Lui v Guan; Sun Link Group Pty Ltd v Lui

HIS HONOUR: By an amended statement of claim filed on 29 September 2015 (“the ASOC”), the plaintiff, Mr Kevin Yung Lui, commenced proceedings for breach of contract against the defendants, Ms Xiuyan Guan and Sun Link Group Pty Ltd (“Sun Link”) (collectively, “the defendants”). Those proceedings shall hereinafter be referred to as “the primary matter”. The central question arising in the primary matter was whether Mr Lui should receive damages for breach of an agreement entered with Ms Guan, namely, the “Co-operative Agreement” dated 18 January 2015 (“the agreement”). The ASOC pleaded that the agreement was also made on behalf of Sun Link (I will return to that contention later in this judgment).

In the primary matter, Mr Lui initially sought declaratory relief and specific performance of the agreement or, in alternative, the transfer of title of a Rolls Royce Phantom IS68 Sedan (“the vehicle”) to him. The vehicle was registered to Sun Link. The relief claimed, as pleaded, is extracted below:

By a statement of claim filed on 30 July 2015, Sun Link commenced detinue proceedings against Mr Lui and sought damages with respect to the vehicle (“the second matter”). The second matter was listed with the primary matter; the matters were to be heard together.

On 13 May 2016, the vehicle was sold by its mortgagee for $200,000.

At the outset of the proceedings, the Court sought to confirm the status of the second matter, in circumstances where the vehicle had been sold by the mortgagee, the mortgage with the financier settled and the remaining equity of around $24,434.87 was being held by the Supreme Court of Victoria. The onus was put upon the Sun Link to communicate the course it intended to take, in that respect, “by communicating with your opponent what the basis of it is, how you say it comes into the proceedings now and then, what should be done with it”. Counsel for Sun Link, Mr I Leong, as to that issue, intimated an intention to raise arguments as to the issue of damages, notwithstanding the fact that pleadings in the second matter were predicated upon Mr Lui having possession of the vehicle. However, any argument, in that respect, received little development and appeared to dissipate as the proceedings progressed with the focus of the parties, in the balance of the proceedings, fixated upon the resolution of issues in the primary matter. I will return to my findings, as to the second matter, after my consideration of the primary matter.

Returning to the primary matter, following the sale of the vehicle, the relief sought in the primary matter was ultimately reduced and refined by Mr P Afshar, counsel for Mr Lui, at the outset of the hearing, and without resorting to the filing of further amended pleadings, as follows:

The relevant cause of action pleaded is breach of contract. The following summary is derived from the ASOC filed on 29 September 2015 and the defence to the amended statement of claim filed on 23 October 2015 (“the defence”). For the purpose of concision, particulars, for the most part, have been omitted from the below summary.

On or about 18 January 2015, Mr Lui entered into an agreement with Ms Guan for and on behalf of Ms Guan and Sun Link. The defendants, in that respect, admitted that Mr Lui and Ms Guan entered into an agreement on that date. The defendants denied the balance of the matters alleged, including the pleading that Sun Link was party to the agreement.

Mr Lui also pleaded that at all relevant times that Ms Guan was the sole director and shareholder of Sun Link. The defendants denied this and pleaded that Henson Liang was also a director of Sun Link for the period 31 October 2012 to 23 February 2015.

It may be noted at this juncture, that there was no claim that the agreement has no legal effect or was, in some way, vitiated.

The terms of the agreement were pleaded and particularised by Mr Lui as follows:

The defendants denied those matters and pleaded the following:

Between January and March 2015, Mr Lui performed his obligations pursuant to the agreement. This was denied by the defendants.

On or about 25 March 2015, Shuangfu Development Pty Ltd (“Shuangfu”) exchanged a contract for the sale of land with Anson City Developments 1 (Australia) Pty Ltd (“Anson City”) for the sale of the site located at 81-85 Anzac Parade, Kensington in New South Wales for $39 million after a successful bidding process, which Mr Lui facilitated. The exchange was effected by the real estate agent Jones Lang LaSalle acting on instructions from the mortgagee or a receiver appointed by the mortgagee. In answer to this pleading, the defendants:

Mr Lui further pleaded at paras 11 and 12 of the ASOC:

In answer to the foregoing pleading, the defendants said: “The defendants do not understand and accordingly do not admit paragraphs 11 and 12”.

In summary, the defendants denied that Mr Lui performed his obligations.

Mr Lui pleaded that in breach of the terms of the agreement, and despite demands by Mr Lui, Ms Guan and Sun Link failed or refused to:

As to the contended breach, the defendants:

As a result of breaches by Ms Guan and Sun Link of the terms of the agreement, Mr Lui pleaded, he has suffered loss or damage. This was denied by the defendants.

By their defence to the ASOC, the defendants also introduced a pleading with respect to the Property, Stock and Business Agents Act 2002 (NSW) (“the Act”). That pleading is extracted in full (together with particulars):

The agreement (the existence of which was admitted) was a written contract, which included a combination of typed Chinese script and English, and was executed by the parties on 18 January 2015.

Mr Lui led expert evidence as to the terms of the contract when the Chinese script was translated to English. The English translation was prepared by Lin Zhou, accredited NAATI Professional Translator and was before the Court (see Ex 1).

The English translation appears below (with the words that originally appeared typed or handwritten in English and, therefore, not requiring translation, italicised for the purposes of distinction only):

It may be noted that counsel for the defendants, notwithstanding his agreement to the English translation, reserved the right to run an uncertainty argument as to the translation; a matter that was not pleaded. Leave was granted to counsel to file and serve a notice of motion to amend its defence in that respect. A notice of motion was filed by the defendants but, ultimately, not moved upon. The issue of costs, in that respect was reserved.

Counsel for the defendants ultimately accepted at the outset of the proceedings that Ex 1 represented the English form of the agreement. Later, Ms Guan made, during the course of her evidence, several assertions suggesting, in effect, that Mr Lui had perpetuated a fraud with respect to the agreement, such that sections of agreement had been excised or otherwise changed from the original. Those assertions had not been raised in the pleadings or at an earlier point in the proceedings. That factor, in conjunction with several others, went directly to Ms Guan’s credit and contributes to my finding that she was not, as I will discuss below, a truthful or reliable witness. It may be noted that the rejection of her evidence, in the absence of corroboration (as I will later find), results in a rejection of the pleading in the defence that the term of the agreement was for a period of 10 days from the date of execution.

The matter proceeded before the Court upon the concession of counsel for the defendants that the terms of the agreement were those contained in and marked Ex 1. Despite some very late prevarication by counsel for the defendants about some of the terms of the agreement as expressed in Ex 1 (without any submission seeking leave to depart from that previous concession), I find the agreement was in the terms of Ex 1.

The particulars pleaded as to the form of the agreement were as follows:

At this juncture, it should be noted that Shuangfu, whilst listed as the “project company” on the agreement, was not a party to the agreement. I will deal with the balance of those particulars later in this judgment.

I will also turn to the issue of construction at a separate juncture. Further, detail as to the events that following the signing of the agreement will be set out under the heading “Factual Background” below.

Shuangfu purchased seven parcels of land in Kensington which shall hereinafter be described as “the Kensington land” (it may be noted that two other parcels of land were unaccounted for in the evidence and the submissions of the parties, but that gap is immaterial to the disposition of the issues in the proceedings). The Kensington land incorporated the land appearing in the preamble to the agreement, namely, “81-85 Anzac Parade, Kensington”.

The evidence disclosed (as will be discussed in greater detail below) that Shuangfu purchased the Kensington land for the purposes of developing a mixed residential and commercial property site at Kensington using the Kensington land (hereinafter referred to as “the Kensington Project”).

