority to give instructions on behalf of Mr Zhang.

55. [813]

    An amount of $535,000 was paid to FAWD from the settlement proceeds of the Lansvale Property. Holdings did not have any liability to FAWD at the time this payment was made.

56. [814]

    Mr Xu gave evidence that the substance of the transaction was that Holdings repaid $535,000 of the amount which it owed to Firmtech (in respect of the moneys which Firmtech had contributed to the purchase of the Lansvale Property), and Firmtech repaid $535,000 of the amount which it owed to Mr Xu (in respect of the moneys which he had contributed to Firmtech), and that the means by which this was achieved was by a payment from the Lansvale settlement proceeds directly to FAWD, which was wholly owned by Mr Xu.

57. [815]

    As set out in paragraphs [707], [710] and [718(1)] above, Firmtech had provided a total amount of $869,860 to Holdings, in order to fund the purchase of the Lansvale Property, comprising the deposit of $377,000 and a further amount of $492,860 at the time of settlement.

58. [816]

    Mr Zhang and Holdings did not dispute that those moneys were owing by Holdings to Firmtech. Instead, they submitted that any moneys owing by Holdings to Firmtech “should have been paid to Firmtech, not to FAWD”, adding: “It was then a matter for the directors of Firmtech [namely, Mr Zhang and Mr Xu] to decide whether those monies should then be paid to or at Mr Xu’s direction”.

59. [817]

    However, as outlined above, there were numerous WeChat messages exchanged on the Group Chat to the effect that the funds from the settlement of the Panania Property and the Lansvale Property would, after repaying the Luna Loan, be used to repay the amount which Mr Xu had invested in Firmtech (which was agreed to be around $1.22m): see paragraphs [753], [775], and [793] above.

60. [818]

    On 24 May 2021, there was the following further exchange of WeChat messages on the Group Chat:

61. [819]

    In this exchange, Ms Xie appears to have been expressing some doubt about how much was owed by Firmtech to Mr Xu (“Don’t remember”). However, as set out above, there had been agreement since 30 January 2021 regarding the amount which was owing to Mr Xu in respect of his investment in Firmtech. The amount recorded as being owed to Mr Xu in the revised “Closing Down Calculations” which were prepared by Ms Xie on that date is the same as the amount which Mr Xu claimed twice, in this exchange, to be owing to him (namely, $1.22m).

62. [820]

    Ms Xie’s query whether Mr Xu had been repaid in full depended both on an incorrect assumption as to how much was to be repaid to Mr Xu (“we only owed you over $600,000”), and an incorrect assumption that the Gao Payment represented a repayment to Mr Xu (“You transferred 615,000 from the account last week”). In fact, the Gao Payment was, for the main part, a payment made in accordance with a direction of Ms Gu so as to repay the balance of the Luna Loan.

63. [821]

    Finally, Ms Xie’s statement that she and Mr Zhang had “ended up with nothing” from their investment in Firmtech over the past three years must be read in the context where, as at the date of these messages, Aluminum had around $1.3m in its bank account as a result of projects being diverted from Firmtech to Aluminum and being performed using Firmtech’s premises, employees and equipment.

64. [822]

    As noted above, following settlement of the sale of the Lansvale Property, the Holdings Trust Balance of $879,155.26 was held by Auschn in its trust account for Holdings.

65. [823]

    On 23 March 2022, there was a telephone conference call involving Mr Xu, Ms Xie and two representatives of Alcentre Group Pty Ltd, regarding a debt of $156,731.27 which Firmtech owed to Alcentre. Minutes of this meeting, which were prepared by Alcentre and were sent by email to Mr Xu, Ms Xie and Mr Zhang on the following day, recorded the following “Conclusions”:

66. [824]

    As at 31 March 2022, Firmtech had around $54 in its bank account and Holdings had around $3,676 in its bank account. However, as outlined above, the amount which Firmtech had advanced to Holdings for the purchase of the Lansvale Property had not been repaid in full (of $869,860, an amount of $535,000 had been repaid via the FAWD Payment), and a substantial amount continued to be held on trust for Holdings by Auschn. The only means that Firmtech had, as at this date, to pay the amount due to Alcentre was to request repayment from Holdings (out of the funds held by Auschn on trust for Holdings) of the funds which Holdings owed to Firmtech.

67. [825]

    On 28 July 2022, Alcentre served a statutory demand on Firmtech, claiming the principal amount of $156,731.27 together with interest in an amount of $79,800.60.

68. [826]

    On 15 August 2022, Alcentre agreed with Mr Xu to settle its claim for an amount of $188,000.

69. [827]

    On 26 August 2022 at around 10.00am, Mr Xu attended the Revesby Factory and purported to hold, without notice, a meeting of the directors of Firmtech, which Mr Zhang did not attend. Mr Xu left behind at the factory a document headed “Urgent Company Meeting Minutes”, recording various resolutions alongside which Mr Xu wrote the word “Agreed”.

70. [828]

    Later that day, Mr Zhang’s solicitors sent a letter to Mr Xu’s solicitors, stating that no notice had been given to Mr Zhang about the meeting or the proposed resolutions; that Mr Zhang had not been present at the Revesby Factory when the meeting was said to have taken place; that there had been no quorum; and that no resolutions had been passed or could have been passed. Mr Zhang’s solicitors sought that Mr Xu provide an undertaking that he would not take any steps to implement the purported resolutions.