It was not entirely clear, on the evidence, why the agreement did not refer to the whole of the Kensington land, which seven parcels incorporated 81-95 Anzac Parade, Kensington and 69-71 Boronia Street, Kensington. No party relied upon or referred to that fact. In any event, it is not a matter that will occupy further consideration in this judgment because whether Mr Lui’s obligations under the agreement concerned the lesser or the greater of the Kensington land, the issue in the proceedings is whether he performed under the agreement as properly construed with respect to the land or project specified therein. That is not to say that an issue did not emerge in the proceedings as to which parcels of land were in fact the subject of various offers made by various relevant entities up to the sale of the Kensington land. However, that issue can await discussion later in this judgment with respect to performance.

The purchase of the Kensington land was financed pursuant to the Kensington Loan Agreement dated 9 May 2014, between Australia Capital Financial Management Pty Ltd (“A Capital”) as lender, and Shuangfu as borrower. A total sum of $21,353,357 was drawn by Shuangfu in respect of the Kensington Project in accordance with that agreement.

At this juncture it should be noted, during Mr Lui's cross-examination, there were many and varied attempts by the defendants' counsel to challenge Mr Lui's evidence in relation to the use of the word “project” as opposed to “land” or “property”. Those challenges were aimed at causing Mr Lui to agree he was engaged to sell land and so to enhance the defendants' case in relation to the Act (as discussed below under the heading, “Real Estate Agent Issue”). This cross-examination ultimately failed, not only because Mr Lui explained his reasons for using the word “project” coherently, but also because evidence from Ms Guan established that she also used the description, “project”, to describe the Kensington Project rather than using the word “land” to describe it, especially in the context of Shuangfu’s attempted sale to Landream Project Management Pty Ltd (“Landream”) (as discussed below under the heading, “The Option / Sales contract with Landream: 22 September 2014”). The same instance occurred throughout counsel for the defendants’ submissions, both written and oral. As such, over the course of the proceeding references are made to the Kensington Project, the Kensington properties and the Kensington land. I accept that delineation has primarily been made in order to advance arguments with respect to the real estate agent issue, namely, the second case theory advanced by counsel for the defendants.

I will refer variously to the Kensington Project, as defined above or the Kensington land, again in that context, but particularly in light of an expression of interest process discussed below.

Shuangxing Development Pty Ltd (“Shuangxing”) purchased six properties in Auburn (“the Auburn properties”). Shuangxing purchased the Auburn properties for the purposes of developing a mixed residential and commercial property site at Auburn.

A Capital initially agreed to lend $12 million from its own funding to Shuangxing in settling the Auburn properties. A Capital subsequently agreed to raise a further $7 million from external funding for settlement, on the following conditions:

Thus, by the loan agreement dated 26 June 2014, it was agreed that the loan with respect to the Kensington Project would be refinanced with A Capital (as a result, the Kensington Loan Agreement dated 9 May 2014 was replaced by the loan agreement dated 26 June 2014). A Capital was listed as the registered mortgagee for the Kensington land. It may also be noted that Sun Link was listed, amongst others, as guarantor to the loan agreement dated 26 June 2014. I will return to a discussion of that loan agreement below.

Mr Lui is the plaintiff. He is a senior project development consultant who provides advice and obtains funding for development projects in Australia from investors located both in Australia and overseas. Over the years, he has formed relationships, acquaintances and a network, which he used to conduct his business. The defendants in the primary matter contended that Mr Lui was a real estate agent in relation to the Kensington Project, I will return to this argument later in the judgment.

Mr Lui has a 40% shareholding in “Elite 100”. Elite 100 have offices in Sydney, Hong Kong, Beijing, Shanghai and Macau. In May 2012, “Elite 100 Australia Pty Ltd” was registered for the purpose of “promoting Australia as the best destination for business migration, especially in China, India and other Asia regions”.

The Elite 100 website sets out the vision of the business: “Elite 100 aims to provide the best opportunities and services for Australia and its people through globalised experience and expertise in property development, investment, immigration, integrated resorts, media and art”.

By its website, Elite 100 also set out brief information about “[t]he new Australian Significant Investor Visa” and described it as “a not-to-be-missed opportunity for wealthy individuals to invest in the future security of their families”.

Elite 100 stated that the Australian Significant Investor Visa (“SIV”) was introduced “to assist high net worth migrants who will make a minimum investment of five million AU dollars in the Australian economy for a continuous four year period”.

Mr Lui gave evidence that Elite 100 does not employee registered migration agents. However, “many registered immigration agents, alliance with us”. As a result, he would not attend to the completion of any SIV applications.

Elite 100 was described as “a modern enterprise group”. It described its core business operation as focused upon:

In the absence of evidence to the contrary, it must be concluded that Mr Lui did not have a real estate agent’s license.

Ms Guan is the first defendant in the primary matter. She was, at various points that will be distinguished where relevant, the sole director and/or sole shareholder of the following companies:

Both Shuangfu and Shuangxing entered into agreements to purchase properties, as discussed above.

It was not contested that Ms Guan personally funded a component of the Kensington Project in the amount of $12 million. (A debt that would later be absorbed by the Australia Taxation Office (“ATO”), another creditor of Shuangfu: see below under the heading “Meetings of the Creditors to Shuangfu”).

Sun Link is the second defendant in the primary matter. Both Ms Guan and Mr Liang were directors of Sun Link at one stage. However, on the material before the Court, the precise timeframes of each directorship is not defined. Notwithstanding that fact, I will ultimately find that Mr Liang was a director of Sun Link, together with Ms Guan, at 26 June 2014 through to 23 February 2015. As at the time of these proceedings, Ms Guan was the sole director of Sun Link.

As will be discussed below, no evidence of Mr Liang was before the Court and, as such, the Court has a limited account as to his role within the events surrounding the dispute.

From the material before the Court, the following is known:

It should also be noted that Mr Liang’s first and last name was inconsistently spelt throughout documents before the court as both Henson/Hanson and Liang/Leung, as such, a reference to Mr Leung should be taken as a reference to Mr Liang.

The following parties are also relevant to the facts in the primary matter discussed below (whilst some of the parties may have been earlier mentioned or introduced, for convenience and completeness, they are repeated):

On 6 June 2018, the parties provided the Court with an agreed statement of issues, setting out the issues in dispute in the primary matter. Those issues are set out below:

This judgment will be structured so as to firstly deal with the relevant factual circumstances, globally, with respect to those issues. The consideration of those issues shall be discussed in two parts:

Mr Lui’s submissions consisted of the following:

The submissions of the defendants consisted of the following:

The Court received in evidence a total of 19 exhibits that consisted of a large amount of documentary material. That material included, inter alia, the following:

It may be noted that some of the business related documents were controversial, namely, the email correspondence of Jones Lang LaSalle, with respect to the sale of the Kensington land, marked Ex 18 in the proceedings, to which I will return.

Ms Guan and Mr Lui were the only two witnesses in the primary matter. The defendants sought to call a third witness, Mr Liang. I will briefly turn to the submissions of the parties in that respect. However, I will firstly turn to the credit issues concerning Ms Guan and Mr Lui.

Counsel for Mr Lui made extensive submissions as to Ms Guan’s credit. He gave notice of this intention to do so at various points in the proceedings, including during Ms Guan’s cross-examination. By and large, little submissions were advanced in reply by counsel for the defendants.

I accept the submissions of counsel for Mr Lui, in that respect, which underpin a substantial portion of my findings that follow, as they reflect my close observations of Ms Guan during her evidence. I note that many directions were given by the Court during the course of Ms Guan’s evidence and the Court raised a question with counsel for the defendants, during submissions, as to how the Court should approach its deliberations if it did not accept Ms Guan’s evidence.