71. [829]

    At 2.06pm on the same day, Mr Xu sent an email to Mr Zhang, requesting “an urgent company meeting [of Firmtech] in one hour”, and attaching draft resolutions. Mr Xu stated: “There is urgent need to address Alcentre Group Statutory Demand will be dued [sic] on 28th Aug 2022”.

72. [830]

    Mr Zhang responded at 2.23pm, stating that he had not been given proper notice of the meeting, that he was not able to attend, and that Mr Xu could not pass any resolutions of Firmtech. Mr Xu replied at 2.40pm, stating as follows:

73. [831]

    As noted at paragraph [51(8)] above, it was common ground between the parties that it was an express term of the pre-incorporation agreement between Mr Xu, Mr Zhang and Ms Xie that if a dispute arose about the manufacturing, production or the technical side of the business, Mr Xu would defer to Mr Zhang and that if a dispute arose about finances, Mr Zhang would defer to Mr Xu.

74. [832]

    Mr Zhang did not attend the meeting and Mr Xu purported to pass the draft resolutions which had been attached to his email in Mr Zhang’s absence. Those resolutions included, relevantly, resolutions that Firmtech would demand that Holdings “fully refund the seed fund of $810,722.24 paid in 2019 for purchasing lansvale factory”; that Mr Xu was authorised to request Auschn to refund the moneys held by Holdings on behalf of Firmtech; and that Mr Xu should, from those moneys, immediately “pay $188,000 to Alcentre Group Pty Ltd’s statutory demand”.

75. [833]

    Following this, Mr Xu caused the whole of the Holdings Trust Balance to be paid into his personal account. He used those funds to pay $188,000 to Alcentre and an amount of $9,604.03 to Commercial Property Group, which was the landlord of the Revesby Factory.

76. [834]

    On 31 August 2022, Mr Zhang commenced the Lansvale Proceeding and obtained orders restraining Mr Xu from dealing with the balance of the moneys held by him. Mr Xu subsequently returned the remaining balance of those moneys (being $613,118.21) to Auschn’s trust account. That amount remains held on trust for Holdings.

Claims in Panania Proceeding

1. [835]

   Ms Xie submitted, and the Xu Parties did not dispute, that, pursuant to the terms of its retainer, Auschn was obliged, inter alia, to act in accordance with Ms Xie’s instructions; to ensure that oral instructions were confirmed in writing; to pay or deal with the settlement proceeds of the Panania Property only in accordance with Ms Xie’s instructions; and to provide a statement of account to Ms Xie in respect of the receipt and payment of the settlement proceeds.

2. [836]

   In addition, it was common ground that, as Ms Xie’s conveyancer, Auschn owed her fiduciary duties not to obtain any authorised benefit from its position and to avoid a position where its duties to Ms Xie were in conflict with its duties to another person or with Auschn’s personal interests.

3. [837]

   In the Panania Proceeding, Ms Xie’s claims against Auschn, Mr Xu and Global were pleaded in a variety of ways, but essentially depended on the following factual premises:

   1. (1)

      that Auschn made payments from the settlement proceeds for the Panania Property to a related entity, Global;

   2. (2)

      that Ms Xie did not have any liability to Global, and Global was not entitled to receive any payment from the settlement proceeds;

   3. (3)

      that there was no authority or instruction from Ms Xie to make any payment from the settlement proceeds to Global; and

   4. (4)

      that therefore there was no proper basis for Auschn and Mr Xu to pay Global the amount of $399,413.47.

4. [838]

   Based on those matters, Ms Xie claimed that, by making the payments to Global, Auschn had breached its retainer with Ms Xie and its fiduciary obligations to Ms Xie; that Mr Xu had knowingly assisted in Auschn’s breach of its fiduciary obligations in furtherance of a dishonest and fraudulent design and that Global had knowingly received the payments made as a result of that breach (such that each was liable under, respectively, the second and first limbs of Barnes v Addy); and that Global was liable for moneys had and received.

5. [839]

   In light of the findings I have made, the factual premises for these claims have not been established.

6. [840]

   First, by oral instructions, which were confirmed in WeChat messages posted on the Group Chat, Ms Xie expressly authorised and instructed Mr Xu (and therefore Auschn) to use the settlement proceeds from the Panania Property to make a repayment in respect of the Luna Loan. Ms Xie also instructed Mr Xu to seek Ms Gu’s agreement to remove the caveat over the Panania Property, so as to allow settlement of the sale of that property to occur, in return for the settlement proceeds being used to make a repayment in respect of the Luna Loan (see paragraphs [752]-[764] and [775]-[786] above).

7. [841]

   Secondly, Mr Xu obtained a written direction from Ms Gu that the repayment of $400,000 from the settlement proceeds of the Panania Property should be effected by paying the funds into a nominated bank account in the name of Global (see paragraphs [770]-[771] above).

8. [842]

   Thirdly, after giving that direction, Ms Gu withdrew the caveat over the Panania Property prior to settlement, so as to allow settlement to occur (see paragraphs [773]-[774] above).

9. [843]

   Fourthly, upon settlement, Mr Xu effected two payments totalling $399,413.47 to the bank account of Global which had been nominated by Ms Gu (see paragraphs [781]-[784] above).

10. [844]

    In short, Ms Xie directed Mr Xu that the settlement proceeds of the Panania Property be used to discharge, in part, the debt to Ms Gu for which she was jointly and severally liable, and which was secured over that property. Mr Xu complied with this direction by making payment from those settlement proceeds to Ms Gu’s nominee. The payment to Global had the effect of reducing Ms Xie’s debt to Ms Gu by the full amount of that payment, that is, by the sum of $399,413.47.