Ms Guan was evasive, argumentative, non-responsive and displayed an unwillingness to engage with questions that were asked of her and to answer them directly, fairly, openly and, in some cases, at all.

An applicable example was provided by counsel for Mr Lui as follows:

Ms Guan obfuscated and hindered the cross-examination process by feigning illness and coughing through questions. Counsel for Mr Lui provided a number of examples of this behaviour as follows:

Rather than answering questions, Ms Guan coughed strategically throughout her cross-examination to, in my view, interrupt the flow of cross-examination, especially when she was asked difficult questions. The following passage from the transcript records the observations from the bench of Ms Guan’s conduct in the witness box:

It might be observed that the transcript of the proceedings does not indicate that the Court intervened at or about that part of the proceedings recorded above to direct the court officer to not provide further assistance to the witness, unless otherwise directed to do so, as it appeared that process was also being employed, by the witness, to distract and interfere with the cross-examiner.

The witness often made speeches, in which she repeated the assertions and claims in support of her case rather than in engaging in a meaningful attempt to discharge her duties as a witness. Further, she repeatedly ignored the Court’s directions to answer the questions put her. The following is an example of the same:

The Court made the following observations on day two her cross-examination, after continual examples of Ms Guan not answering questions put to her:

Ms Guan evaded direct questions about relatively neutral facts, such as the aims of the Kensington Project and, as the cross-examination progressed, began contradicting her earlier evidence with disregard for the Court and the oath she had taken. By the final day of her cross-examination, she had come to reject many of the propositions that were put to her about her intentions with respect to the Kensington Project, even propositions that she had accepted on the first day of her cross-examination.

The juxtaposition of her evidence from the first and third day of her cross-examination demonstrates Ms Guan’s evasion and duplicity. By the third day, she had begun to repeat the baseless propositions set out in her opening submissions, namely, the case theory that all she wanted to do was to sell the Kensington Project. Illustrations of that conduct were set out in a table proposed by counsel for Mr Lui, which is a fair representation of the proposition advanced by him, which I have accepted. That table is extracted below:

Towards the middle of her cross-examination, Ms Guan began to attack the agreement. Although she had admitted the agreement in her defence, had annexed the agreement to her own affidavit and her counsel had accepted the English form of the agreement, Ms Guan gradually descended, on the second day of her cross-examination, into an hysterical series of accusations as to “fraud”, as earlier mentioned, in relation to the agreement.

On the third day of cross-examination and day 5 of the trial, Ms Guan resumed her assertions in relation to the agreement complaining that the signature was a different size in the copy of the agreement annexed to her affidavit and the version sent to Mr Lui’s expert. That behaviour in giving evidence, reinforces my view that Ms Guan is a person prone to lying when she thinks she would gain an advantage by that behaviour and she did so in giving her evidence.

At the height of that conduct, she claimed the following:

When challenged on her memory, she gave a series of answers, reflecting in a significantly adverse way as to her credit. I accept the submissions of counsel for Mr Lui, in that respect, that Ms Guan had deceitfully curated her evidence to serve her interests in this case. That is illustrated by the following:

And later in her cross-examination, Ms Guan gave the following evidence:

More generally, Ms Guan deflected and interrupted questions rather than answering them directly and honestly and chose to hold onto untenable positions even when confronted with documents or with the logic of the opposing view. For example, when it was put to Ms Guan that she had not protested to Mr Lui about the contents of the agreement (to claim that the alleged “ten day” term was missing) when she had received it from him the following exchange took place:

The letter her solicitor sent to Mr Lui’s solicitors did not make any mention about the agreement being fake or that there was a “ten-day” term. An inference may be drawn that Ms Guan did not complain to her solicitor after she received the agreement from Mr Lui because there was no such “ten day” term. The “ten day” term was a falsification.

Her obstinate and obstructionist behaviour was another factor that undermined her credit. During the second day, the following exchange took place:

Ms Guan also feigned disinterest in the affairs of her companies, which behaviour strained credulity. Counsel for Mr Lui provided the following examples with which I concur:

In my view, Ms Guan’s evidence portrays intentional fabrication and reconstruction of conversations. For example, she accepted in cross-examination that if she had disagreed with any portion of Mr Lui’s evidence, she would have expressed her disagreement with the evidence. Yet, in her affidavit she had not disagreed with and had not denied significant portions of Mr Lui’s evidence, including a conversation that occurred on or around 30 December 2014 recalled by Mr Lui in his affidavit affirmed 8 December 2015. That conversation, recorded at para 63 (“the para 63 conversation”), was the subject of much debate as to its use in the case of Mr Lui and is extracted below:

Ms Guan was an unreliable witness; her evidence was inconsistent with and superseded by the major document in this case, namely, the agreement. I agree with Mr Lui’s submission that the agreement stands both as evidence of the parties’ agreement but also as evidence of Ms Guan’s intentions in relation to the Kensington Project.

Further, I do not consider Ms Guan should be accepted as a witness of truth. To the extent that her evidence is inconsistent with Mr Lui’s evidence (having regard to the findings about his evidence made below) and with any of the contemporaneous documentary evidence, it must be rejected and given no weight.

As a result, unless the evidence of Ms Guan is corroborated, I do not propose to accept it. In particular, I do not accept Ms Guan’s account of the para 63 conversation.

There was also a challenge as to the credibility of Mr Lui.

My overall observation of Mr Lui’s evidence is that he was a truthful witness whose evidence was reliable although sometimes prone to exaggeration or unnecessary embellishment.

I consider that Mr Lui gave his evidence in a careful and measured way. As challenged in cross-examination, his demeanour was not one of evasion or argumentative, but rather he refuted questions essentially designed to advance the defendants’ case theories, and drew distinctions or made concessions where appropriate.

Further, I do not consider his evidence was substantially damaged by cross-examination and in all respects his evidence is to be preferred to that of Ms Guan’s.

Counsel for defendants referred to the viva voce evidence of Mr Lui, which it was contended consisted of several contradictory or inconsistent statements. The submissions by counsel for the defendants, in that respect, and my consideration of them appears below:

The defendants made a further series of other contentions challenging Mr Lui’s credibility. It is convenient to deal with them, to the extent required, globally, although I do so in the context of my overall observations of Mr Lui which I have referred to above. A summary of the defendants’ submissions, in that respect, appears below:

As mentioned above, I will deal broadly with those contentions in the context of my favourable observations of Mr Lui as a witness. First, with respect to the introduction of Mr Pak vis-à-vis Mr Chan, Mr Lui’s evidence was concise, clear and responsive. The brevity of his answers, in particular, may also be attributed to the repetitious manner in which questions were framed and put to the witness, which at times were unfairly compounded and/or referred to earlier questions asked and answered. An illustration appears below:

Additionally, as mentioned above, counsel for the defendants contended that Mr Lui’s use of term “investor” was of significance and deliberately employed due to his “cognisance” of the Act. That contention cannot be accepted. Mr Lui, as revealed by the above responses, was simply answering questions, to the best of his ability, as to his performance under the agreement. It may also be added, in that respect, that the terms of the agreement contain the words “investment” in both cll 1 and 2, referring specifically to an “investment partner” and “appropriate investment developers”. Mr Lui also concisely explained what he understood an “investor” to be: “Investor is, is someone coming into invest for the property or joint venture with Ms Guan or take over the shares and then develop the, the whole development. That is what we call investors with money and with experience”. Any attack on Mr Lui’s credit as to the use of such a term in response to questions under cross-examination is meritless and I reject it.

Secondly, turning to the conduct of Mr Lui, in particular with respect to Jones Lang LaSalle, counsel for the defendants sought to put questions to the witness which had no evidentiary foundation, in an effort to advance the defendants’ case theory as to Mr Lui’s role as a real estate agent:

By that same evidence, it may be noted, that Mr Lui made concession, without prompting, as to his conduct with respect to Fairway.

Thirdly, notwithstanding Mr Lui’s clear and concise responses to questions, counsel for the defendants placed emphasis upon Mr Lui’s uncertainty at times. However, as exemplified in the example below, Mr Lui’s responses with uncertainty may generally be attributed to poorly framed and, at times, confusing questions. An example is as follows:

Fourth, as to the contention that Mr Lui attempted to “maintain” that it was not “commercial craziness” to, inter alia, find an investor to buy Shuangfu, that contention was based upon a mischaracterisation of the witness’ attempt to answer questions put to him. Mr Lui cannot be criticised for being careful with his evidence, given the importance of that evidence. He was attempting to answer, albeit with slight exaggeration at times, not “maintain” a position. Again, I refer to the following example:

Mr Lui, in my view, gave thoughtful and truthful evidence. None of the many and varied matters that have been suggested by counsel for the defendants undermine his credibility. The witness was responsive, as best could be expected, to, at times, poorly framed and confusing questioning. The fact the answers were not what counsel sought to adduce is not a foundation for an attack on the witness’ credibility.

Ms Guan and Mr Lui were the only two lay witnesses in the proceedings. There was due to be a third witness called by the defendants, namely, Mr Liang. The defendants did not disclose the content of the evidence they sought to call in that respect.

As to Mr Liang, counsel for Mr Lui submitted, that the defendants’ missing witness simply avoided giving evidence. Further, it was contended that, it seemed the defendants were more concerned about appearing to take steps to procure his attendance than actually procuring his attendance so as to avoid a negative inference. Given that Mr Liang has always been firmly in Ms Guan’s camp, it was contended, the failure to procure his attendance forms the basis for negative inferences.

Counsel for the defendants, in reply, relied upon the following submissions:

In reply to the defendants’ contentions, counsel for Mr Lui contended that there is no real explanation for Mr Liang’s absence “besides his say so”. It was submitted:

As to the absence of Mr Liang, the following may be noted:

Thus, the affidavit of Mr Liang was not read. There was no evidence by Mr Liang before the Court.

I do not consider that an adverse inference should be drawn with respect to Mr Liang being called in these circumstances, as sought by Mr Lui. However, the significance of the absence of Mr Liang’s evidence was that there is no evidence from him as to any involvement that he or Mr Lui had with Anson City, other than the cross-examination of Mr Lui, which I have dealt with earlier. The defendants were largely left to rely upon the letter of offer dated 4 November 2014, which I will deal with below.

Counsel for the defendants made a submission that Jones v Dunkel inferences should be drawn due to the failure of Mr Lui to call certain witnesses, namely, “Janette”, Mr Qian, Mr Chan, Mr Pak, Mr Chen, Mr Zhao and Mr Gung . In other words, the defendants submitted that Mr Lui’s failure to call witnesses should, in each case, “lead to an inference that the uncalled evidence … would not have assisted [Mr Lui’s] case”: J D Heydon, Cross on Evidence (LexisNexis, 10th ed, 2015) at [1215].

For example, it was submitted that Mr Chan was a person that the Court would expect Mr Lui to call and whose evidence could confirm Mr Lui’s allegations and, therefore, that the failure of Mr Lui to call Mr Chan should result in the inference that Mr Chan’s evidence would not have assisted Mr Lui’s case.

The principles in Jones v Dunkel were helpfully outlined in RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75]-[79] per McColl JA (with whom Emmett JA and Sackville AJA agreed) as follows:

Jones v Dunkel principles were further expounded in Fabre v Arenales (1992) 27 NSWLR 437 at 449-450 (per Mahoney JA, with whom Priestley and Sheller JJA agreed) as follows:

The defendants’ submissions as to Jones v Dunkel inferences cannot be accepted as counsel for the defendants has misunderstood the correct application of the principle. The key flaws made by counsel for the defendants, in this respect, are as follows:

Exhibit 18 consisted of email correspondence sent or received by Jones Lang LaSalle in relation to “the sale of 81-95 Anzac Parade, Kensington from Shuangfu Development Pty Ltd to Anson City Developments Pty Ltd”. The material was tendered by counsel for the defendants on 6 December 2017, the fifth day of the hearing, but initially made returnable in response to Mr Lui’s subpoena filed 15 June 2017.

The defendants relied upon a significant portion of that material to argue that Mr Lui had not performed under the agreement because it was evident, it was submitted, he nowhere appears in transaction or exchanges culminating in the sale of the land. I will return to this issue, but it is important to note, at this juncture, that these transactions or exchanges predominantly concern the period after the conclusion of the expression of interest process; that is, in my view, consistent with the agreement, as it will be construed below. However, the documents do not undermine Mr Lui’s evidence as to his activities directed to the expression of interest process.

As to the admission of Ex 18, counsel for the defendants advanced the following submissions:

The defendants also relied upon the following, inter alia, authorities:

Further, in a written submission marked Ex 19 in the proceedings, the defendants advanced the following submissions as to the tender of Ex 18 (referred to as “the Jones Lang LaSalle Bundle” in the following submissions):

The material in Ex 18 is plainly a set of business records from Jones Lang LaSalle. The material is relevant to an issue in these proceedings, namely, the defendants’ contentions as to the extent of Mr Lui’s involvement in the expression of interest process or the later acceptance of the bid, in particular, with respect to the Anson City. The material is, therefore, admissible pursuant to ss 56 and 69 of the Evidence Act 1995 (NSW). The remaining question, with respect to that evidence, was prejudice, having regard to the circumstances in which the material was admitted, namely, late in the proceedings, after Mr Lui’s evidence had closed, and concerning, at least in part, material that should have properly been raised with Mr Lui in the course of his evidence at the hearing given the submissions of the defendants. Notwithstanding the opportunity to raise further submissions on the question of prejudice, no submission was received, in that respect, from Mr Lui and no application was made, by either party, to re-open Mr Lui’s evidence or the proceedings otherwise.

It is implicit that the material was admitted, subject to submissions, but for abundance of caution, I formally admit it. Following this admission, the remaining question ultimately becomes one of weight to be attached to the records. That weight will be particularly affected, in the circumstances, by considerations as to whether the material should have been properly put to Mr Lui.

This section of the judgment sets out the relevant findings of fact in these proceedings, for the period between 2013 and 2016, in chronological order under the following headings seriatim:

In or around 2013, Mr Lui first met Ms Guan.

In or around September 2013, Ms Guan approached Mr Lui and told him that she had a problem with the Kensington Project. He was invited to have a look at the project and attended Kensington but was not retained to advise in relation to the Kensington Project at that time. The evidence that Ms Guan gave at the beginning of her cross-examination supports Mr Lui's evidence about the Kensington Project and its aims.

Mr Lui gave evidence that he met her through members of the Chinese community in Sydney that were acquaintances of Mr Lui. At the oral hearing, Mr Lui confirmed that Ms Guan was introduced by Mr Liang.

Prior to that introduction, Mr Lui had a conversation with Mr Liang. Mr Liang was seeking advice with respect to the purchase of the Kensington land for the proposed Kensington Project. Mr Lui was subsequently invited and attended the site of the Kensington land. That site visit was followed by a meeting with both Mr Liang and Ms Guan at a café in Kensington. Mr Lui was not retained to advise at that time.

Around that time, Ms Guan also approached Mr Lui for help with respect to her immigration troubles. Ms Guan was experiencing difficulties renewing her visa and applying for permanent residency. She reached out to Mr Lui, in this respect, for his assistance in the form of lobbying with his known political connections, which included Mr Philip Ruddock.