11. [845]

    In closing submissions, Ms Xie contended that Auschn and Mr Xu failed to disclose various matters to her. In particular, she submitted that Auschn and Mr Xu did not disclose how the funds advanced by Ms Gu under the Luna Loan had been disbursed; did not disclose that Auschn had been retained to act for Ms Gu in relation to the removal of the caveat over the Panania Property; and did not disclose that Ms Gu had directed that the moneys from the settlement proceeds for the Panania Property which were to be paid in partial repayment of the Luna Loan be paid into a nominated bank account held by Global.

12. [846]

    There was no pleaded issue in the Panania Proceeding regarding the manner in which the funds advanced by Ms Gu were disbursed. Similarly, there was no pleaded issue regarding Auschn’s retainer by Ms Gu in respect of the Panania Property, or regarding the direction given by Ms Gu concerning the repayment of the Luna Loan from the settlement proceeds.

13. [847]

    Ms Xie’s pleading regarding non-disclosure is to the effect that Auschn “sought a benefit for Mr Xu and/or Global” and that each of Auschn and Mr Xu, in breach of their duties, “failed to fully disclose to Ms Xie the potential conflict that arose between her position and the position of Mr Xu and/or Global”.

14. [848]

    The payment made to Global was a payment made to Ms Gu’s nominee, in accordance with a direction given by Ms Gu, in order to reduce a debt to Ms Gu for which Ms Xie, Mr Xu, Mr Zhang and Holdings were jointly and severally liable. Further, that payment was made in circumstances where Ms Xie had instructed Mr Xu, as confirmed in a number of WeChat messages on the Group Chat, that the settlement proceeds from the sale of the Panania Property should be paid in reduction of their debt to Ms Gu. Such payment was necessary in order that the caveat be removed by Ms Gu and the sale could proceed, as Ms Xie had requested. Those steps were taken in order that the investment in the Panania Property could be realised and Ms Gu could be repaid from the proceeds of the property sale, as had been agreed by Mr Xu and Ms Xie at the 30 January meeting. This was an essential step in order for the parties to achieve the agreed outcome of “closing down” their various investments together. The interests of Mr Xu were not in conflict with the interests of Ms Xie so far as those matters were concerned.

15. [849]

    There was evidence that Global transferred the sum of $300,000 to Ms Gu immediately upon receipt. There were no submissions made by Ms Xie about the difference between this sum and the amount received by Global, and no cross-examination of Mr Xu in relation to this difference.

16. [850]

    Even if a breach of fiduciary duty had been established in relation to the payments to Global, it would be inequitable for any orders to be made requiring Global, Auschn or Mr Xu to pay any or all of the amounts received by Global to Ms Xie. That is because, by those payments being made to Ms Gu’s nominee, in accordance with Ms Gu’s direction, the Luna Loan (for which Ms Xie was liable) was discharged to the full extent of the amount of those payments.

17. [851]

    It would be inequitable for Ms Xie both to receive the full benefit of the payments made to Global, which discharged Ms Xie’s liability to Ms Gu by a commensurate amount (consistently with Ms Xie’s direction to Auschn/Mr Xu that the proceeds of the Panania settlement should be used for this purpose), and at the same time to claim back all or part of the payment from Global, Auschn and Mr Xu.

18. [852]

    Similarly, the claim against Global for money had and received fails. It does not matter that Ms Xie did not have any liability to Global. She had a liability to Ms Gu, and Ms Gu directed that any payment made from the Panania settlement proceeds in reduction of that liability be made to Global’s account. It follows that Ms Xie received consideration for the making of the payments to Global, namely, a reduction in her liability to Ms Gu in an amount equal to the amount of those payments.

19. [853]

    Finally, while Auschn did not provide any settlement statement to Ms Xie, and ought to have done so, the only damage identified by Ms Xie was the damage flowing from the payments to Global allegedly being made without her authority (which has been addressed above). Ms Xie did not identify any separate damage flowing from Auschn’s failure to provide her with a settlement statement.

20. [854]

    Mr Xu’s cross-claim can be addressed briefly.

21. [855]

    By this claim, Mr Xu sought the repayment of the amount which he had provided to Ms Xie to fund the purchase of the Panania Property. Mr Xu claimed this amount pursuant to the terms of the Joint Venture Agreement. I do not need to determine the issue whether or not the Joint Venture Agreement was binding on Ms Xie. That is because, irrespective of whether it was binding, Ms Xie accepted in opening submissions that: “Mr Xu has an entitlement to be repaid the monies paid to him to allow completion of the Panania Purchase Settlement”.

22. [856]

    There was a dispute regarding the precise amount that Mr Xu paid towards the purchase of the Panania Property. Ms Xie deposed that Mr Xu had paid the amount of $163,256.22, and Mr Xu deposed that he had paid the amount of $163,353.02. It is unnecessary to resolve this dispute, as Mr Xu’s closing written submissions on the cross-claim proceeded on the basis of the figure which Ms Xie acknowledged having received and having been obliged to pay.

23. [857]

    For the reasons set out above, in the Panania Proceeding, Ms Xie’s claims against Mr Xu will be dismissed, and Mr Xu is entitled to judgment in respect of his cross-claim in the sum of $163,256.22.

Claims in Lansvale Proceeding

1. [858]

   The observations made at paragraphs [835]-[836] above regarding the contractual and fiduciary obligations of Auschn apply, mutatis mutandis, to its engagement by Holdings to act as conveyancer in respect of the sale of the Lansvale Property.

2. [859]

   The claims made by Holdings and Mr Zhang in the Lansvale Proceeding fell into three main groups:

   1. (1)

      first, claims made in relation to the payment in October 2019 of $300,000 to Mr Xu’s wife, Ms Gao, following the receipt of a refund of stamp duty in the amount of $377,047.71;

   2. (2)

      secondly, claims made in relation to payments made in May 2021 from the settlement proceeds of the Lansvale Property to Ms Gao and FAWD; and

   3. (3)

      thirdly, claims made in relation to payments made to creditors of Firmtech in August 2022 from the Holdings Trust Balance.

3. [860]

   In the Lansvale Proceeding, Mr Zhang and Holdings pleaded that the $300,000 payment to Ms Gao by Holdings was not authorised by the directors of Holdings (being Mr Zhang and Mr Xu); was made without Mr Zhang’s knowledge; and was made in circumstances where Ms Gao had no entitlement to receive any payment from Holdings. Mr Zhang and Holdings claimed that, by causing Holdings to make this payment, Mr Xu breached his duties as a director of Holdings and caused Holdings to suffer loss and damage. In addition, a claim for money had and received was advanced against Ms Gao in respect of the $300,000 payment.

4. [861]

   For reasons given above, I am satisfied that the payment to Ms Gao was authorised. Mr Zhang and Mr Xu agreed to split $300,000 of the GST refund equally between their respective families (who each held, through corporate vehicles, 50% of the units in the Holdings Trust). This was achieved by transferring the full amount into Ms Gao’s account, and then transferring a total of $150,000 into the accounts of Mr Zhang and Ms Xie (see paragraphs [736]-[743] above).

5. [862]

   There is a further difficulty with this claim. Mr Zhang and Holdings sought equitable compensation. In order to obtain such relief, it was necessary for Mr Zhang to do equity, by offering to account to Holdings for the sum that he and his wife received. However, he did not, in evidence or submissions, offer to do so.

6. [863]

   Mr Zhang and Holdings pleaded that no instructions had been given to pay the amount of $615,500 to Ms Gao from the settlement proceeds of the Lansvale Property; that Holdings was not liable to Ms Gao or otherwise obliged to make a payment to her; that Holdings did not receive any benefit or other consideration from Ms Gao, which would justify the payment to her; that Ms Gao had no entitlement to the payment; that Ms Gao received the payment, without paying any consideration or compensation, or proper consideration or compensation, to Holdings; and that there was a conflict between Mr Xu’s interests and those of Holdings, because the payment was made at Mr Xu’s direction to his wife.

7. [864]

   These factual premises for the claims relating to the Gao Payment have not been established.

8. [865]

   Some $565,500 of the amount paid into Ms Gao’s account represented a repayment of the balance of the Luna Loan, and the remaining $50,000 represented a payment of interest to Mr Xu’s brother in respect of the moneys which he had advanced to Holdings. Mr Xu had authority to make each of those payments.

9. [866]

   As regards the payment in respect of the Luna Loan, the directors of Holdings, Mr Xu and Mr Zhang, had agreed that the settlement proceeds of the Lansvale Property would be used to pay the amount owing to Ms Gu.

10. [867]

    Mr Zhang gave evidence that he proposed to Mr Xu, at the 30 January meeting, that the Lansvale Property be sold to repay the Luna Loan and that Mr Xu agreed with this proposal. This agreement was confirmed in various WeChat messages which were posted on the Group Chat (see paragraphs [753], [775] and [786] above).

11. [868]

    A number of the relevant WeChat messages were posted by Ms Xie. Mr Zhang and Holdings submitted that any instruction given by Ms Xie to Mr Xu regarding the settlement proceeds of the Lansvale Property could not be an instruction from Holdings, because she was not a director of Holdings.

12. [869]

    The submission does not take account of the fact that, as outlined above, Mr Zhang’s own evidence is that he was the person who proposed the sale of the Lansvale Property in order that the proceeds of sale could be used to repay Ms Gu.

13. [870]

    In any case, I am satisfied that Ms Xie had actual or ostensible authority to give directions on behalf of Mr Zhang in relation to the sale of the Lansvale Property.

14. [871]

    Just as agreement can occur by express words or by implication from conduct, actual authority can be conferred by express words or by implication from the conduct of the principal: Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295 at [144]. In that case, Edelman J referred to the following passage from the decision of Clarke and Cripps JJA in Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50 at 132:

15. [872]

    Ms Xie was the primary person dealing with Mr Xu in respect of the sale of the Lansvale Property. Mr Zhang knew that this was the case, as he was a member of the Group Chat on which Ms Xie posted a number of WeChat messages giving directions to Mr Xu regarding the sale of the Lansvale Property and the application of the moneys received upon settlement (see paragraphs [753], [775] and [786] above). He did not raise any issue about the fact that Ms Xie was giving these directions, or about the content of any such direction.