There was some confusion between both the written and oral evidence of Mr Lui as to the precise timing of the meeting or meetings in which Ms Guan sought help as to her “two major troubles”: immigration and the Kensington Project. I accept that conversations with respect to both issues occurred.

On 26 June 2014, Shuangfu and Shuangxing entered into the loan agreement, by way of deed, with A Capital, to purchase the respective properties each owned. Ms Guan, as sole director of Shuangfu and Shuangxing, executed the agreement. The loan agreement, as previously mentioned, replaced an earlier agreement made in May 2014. (The defendants described this new agreement as a “second collateralised loan agreement”).

It may be noted that two versions of the loan agreement, each dated 26 June 2014, were before the Court. The two versions appear to differ in their content, which was unexplained in the proceedings, but those differences (unless otherwise stated) are of no real consequence in this case.

The parties to the loan agreement were as follows:

It may be noted that both Ms Guan and Mr Liang, as directors of Sun Link, executed the loan agreement on behalf of Sun Link as guarantor, in accordance with s 127(1) of the Corporations Act 2001 (Cth). Thus, as at 26 June 2014, Mr Liang was also a director of Sun Link.

The facility limit was for $45,018,000. (During the proceedings the parties and witnesses would at times round the loan down, for ease of reference, to $45 million).

The base interest rate was 12% per annum. The default interest rate was defined as follows: “[f]or each seven day period by which the overdue interest payment or overdue loan repayment remains unpaid, the applicable interest rate under Item 3 will be increased by 1%”.

The recitals to the loan agreement are extracted below:

An important fact, for the purposes of this case, is the difference between the two versions as to the agreed “Share of Return” as listed in Item 4A of the Schedule:

Ms Guan accepted under cross-examination that she had obtained the facility from A Capital on the basis that it would share in the returns of the Kensington Project. The evidence of Ms Guan on this matter is consistent with Mr Lui’s evidence about his understanding of what Ms Guan wanted to achieve (whatever the mechanism), namely, the return would be effected, either by contract or by an investment to purchase shares in the holding company. That factual matrix is also consistent with and supports the structure of the agreement. The following passage of Ms Guan’s evidence, under cross-examination, is consistent with that factual proposition:

On 26 June 2014, Ms Guan guaranteed the “borrowers” obligations under the loan agreement by way of a general security deed and a deed of guarantee and indemnity.

In October and November 2014, through Shuangfu, Ms Guan purchased nine parcels of land, which comprised the Kensington Project. Ms Guan was Shuangfu’s sole shareholder. The purchases took place in steps, as follows:

Ms Guan’s plan was to develop the land Shuangfu (and Shuangxing) had purchased into a “big development” of a “mixed residential and commercial” kind. I reject any suggestion in Ms Guan’s evidence to the contrary (see also, para B of the Recitals of the loan agreement).

Whilst Ms Guan was reluctant when asked about the price Shuangfu paid for the Kensington Project, but ultimately said that “…every single lot costed a few millions, a few million dollars per lot”. Ms Guan said she had loaned Shuangfu $12 million of her own money to purchase the Kensington Project, which confirms that her stated disinterest in the affairs of the development in evidence as unbelievable.

As mentioned earlier, Shuangxing purchased the Auburn properties comprised under the Auburn Project (which settled around June 2014).

Both Ms Guan and Mr Liang expected to be paid out from the Kensington Project for the work that they were doing. The fact that Ms Guan was paid out of Shuangfu and the fact that Mr Liang expected to be paid (as Ms Guan confirmed in her oral evidence), confirms that each were expecting to receive some fees for their past, and by inference, future involvement in the development of the Kensington Project. This is consistent with Mr Lui’s evidence, namely, that Ms Guan and Mr Liang wanted to ensure their continued involvement in the development of the Kensington Project, so that they could receive management and other fees.

Between 2013-2014, Mr Lui contacted people he knew who could potentially partner with Ms Guan to conduct the Kensington Project.

On or around 18 October 2013, he introduced Kerry Properties to Mr Liang. From that introduction, Mr Liang met with Mr Qian, Chief Executive Officer of Kerry Properties in Hong Kong. Kerry Properties ultimately withdrew interest from the Kensington Project. Photographs in evidence place Mr Liang and Mr Lui together with potential investors in the Kensington Project.

Ms Guan’s evidence supported Mr Lui’s in this regard. She confirmed in cross-examination that she had received, either on her own or with someone else, developers at the Kensington office prior to the liquidation. Ms Guan identified the office in the photographs she was shown, which photographs had been taken by Mr Lui. Whilst she later gave evidence that she basically did not know what was going on with the Kensington Project, for reasons given earlier that evidence should be rejected. In any event, I accept the submission of counsel for Mr Lui that nothing that she said affected the veracity of Mr Lui’s evidence about the performance of his obligations under the agreement (set out below).

During the second half of 2014, Ms Guan became dissatisfied with the arrangements with A Capital, namely, the interest her companies had to pay A Capital under the loan agreement (see above under the heading “The loan agreement with A Capital”), which, it appeared, she could not pay.

It also appears that her dissatisfaction or inability to pay led her to make a deal with Landream in the latter half of 2014 (around September 2014).

In an ASIC Form 507 titled “Report as to Affairs” signed by Ms Guan in her capacity as director of Shuangfu on 31 December 2014, a hand written notation appears in the column headed “Short particulars of Title”:

It is unclear whether Ms Guan told A Capital about this deal or whether A Capital found out about it from other sources. Given the terms of the loan agreement that secured A Capital’s loans and given what happened next in time, it may be inferred that Ms Guan did not tell them.

Returning briefly to the ASIC Form 507, the following observations may be made as to details recorded by Ms Guan on that form:

I find that, on the balance of probabilities, the reimbursements were for upfront costs paid by Ms Guan to commence the project, which would appear to be the “$12 million” of her money that she said she invested into the project. She was to receive around only $2 million from the Landream deal, the granting of an option to buy back into the Kensington Project was the only way she could benefit from her $10 million investment. It may also be noted that an amount of $12 million, was referred to as a debt owed to Ms Guan as a creditor of Shuangfu in the second creditor’s meeting. That same debt was ultimately absorbed by the ATO (see below under the heading “Meetings of the Creditors to Shuangfu”.

It may also be noted, that on the material before the Court, a purchase price of “$52 million” was the highest figure associated with the sale of the land (excluding reimbursement fees).

On 4 November 2014, Mr Liang received a letter from Anson City outlining an offer to purchase the Kensington land for $36 million. Ms Guan appeared reluctant to acknowledge this document during cross-examination, notwithstanding the fact it was annexed to her affidavit affirmed 20 April 2016.

The letter of offer demonstrates, there was no offer of any future involvement by Ms Guan (or Mr Liang) in the project (which meant, no management fees), no option to buy back into it and no offer to reimburse Ms Guan for her investments. The import of Ms Guan’s evidence, in this respect, was that Mr Liang had told her that someone had made an offer for the land after November 2014 but that she did not know that “Mr Bai” (being the principal behind Anson City) was involved until after the “completion of the transaction”. Further, Ms Guan gave evidence that she was not aware of the amount of the offer at that time. Part of Ms Guan’s evidence, in that respect, is extracted below:

It would appear that no one seriously intended to act on the offer dated 4 November 2014 because, as Ms Guan said in cross-examination, she had “already sold” the project for over $50 million (probably $54 million). Counsel for Mr Lui submitted, by the option / sales contract the Kensington Project was sold as a “project”, whereas Anson City only wanted to pay for the land. I accept that submission. Ms Guan’s evidence, in that respect, is extracted below:

As to the same letter, the defendants relied upon the fact that the letter of offer was addressed to Mr Liang and not Mr Lui. It was contended that the same letter demonstrates that Mr Liang introduced Mr Pak to the Kensington land. Additionally, as the letter was signed by Mr Hu, it was submitted that Mr Hu, therefore, speaks for Mr Pak.