16. [873]

    In addition, there is evidence that Ms Xie was using Mr Zhang’s email address to communicate with the agent who was dealing with the sale of the Lansvale Property. On 4 March 2021, an email was sent from Mr Zhang’s email to the agent at LJ Hooker, which was signed by “Yan” (Ms Xie), asking for advice on whether it was a good time to put it on the market, and stating: “If yes I would like to sold in quick” (emphasis added). Ms Xie gave her mobile number at the bottom of this email. The agent replied to Mr Zhang’s email address, immediately after a telephone discussion with Ms Xie, stating: “Hi Yan, Thanks for call just now.” He asked Ms Xie to send back the agency agreement “with the proposed changes from your solicitor” (emphasis added). In a further email to Mr Zhang’s email address, which was addressed to Ms Xie, the agent provided an updated agency agreement and stated: “If you are happy to proceed, please sign both the agency agreement and marketing quote attached and send back to me” (emphasis added).

17. [874]

    In light of the evidence referred to above, it can be inferred that Ms Xie had actual authority from Mr Zhang to give instructions regarding the sale of the Lansvale Property.

18. [875]

    Even if Ms Xie did not have actual authority to give instructions on behalf of Mr Zhang in relation to the Lansvale Property, she had ostensible authority to do so.

19. [876]

    In Oliveri Legal Pty Ltd t/as Oliveri Lawyers v Cassegrain Tea Tree Oil Pty Ltd [2024] NSWCA 74 at [46], Mitchelmore JA (with whom Gleeson JA and Basten AJA agreed) observed that:

20. [877]

    Her Honour referred with approval (at [63]) to the decision of Newnes JA in Auxil Pty Ltd v Terranova (2009) 260 ALR 164; [2009] WASCA 163 at [176], where his Honour observed as follows:

21. [878]

    Having regard to that the posting of messages by Ms Xie on the Group Chat (to which Mr Zhang was a party) providing instructions to Mr Xu regarding the sale of the Lansvale Property, and the absence of any response by Mr Zhang expressing any concern either about the fact that Ms Xie was giving such instructions or about the content of any of those instructions, I find that Mr Zhang permitted Ms Xie to act in the management or conduct of Holdings’ business (and, in particular, Holdings’ sale of the Lansvale Property) and thereby represented to Mr Xu that Ms Xie had authority to do those acts on behalf of Holdings.

22. [879]

    For those reasons, I am satisfied that Mr Xu had authority from his fellow director of Holdings, Mr Zhang, both as a result of instructions given by Mr Zhang and as a result of instructions given by Ms Xie with Mr Zhang’s actual or ostensible authority, to use the settlement proceeds of the Lansvale Property to repay the balance of the Luna Loan and to repay the moneys agreed to be owing to Mr Xu himself.

23. [880]

    As set out at paragraphs [770]-[771] above, Mr Xu obtained a written direction from Ms Gu that some $600,000 of the moneys from the settlement of the Lansvale Property be repaid to her in respect of the Luna Loan, by means of a payment into a nominated bank account held by Ms Gao.

24. [881]

    In accordance with Ms Gu’s direction, an amount of $565,500 was paid from the Lansvale settlement proceeds to the nominated account. Mr Xu had calculated this amount as representing the balance of the Luna Loan as at the date of the payment, including interest (see paragraph [807] above).

25. [882]

    In short, the payment into Ms Gao’s account was a payment to Ms Gu’s nominee, in respect of a liability which Holdings had to Ms Gu pursuant to the Luna Loan Agreement, and was made in accordance with instructions from Mr Zhang that the settlement proceeds from the sale of the Lansvale Property be used for this purpose.

26. [883]

    Within several days of this payment being made into Ms Gao’s account, an amount of $120,000 was transferred from Ms Gao’s account to Ms Gu’s account. There were no submissions made by Mr Zhang and Holdings about the difference between this sum and the amount received by Ms Gao, and no cross-examination of Mr Xu in relation to this difference. Irrespective of whether the full amount which was received by Ms Gao as nominee of Ms Gu was paid to Ms Gu, the payment of $565,500 to Ms Gu’s nominee was a payment to Ms Gu which reduced the Luna Loan by that amount. Ms Gu had accepted, by her written direction to Auschn, that the payment made to the nominated account of Ms Gao had the effect of discharging the Luna Loan to the extent of that payment.

27. [884]

    In closing submissions, the claim advanced by Holdings and Mr Zhang in respect of the payment to Ms Gao was based primarily on the basis that there was “no approval that’s given or no authorisation that’s given” for this payment to be made, and that “Mr Xu had on any view, a conflict of interest”, with the situation said to one “which mirrors the position in relation to Panania”:

28. [885]

    I have addressed above the authorisation for this payment. As regards the non-disclosure issue, similar comments apply to those made in respect of the Panania Proceeding (see paragraphs [845]-[846] above). In particular, there was no pleaded issue in the Lansvale Proceeding regarding the manner in which the funds advanced by Ms Gu under the Luna Loan had been disbursed, or regarding Ms Gu’s retainer of Auschn, or regarding the direction which Ms Gu gave Mr Xu.

29. [886]

    The interests of Mr Xu were not in conflict with the interests of Holdings or Mr Zhang so far as the payment to Ms Gu was concerned. The directors of Holdings (Mr Zhang and Mr Xu) had agreed, as outlined above, that the Lansvale Property would be sold and that the settlement proceeds would be used to repay moneys owing by Holdings (and Mr Xu and Mr Zhang) to Ms Gu. The sale of that property, and the application of its proceeds in that way, was a necessary part of the agreed process to separate the parties’ financial affairs. It was in the interests of Holdings, Mr Zhang and Mr Xu that those steps be undertaken.