As I will find, it is not strictly necessary to make a finding as to this issue given my conclusion as to the construction of the agreement. However, for completeness, I will deal with the factual issue raised by the defendants.

There are a number of factual difficulties with those contentions. First, there is nothing on the face of the letter of offer dated 4 November 2014 which suggests that Mr Liang introduced Anson City to the Kensington Project. It may be noted that a similar letter of offer was addressed to the then relevant real estate agent on 4 March 2015 (see the letter of offer dated 4 March 2015, which was addressed to Jones Lang LaSalle).

Secondly, Mr Lui was not the real estate agent for the Kensington Project. Hence it would have made little sense for a letter of offer to be addressed to him.

Thirdly, and of greater significance, the offer was not communicated to Ms Guan at the time it was made because, as discussed above, Shuangfu had already entered into an arrangement with Landream pursuant to the option / sales contract dated 22 September 2014. Mr Lui was correct to submit that, in the circumstances, the letter of offer dated 4 November 2014 was not seen as a proposition that would be seriously entertained having regard to the value of the Landream proposal vis-à-vis the option / sales contract. It may be also noted, in that respect, that proposal concerned the acquisition of a “project”, whereas, Anson City only wanted to pay for the land. As mentioned above, the letter of offer dated 4 November 2014 did not offer any future involvement by Ms Guan in the project, thereby resulting in no management fee or buy back option.

It follows that the letter of offer dated 4 November 2014 does not sustain the proposition that Mr Liang introduced Mr Pak to the Kensington land in such way as to negative the proposition advanced by Mr Lui that he had engaged Mr Chan, after entering into the agreement, in various ways associated with the expression of interest process for the Kensington land.

The events immediately following the contract with Landream are unclear (noting, in this respect, that option / sales contract, as earlier mentioned, was not before the Court). Ultimately, A Capital “did not agree” with the proposed Landream arrangements. The most likely scenario was that A Capital was not told about the Landream deal or that it did not want to be deprived of its share in the returns of the Kensington Project. In any event, on or about 20 November 2014, A Capital appointed receivers to the Kensington Project.

That same month, Shuangfu was placed under external administration.

On 20 November 2014, the following appointments occurred:

On 2 December 2014, the first meeting of the creditors of Shuangfu was held at the offices of Jones Partners Insolvency & Business Recovery (“Jones Partners”). The purpose of the first meeting was to, inter alia, determine whether to appoint a committee of creditors and confirm the appointment of an administrator. The creditors continued to meet throughout December 2014 and into 2015.

On 23 December 2014, a second meeting of the creditors of Shuangfu was held at Jones Partners. The following occurred:

On 18 February 2015, a DOCA was proposed by Landream. The DOCA proposal required that A Capital consent to sell the Kensington land for a total amount of $36.35 million and agree to discharge their registered mortgage for $35 million. This would leave an amount of $1.35 million remaining to meet the costs of the voluntary administration and deed administration and to pay a partial dividend to employees and ordinary unsecured creditors.

On 2 March 2015, a third meeting of the creditors of Shuangfu was held at Jones Partners. At that meeting, a resolution was put the creditors that the company execute the DOCA proposed by Landream. As there was no majority, the motion was declared lost. A further resolution was put to the meeting: “That the company be wound up”. No creditor voted against that resolution, it was resolved to put the company into liquidation. By a further and separate motion, Mr Gleeson was appointed as liquidator.

In or around November 2014, Ms Guan provided the vehicle to Mr Lui. Having regard to my earlier finding, I accept the evidence of Mr Lui concerning the vehicle, over that of Ms Guan, as extracted below. I also accept the submission of counsel for Mr Lui that his evidence accords with common experience that at some stage in November 2014 Mr Lui was given the vehicle as he described in his evidence. That evidence is extracted below:

In his affidavit of 8 December 2015, Mr Lui deposed that Ms Guan provided him with a “Letter of Appointment”, with respect to the vehicle, in or around the first week of February. The letter was undated and was executed by Ms Guan as “shareholder and Director of Sun Link Group Pty Ltd and also the owner of a Rolls Royce Motorcar”. By that letter, Mr Lui was appointed “to take care” of the vehicle (in accordance with the terms set out in the letter).

The vehicle remained in the possession of Mr Lui up until its repossession (see below).

In December 2014, various conversations took place between Mr Lui and Ms Guan:

It may be noted, much of Mr Lui’s cross-examination was devoted to debate with the witness about as to whether or not it was possible for Shuangfu to recover from external administration and whether the chances of such a recovery undermined Mr Lui’s credit. This proposition put out of account that was Ms Guan who sought Mr Lui’s assistance. Her entreaties brought with them, it may be inferred, her expectation of regaining control over the Kensington Project, that is a matter for Ms Guan. Shuangfu’s administration and the events in December 2014 to January 2015 provide the context, within which the agreement came into being.

Following the above meeting with Ms Guan in December 2014, Mr Lui met with Mr Chen. Mr Chen confirmed the security held over the Kensington and Auburn properties for a “$42 million loan to Ms Guan or her companies”. He advised, inter alia, that Ms Guan had defaulted in interest payments. He confirmed that Jones Lang LaSalle was appointed as “the selling agent”.

Mr Lui continued to have meetings with Mr Chen, so as to seek to reconcile him with Ms Guan. Mr Lui’s evidence about his work, in this respect, withstood attack under cross-examination. During cross-examination, Mr Lui gave evidence as to further conversations with Mr Chen that were not included in his affidavit evidence in cross-examination:

On 31 December 2014, as earlier mentioned, Ms Guan in her capacity as director of Shuangfu signed the ASIC Form 507.

In early January 2015, Ms Guan was barred from attending the offices of Jones Lang LaSalle.

By January 2015, the vehicle was something that Mr Lui wanted and had included in the agreement.

Mr Lui and Ms Guan signed the agreement on 18 January 2015.

The factual question is whether Ms Guan signed agreement both on behalf of herself and Sun Link.

The circumstances in which the agreement was signed were set out in the affidavit of Mr Lui affirmed 8 December 2015 at paras 68-75. I accept that evidence and it is extracted below:

Shortly stated, Mr Lui handed a typed document to Ms Guan. She said she was happy with the terms but annotated it (see para 71 of Mr Lui’s affidavit, extracted above). She did not write anything else the document. There was only one original, a copy of which was given to Ms Guan. She never complained that the document she had been given was not the document she had signed.

As at that date, in summary of the above factual findings, the following circumstances, inter alia, may also be noted:

At the time of entering the agreement, Ms Guan clearly thought that she had the authority to sign the agreement and to promise Sun Link’s property to Mr Lui. Sun Link is not mentioned in the agreement but the vehicle, its property, is.

An issue arose as to whether Sun Link was bound by the terms of cl 4 of the agreement. That issue arose because it was common ground that the vehicle referred to in cl 4 was owned by Sun Link and Sun Link is not mentioned in the agreement.

The vehicle was repossessed by its financier, because as counsel for the defendants admitted, "my side did not upkeep the mortgage on the car”. It was sold and $24,434.87 in surplus funds were paid into the Supreme Court of Victoria. Mr Lui sought damages in lieu of specific performance of the contract. Given that the vehicle was sold for $200,000, that should be taken as the its market value for the purposes of the order for damages.

The relevant background to the issue is as follows:

The execution of the agreement by Ms Guan, notwithstanding that she purported to act with the authority of Sun Link and thereby sought to execute the agreement on its behalf, did not have the authority to bind Sun Link. The evidence before the Court, including evidence led by counsel for Mr Lui (when the question was otherwise in doubt), revealed that Mr Liang was also a director of Sun Link, together with Ms Guan, at 26 June 2014 through to 23 February 2015. Pursuant to s 127 of the Corporations Act, where a company has more than one director, a single director does not have authority to bind it. Thus, in the absence of some representation made by Sun Link, Ms Guan has no ostensible authority to bind it (see Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 205). The evidence before the Court does not support a conclusion of agency. It follows that at the time of the agreement, in order to bind Sun Link, in particular with respect to cl 4, the agreement would have required execution by two directors, namely, both Ms Guan and Mr Liang: s 127 of the Corporations Act.

I find that Ms Guan signed the agreement in a strictly personal capacity. She did not bind Sun Link.

On 24 January 2015, Mr Lui was married. In an effort to promote reconciliation between Ms Guan and Mr Chen, both were invited and seated at the same table at the wedding. Mr Lui considered his efforts achieved “successful restoration of the relations” and said, as a result, “[Mr Chen] gave her more time for me to participate in the EOI process” (namely, the expression of interest process conducted by Jones Lang LaSalle).

On 29 January 2015, Jones Lang LaSalle publicly released information about the expression of interest process. If there was any shortfall, pursuant to the terms of a deed of guarantee and indemnity dated 26 June 2014, Ms Guan would have been personally liable. By that deed, Ms Guan had guaranteed Shuangfu’s obligations. It was around this time that she widely canvassed persons to participate in the bidding process or encourage others to do so.

The nature of the expression of interest process is important, because it fatally undermines the defendants’ case in relation to the Act (which I will return to later in this judgment).

The Information Memorandum was prepared by, inter alia, Jones Lang LaSalle in relation to the Kensington land. The covering page describes the process: “Mortgagee Sale / By expressions of interest”. That “expression of interest” process was to close at 3pm on 4 March 2015. The Information Memorandum described the process thus:

The Information Memorandum also included the following disclaimer:

The process involved two stages. The first was an expression of interest process, which involved the lodgement of proposals for the Kensington Development. The second stage concerned review and negotiation.

There was no evidence that Mr Lui negotiated with the vendor (or the agents for mortgagee in possession) on behalf of any of the bidders. Further, Mr Lui had no authority to negotiate on behalf of the vendor as Jones Lang LaSalle had the exclusive agency agreement (see “Commercial/Industrial Sales Inspection Report and Exclusive Agency Agreement and Continuing Agency” dated 19 January 2015 (also referred to as “the REINSW Exclusive Selling Agency Agreement”). On the evidence he did not do so.

The parties to that agreement were as follows:

The property listed as the property for sale was the Kensington land. For completeness, Baker & McKenzie were listed as the principal’s solicitor (with Mr Walter’s email address provided).

Thus, I find, on the balance of probabilities, that Ms Guan had no authority to authorise Mr Lui to negotiate on behalf either of herself or Shuangfu with respect to the sale of the Kensington Project; a fact which she admitted throughout her cross-examination. Mr Lui was not authorised to, nor did he, negotiate on behalf of any other party to that agreement. Further, Ms Guan accepted on a number of occasions during the cross-examination that she had no authority to deal with the Kensington Project after receivers were appointed or to even ask Mr Lui to make any offers, accept any offers or to negotiate on her behalf or anyone else’s for the Kensington Project. These factual findings serve to completely undermine Ms Guan’s claims concerning the Act and the argument that Mr Lui was to “introduce” a buyer.

As I will later find, the agreement was aimed at the expression of interest process. No doubt Ms Guan’s purpose in entering into the agreement was to ensure that as many proposals as possible were lodged as part of the process. She encouraged that outcome, no doubt, because she would be personally liable for any shortfall not covered by the sale of the Kensington Project (pursuant to the terms of a deed of guarantee and indemnity dated 26 June 2014).

I will return to the construction of the agreement but, on its face, the terms do not expressly provide for negotiations with the vendor; nor does the agreement require any action by Mr Lui in relation to the bidders once the expression of interest process was complete.

I accept the submission of Mr Lui, that Mr Lui was given an incentive, by the reward set out in the agreement, under the agreement to take steps which Ms Guan considered would ensure the expression of interest process succeeded.

Between January to March 2015, pursuant to his obligations under the agreement, Mr Lui contacted various investors and introduced others to the Kensington Project.

There is evidence from Mr Lui that was uncontradicted and undiminished in cross examination, which I accept, that he contacted his network both before and then after 18 January 2015:

This was set out in the affidavit of Mr Lui affirmed 8 December 2015, which I extract below:

Counsel for the defendants made a submission that Mr Lui’s evidence at para 87, namely, that Mr Chan told Mr Pak “what [Mr Lui] said and he is going to increase his bid”, was, given the evidentiary rulings by the Court, not evidence as to Mr Pak’s state of mind. However, that consideration is immaterial to the question of performance, having regard to my conclusion as to the construction of the agreement. The operative question is whether Mr Lui had endeavoured to influence Mr Pak in a manner consistent with the agreement. Upon the construction of the agreement I will later develop that question must be answered in the affirmative.

In summary, Mr Lui deposed and I find that he performed his obligations by:

It may be noted that the only mention of Mr Zhao was in the evidence of Mr Lui. No further details, save for the reference to a site visit was provided. It also appears he did not participate in the expression of interest process.

During cross-examination, Mr Lui also gave evidence that “there’s a few more people who… I talk on the side. I did not put in my affidavits”. He gave evidence that Mr Xia Gung, who was pictured in a photograph annexed to the affidavit of Mr Lui sworn 27 June 2016, was a “potential investor”. That same affidavit included photographs of several people identified as “potential buyer[s]” or “potential purchaser[s]”. These included:

Counsel for the defendants contended that the evidence of Mr Lui as to Mr Chan and Mr Pak is not credible due to inconsistencies between his evidence by affidavit and his evidence under cross-examination. As to the introduction of the Kensington Project to Mr Chan and/or Mr Pak, Mr Lui gave the following evidence at the hearing:

The evidence of Mr Lui, with respect to the introduction of Mr Chan to the Kensington Project, albeit slightly confused at times, does not appear to be inconsistent with the evidence earlier deposed in his affidavit. It should also be noted that the conversations in Mr Lui’s affidavit are recorded in English but were originally spoken in Mandarin; Mr Lui said, and I accept, that he translated them to the best of his ability.

As to his “job” under the agreement, Mr Lui gave the following evidence:

No further evidence was given with respect to Mr Zhang, Mr Ho or Mr Gung.

It may also be noted that Mr Lui gave evidence that, during the expression of interest process, some of his contacts asked about $60 million as a price but he advised them “it’s too high”. The land did not have development approval, a bid of $60 million was too high “because at the moment there's some shops there and not worth that much”. He gave evidence that the land with development approval “it will [be] worth a lot more than what it is”.

During cross-examination, counsel for the defendant attempted to characterise the activity of Mr Lui as that of a real estate agent. It was put to him that he was “in a sense, a free agent working with Jones Lang LaSalle” or “the middle man”: “[y]ou were going out there in your network with the information memorandum, talking to people who might be interested buyers, giving them a copy of the information memorandum, talking, answering their questions, talking price, what it's probably worth with them, and then having got that information, you then went to Jones Lang LaSalle”. Mr Lui rejected both characterisations of his conduct. I do not consider that his evidence was undermined by cross-examination or that his approach to this evidence should result in an adverse conclusion as to his conduct.