30. [887]

    The remainder of the payment made to Ms Gao’s account – being an amount of $50,000 – represented the amount of interest which was agreed to be payable by Holdings to Mr Xu’s brother (see paragraphs [809]-[811] above). Mr Xu gave unchallenged evidence that he received authorisation from his brother that the amount due to him by way of interest should be paid into Ms Gao’s account.

31. [888]

    Mr Zhang and Holdings submitted that “there was no entitlement of [Mr Xu’s] brother to $50,000 worth of interest”, because there was no loan made by his brother to Holdings. I do not accept this submission. For reasons set out at paragraphs [715]-[716] above, I have determined that Mr Xu’s brother had advanced the sum of $400,000 to Holdings to enable the purchase of the Lansvale Property.

32. [889]

    Mr Zhang and Holdings also submitted that while “there was some discussion with Ms Xie in which there was some notional agreement that $50,000 would be paid to Mr Xu”, this “couldn’t possibly constitute an authorisation on the part of Holdings to make such a payment”, since Ms Xie was not a director of Holdings. I also do not accept this submission. For reasons set out above, I have determined that Ms Xie had actual or ostensible authority from Mr Zhang to give directions to Mr Xu and Auschn in relation to the sale of the Lansvale Property.

33. [890]

    Even if a breach of fiduciary duty had been established in respect of the Gao Payment, it would be inequitable for any orders to be made requiring Auschn, Mr Xu or Ms Gao to repay the amount of $615,500 to Holdings. That is because:

    1. (1)

       by the payment of $565,500 being made into the account nominated by Ms Gu, in accordance with her direction, Holdings’ liability in respect of the Luna Loan was reduced by that amount; and

    2. (2)

       by the payment of $50,000 being made into the account nominated by Mr Xu’s brother, Holdings’ obligation to pay interest to Mr Xu’s brother in respect of his $400,000 loan was discharged.

34. [891]

    It would be inequitable for Holdings both to receive the full benefit of the payment of $615,500 into Ms Gao’s account, which discharged those obligations of Holdings, and at the same time claim back all or part of that amount from Ms Gao, Auschn or Mr Xu.

35. [892]

    Similarly, the claim against Ms Gao for money had and received fails. It does not matter that Holdings did not have any liability to Ms Gao. Holdings had, at the time of the Gao Payment, a liability to each of Ms Gu and Mr Steven Xu, and each directed that any payment made by Holdings in reduction of such liability be made to Ms Gao. It follows that Holdings received consideration for the making of the Gao Payment, namely, a reduction in its liabilities to Ms Gu and Mr Xu’s brother in a total amount that was equal to the amount of that payment.

36. [893]

    The payment of $535,000 to FAWD from the settlement proceeds of the Lansvale Property represented a payment made in order to reimburse Mr Xu for moneys which he had invested in Firmtech.

37. [894]

    In closing address, Mr Zhang and Holdings submitted that: “[Mr Xu] was acting for … Holdings and was meant to represent the interest of Holdings, which was a trustee of a trust, and the fact that Holdings may have owed monies to Firmtech did not justify Mr Xu at his own whim to simply pay those monies to FAWD to satisfy a liability that Firmtech had to him”. The position was put as follows in their written submissions: “If monies were owed by Holdings to Firmtech, then they should have been paid to Firmtech, not to FAWD. It was then a matter for the directors of Firmtech to decide whether those monies should then be paid to or at Mr Xu’s direction”.

38. [895]

    I am satisfied that, in making this payment from the settlement proceeds of the Lansvale Property, Mr Xu was not acting “at his own whim”, but was acting in accordance with, and implementing, an agreement reached by the directors of Firmtech and Holdings (that is, an agreement reached between himself and Mr Zhang).

39. [896]

    Mr Zhang had proposed to Mr Xu that their financial affairs should be separated, including their investment in Firmtech and their investment in the Lansvale Property which Holdings owned. It was recognised in the “Closing Down Calculations” sent by Mr Zhang to Mr Xu, in the discussions between Mr Zhang and Mr Xu at the 30 January meeting, and in the WeChat messages which were posted on the Group Chat to which Mr Zhang and Mr Xu were parties, that the Lansvale Property (which was owned by Holdings and which had been purchased, in part, using funds advanced by Firmtech) had to be sold in order for Mr Xu to be repaid the amount of $1.22m which he had invested in Firmtech.

40. [897]

    I accept that Mr Xu did not inform Mr Zhang that he was effecting the agreed repayment to himself by making a payment directly to FAWD, rather than by making a payment to Firmtech, in respect of the funds advanced by Firmtech to Holdings for the purchase of the Lansvale Property (calculated in the “Closing Down” spreadsheets as totalling $927,015), and then making a payment from Firmtech to Mr Xu in respect of the funds which he had advanced to Firmtech (calculated in the “Closing Down” spreadsheets as totalling $1.22m). However, the WeChat messages that were posted on the Group Chat recorded an agreement that funds would flow from the sale of the Lansvale Property to Mr Xu, in order to repay the moneys which he had advanced to Firmtech. The payment made from Auschn’s trust account to FAWD (which was wholly owned by Mr Xu) gave effect to this agreement.

41. [898]

    In circumstances where Mr Zhang had agreed with Mr Xu that moneys from the Lansvale Property would be paid to Mr Xu in reduction of the amount owed by Firmtech to him, the absence of a disclosure by Mr Xu to Mr Zhang of the identity of his nominee for the purpose of receiving this payment does not establish an absence of informed consent.