Counsel for the defendants then asked a further series of questions as to the conduct of Mr Lui:

Mr Lui did not agree with any of the propositions put to him, save for admitting that he helped Fairway with its expression of interest application, which, as earlier mentioned, was a concession given candidly and was to his credit.

From 23 January 2015, representatives of Jones Lang LaSalle were in contact with representatives of Anson City. A summary of the email correspondence throughout the first round of the expression of interest process, in chronological order, follows:

Mr Lui was not included or mentioned in any of the aforementioned email correspondence.

It may be noted, in the first marketing update prepared by Jones Lang LaSalle for McGrathNicol, dated 4 February 2015, there was a summary as to the first week of bidding. In that summary it was confirmed that Jones Lang LaSalle received more than 130 enquires as well as three requests for a copy of the contract of sale, including, a request from “Mr Kevin Lai” on behalf of Elite 100 (which appears to be a typographical error and should properly read “Mr Kevin Lui”). In the Defendants’ Supplementary Submissions, reference was made to this inclusion within the marketing update. Counsel for the defendants’ submitted that this inclusion indicates “from February 2015 onwards, Mr Lui, acting with his Elite 100 hat on, tried to get entities to bid for the Kensington land because that is the only reason one would ask for such a document”. Notwithstanding that contention, it is not inconsistent with the evidence of Mr Lui, whom said he had contact with Jones Lang LaSalle but only met at the offices of Jones Lang LaSalle on one occasion. Further, that submission was advanced after the close of evidence and was not put to Mr Lui.

The defendants also contended, in that respect, that when that document is read in conjunction with Jones Lang LaSalle’s letter date 8 April 2015 (which was addressed to “Kevin Lui and Elite 100”, which I will return to below), gives the Court a firm documentary basis to tie Elite100 to Mr Lui.

On 4 March 2015, as earlier mentioned, the first round of the expression of interest process closed. The expression of interest process generated 22 bids, which were set out in tabular form in Ex 6, together with details as to, inter alia, proposed deposit, settlement and proposed conditions. A summary of the companies and their respective bid/s, ordered from highest to lowest, follows:

As earlier mentioned, of those bids, Mr Lui gave evidence that he introduced the Kensington Project to both Fairway and Anson City. As will set out below, the two highest bids did not proceed as the Fairway bid of $45 million was conditional upon development approval and the Polaris bid of $40 million was conditional upon a 12 month settlement. Anson City was ultimately the successful bidder.

Following the closure of the first round of the expression of interest process, the following email correspondence occurred between representatives of McGrathNicol (as earlier mentioned, the appointed agents for mortgagee in possession and controllers of Shuangfu), Jones Lang LaSalle and Anson City:

Mr Lui was, again, not included or mentioned in any of the aforementioned email correspondence. However, as earlier mentioned, on the evidence before the Court, it may be accepted that Mr Lui met with and spoke to Mr Chan, a personal friend to Mr Lui and a business advisor to Mr Pak, with respect to the expression of interest process and the submission of a bid. By way of further assistance, Mr Lui also provided Mr Chan with the Information Memorandum.

Mr Lui’s assistance, as I will ultimately find, was limited to the period from 18 January 2015 through to the expiry of the expression of interest process. Mr Lui assisted Ms Guan by encouraging potential investors and/or bidders to participate in the process by using his reputation and prestige. His role did not extend to any later stage of the conveyancing process, namely, the preparation of the contract, exchange or settlement. Thus, his absence from any correspondence with respect to the Kensington land does not undermine his contentions that there was performance under the agreement, which I will return to below.

By March 2015, Shuangfu entered into liquidation.

By a letter dated 8 April 2015, Mr Lui was notified by Mr Macree of Jones Lang LaSalle that the contract for the Kensington land “exchanged on 25 March 2015”. That letter is short and its contents included in full below:

Anson City was ultimately successful with a bid of $38 million for the Kensington land (which bid was submitted by Mr Hu of Anson City on 4 March 2015).

On 22 April 2015, the Kensington land was transferred by A Capital to Anson City for $38,389,000.

Following the confirmation of the exchange of the contract, Mr Lui discussed “receiving my fees and the Rolls Royce” in accordance with the agreement. Ms Guan promised that she would give Mr Lui his due under the agreement. However, she failed to do so. Mr Lui deposed: “Ms Guan never paid me any money and did not take action to transfer the Rolls Royce to me”.

On 16 April 2015, a letter of demand was sent from Mr Martin Gu of Advance Lawyers Group, the solicitor for Mr Lui, and addressed to Sun Link, Ms Guan and Mr Liang (“the letter of demand”).

The letter of demand concerned “performance under Co-operative Agreement dated 18/01/2015 and claim of defamation”. As to performance, Mr Gu stipulated the following:

On 27 April 2015, Mr Edwin Kwan of Pacific Legal, the solicitors for Sun Link and “its officers” (namely, Ms Guan and Mr Liang), wrote a letter in reply to the letter of demand (and communications received in April). By that reply, Pacific Legal contended, inter alia:

By that same letter, Pacific Legal warned that legal proceedings to recover the vehicle would be commenced “forthwith” if the vehicle was not returned by 30 April 2015.

In 2016, the vehicle was repossessed by its financier, because as counsel for the defendants admitted, “my side did not upkeep the mortgage on the car”.

On 13 May 2016, as earlier mentioned, the vehicle was sold by its mortgagee for $200,000. The remainder of the proceeds from the sale of that vehicle, namely, the surplus funds of $24,434.87 were placed into the Supreme Court of Victoria.

In Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61, Heydon JA set out succinctly the conventional and accepted principles of the law of contract:

Hence, in determining the circumstances surrounding the formation of the agreement, the matrix of facts, it is the objective intent that is paramount: John R Keith Pty Limited v Multiplex Constructions (NSW) Pty Limited [2002] NSWSC 43 at [228].

A fundamental question falling for consideration is whether the conduct of the parties, viewed in the light of surrounding circumstances, shows or is indicative of an agreement having come into existence: Rural Insurance (Aust) Pty Limited v Reinsurance Australia Corporation Limited (2002) 41 ACSR 30; [2002] NSWSC 156 at [35].

I also adopt the principles as set out in Cox Purtell Staffing Services Pty Ltd v Our Energy Group Pty Ltd [2017] NSWSC 1122 at [51]-[57]:

Mr Lui pleaded that he entered into an agreement with Ms Guan for and on behalf of herself and Sun Link. It was pleaded the agreement was partly oral and partly in writing.

As to the oral component, Mr Lui pleaded that it comprised of conversations between Mr Lui and Ms Guan between September 2014 and January 2015, although attention was particularly directed to the conversation of 30 December 2014 recorded in para 63 of Mr Lui’s affidavit affirmed 8 December 2015.

The agreement in writing was the agreement. This was admitted by Ms Guan, but an oral agreement was not. There is substance in the defendants’ submissions, in this regard, that, whilst the oral conversations between Mr Lui and Ms Guan between September 2014 and January 2015, and in particular the para 63 conversation, featured prominently in the evidence, and further, whilst the para 63 conversation was plainly the precursor to the parties entering into a written agreement, I do not consider counsel for Mr Lui maintained in the proceedings (except for the bare pleadings and a small component of closing submissions) that the contract between the parties had oral terms. Nor was there any clarification as to what precisely would constitute those oral terms out of the para 63 conversation. I do not, therefore, find there was a contract made orally between Mr Lui and Ms Guan.

When considered in the light of my earlier finding, I find, therefore, that a contract was made between Mr Lui and Ms Guan in terms which, when translated into English, were contained in Ex 1.

In construing a written contract, the Court is to look to its objective background, including its genesis