42. [899]

    Given those matters, I am satisfied that this payment was made in accordance with the authority of Holdings.

43. [900]

    For the same reasons, the claim against FAWD for money had and received fails. As a result of the amount of $535,000 being paid to Mr Xu’s nominee (FAWD) from the moneys held on trust for Holdings, Firmtech’s debt to Mr Xu was reduced by the amount of that payment, and Holdings’ debt to Firmtech was reduced by the same amount. It therefore does not matter that Holdings did not have any liability to FAWD. Holdings did receive a benefit by making the payment, namely, a commensurate reduction in the amount of its liability to Firmtech. It also follows that Holdings did not suffer any loss by reason of the payment being made.

44. [901]

    Auschn did not provide any settlement statement to Holdings. This was a breach of its obligations under its retainer. However, Holdings did not identify any damage flowing from any such breach. Instead, its claims were all directed to the loss alleged to have flowed from the making of unauthorised payments from the settlement proceeds to Ms Gao and FAWD.

45. [902]

    For reasons set out above, I have found that those payments were authorised, and that Holdings did not suffer any loss by the making of those payments.

46. [903]

    It follows that the claims in relation to those payments not been established.

47. [904]

    As regards the payments made in August 2022 from the Holdings Trust Balance to two creditors of Firmtech, I accept that Mr Xu was motivated by a concern to ensure that Firmtech complied with a statutory demand issued by Alcentre by the stipulated deadline. At the time, Firmtech did not have cash to pay the amount of the statutory demand, but Firmtech was (on Mr Xu’s understanding) owed an amount by Holdings which exceeded the amount of the statutory demand. Mr Xu sought to arrange a meeting of the directors of Holdings and Firmtech on short notice, but Mr Zhang was unavailable. In those circumstances, Mr Xu went ahead and caused Auschn to pay moneys from the Holdings Trust Balance to him, which he then used to pay Alcentre and to make a payment to the lessor of the Revesby Factory.

48. [905]

    In the absence of a provision specifying the period required for the convening of a directors’ meeting (and I was not referred to any such provision), the general principle is that directors should come together whenever called on notice of reasonable length and without any expectation of being told why they are being summoned to a meeting: Dhami v Martin [2010] NSWSC 770 at [47] (Barrett J). In determining what is reasonable, the practice usually adopted by the board is a relevant consideration, and the issue may ultimately need to be resolved by reference to the nature of the business to be dealt with at a particular meeting: Bentley Capital Limited v Keybridge Capital Limited [2019] FCA 1675 at [38] (Banks-Smith J). This will include the urgency of the need for the directors to take particular action: see Re Keneally (as administrator of Australian Blue Mountain International Cultural & Tourist Group Pty Ltd (admin apptd)) [2015] NSWSC 937 at [57] (Black J) and the cases there cited.

49. [906]

    Whether or not there was an urgent need for a meeting of Firmtech’s directors (given the approaching deadline for payment of Alcentre’s statutory demand) and whether or not the notice given to Mr Zhang of the meeting was reasonable in that context, the difficulty for Mr Xu is that, prior to the payments being made from the Holdings Trust Balance, he had received a letter from Mr Zhang’s solicitors stating that Mr Zhang did not agree to the proposed resolutions and seeking an undertaking that Mr Xu would not take any steps to implement the purported resolutions.

50. [907]

    Accordingly, when making the payments, Mr Xu was aware that he did not have the agreement of Mr Zhang, who was his fellow director of Holdings and of Firmtech, to those payments being made.

51. [908]

    Mr Xu referred to evidence that there had been an agreement between himself and Mr Zhang regarding what would happen in the event of a deadlock between them as directors of Firmtech. Specifically, as noted above, Mr Zhang accepted, in the Principal Proceeding, that it was a term of his pre-incorporation agreement with Mr Xu that if a dispute arose about the manufacturing, production or technical side of Firmtech’s business, Mr Xu would defer to Mr Zhang and if a dispute arose about Firmtech’s finances, Mr Zhang would defer to Mr Xu (see paragraph [51(8)] above).

52. [909]

    However, this was an agreement in respect of the management of Firmtech. It may be accepted, on the basis of the terms of this agreement, that Mr Xu had express authority to make decisions for Firmtech in the event that there was a dispute between him and Mr Zhang regarding a financial matter (such as whether available cash should be used to pay a particular debt). However, Mr Xu did not have any authority, whether pursuant to this agreement or otherwise, to make decisions on behalf of Holdings in circumstances where there was a dispute between himself and Mr Zhang about a financial matter affecting Holdings (such as whether Holdings should make a payment from its funds to Firmtech).

53. [910]

    It follows that Auschn made the payment from the Holdings Trust Balance to Mr Xu, and Mr Xu received those funds and used them to make the payments to Alcentre and to the lessor of the Revesby Factory, in circumstances where Auschn and Mr Xu did not have, and knew that they did not have, authority from Holdings to make those payments. Auschn thereby breached its duties to Holdings under its retainer, and Mr Xu breached his duty under s 180 as a director of Holdings.

54. [911]

    However, Mr Xu did not make any profit or receive any benefit as a result of these payments being made, since the sum of $197,604.03 was paid out to Firmtech’s creditors in reduction of debts which were due and payable, and no part of the funds were retained by Mr Xu (with the balance of the moneys being returned to be held on trust for Holdings).

55. [912]

    Further, I am not satisfied that Holdings suffered any loss as a result of the payment being made.

56. [913]

    It is common ground that Firmtech had advanced funds to Holdings to purchase the Lansvale Property. In the “Closing Down Calculations”, Mr Zhang calculated the amount advanced as being $927,015; in the resolutions which he prepared for Firmtech in August 2022, Mr Xu recorded that Firmtech had providing funding of $810,772.24 to purchase the Lansvale Property; and in these proceedings, Mr Zhang and Holdings submitted, and Mr Xu did not dispute, that an amount of $869,860.00 from Firmtech’s account was paid to Holdings for the purchase of this property.

57. [914]

    Leaving aside the FAWD Payment of $535,000, there was no evidence of any payment being made by Holdings which effected a reduction in its debt to Firmtech. Whichever of the figures outlined above is used, there remained, after the FAWD Payment, a balance owing by Holdings to Firmtech which was greater than the amount that was subsequently paid from the Holdings Trust Balance to discharge debts of Firmtech in August 2022 (namely, $197,604.43).

58. [915]

    When, on 26 August 2022, the money which was held by Auschn on trust for Holdings was transferred to the director of Firmtech who was responsible for managing its finances (Mr Xu), and used by him to pay creditors of Firmtech, Holdings received a benefit which was precisely equal to the amount that was paid, namely, a commensurate reduction in the debt which it owed to Firmtech.

59. [916]

    The only basis on which Mr Zhang and Holdings cast doubt on the existence of a liability of Holdings to Firmtech as at the relevant date was as follows:

60. [917]

    However, as I have noted at paragraphs [802]-[803] above, there was no pleaded issue regarding the invoice of $731,500 which was issued by Firmtech on 12 May 2021 for project management fees in respect of the Lansvale Property and was paid by Holdings.

61. [918]

    Insofar as Holdings claimed damages or equitable compensation in respect of the payments made by Auschn and Mr Xu from the Holdings Trust Balance on 26 August 2022, it was for Holdings to prove its loss. Holdings pleaded in its Amended Statement of Claim that, as at 26 August 2022, it “was not liable to … Firmtech”. The matters which I have outlined above indicate that Holdings did have a liability to Firmtech as at that date, which exceeded the amount of the payments made from the Holdings Trust Balance on that date. If Holdings wanted to contend that it did not have any liability to Firmtech as at August 2022 because the payment of $731,500 which was made by Holdings to Firmtech in May 2021 was not a genuine payment for services, and should therefore be brought to account so as to extinguish Holdings’ debt to Firmtech in respect of the moneys advanced for the Lansvale Property, it was necessary for Holdings to plead, and to lead evidence to establish, those matters. Holdings did not do so, and accepted in closing oral address that such an issue was “not raised in these proceedings”.

62. [919]

    It follows that, for the reasons I have set out above, Holdings has not established that it suffered any loss as a result of the payment of $197,604.43 which was made from the Holdings Trust Balance in August 2022.

63. [920]

    For the reasons set out above, none of the claims advanced by Mr Zhang or Holdings in the Lansvale Proceeding has been established, and those claims will be dismissed.

64. [921]

    In the Principal Proceeding, I have determined that each of Mr Zhang and Ms Xie breached their fiduciary and statutory duties to Firmtech, by diverting various business opportunities to Aluminum and Logikal during the period when they were responsible for operating Firmtech’s Windows and Doors Business. I have also determined that, by reason of this conduct, the affairs of Firmtech were conducted in a manner which was contrary to the interests of the members as a whole, and which was oppressive to, unfairly prejudicial to, and unfairly discriminatory against Mr Xu.

65. [922]

    I have determined that Firmtech is entitled, at its election, to an account of profits or equitable compensation in respect of the breaches of fiduciary duty. I have determined that the profits to which it is entitled are those from the particular projects which were diverted to Aluminum or Logikal prior to Firmtech ceasing operations (and not those from other projects which were sought and obtained by Aluminum and Logikal after Firmtech ceased operations). The relevant projects are identified at paragraph [598] above. Similarly, the compensation to which Firmtech is entitled for the breaches of fiduciary and statutory duties which have been established is compensation flowing from the loss of those particular projects which were diverted prior to Firmtech ceasing operations. The parties will have an opportunity to address on the appropriate orders for the resolution of the outstanding issues of relief, including any consequential relief.

66. [923]

    Ms Xie has failed to establish her claims in the Panania Proceeding, and Mr Zhang and Holdings have failed to establish their claims in the Lansvale Proceeding. Those claims will be dismissed.

67. [924]

    Mr Xu has established his cross-claim in the Panania Proceeding, and is entitled to judgment in the sum of $163,256.22, plus pre-judgment interest.

68. [925]

    It is my preliminary view that, in each proceeding, costs should follow the event, such that Mr Xu and Firmtech are entitled to an award of costs in the Principal Proceeding, and the defendants in each of the Panania Proceeding and the Lansvale Proceeding are entitled to an award of costs.

69. [926]

    I will direct the parties to bring in short minutes of order to give effect to these reasons. If there is any dispute about the form of those orders, or if any party seeks a different costs order, or a costs order other than on the ordinary basis, the parties will have an opportunity to be heard on these matters.

70. [927]

    Accordingly, I make the following orders. The Court:

    1. (1)

       Directs the parties to bring in short minutes of order, by 5pm on 31 October 2024, to give effect to these reasons for judgment.

    2. (2)

       Directs that, insofar as any aspect of the orders to give effect to the reasons for judgment cannot be agreed: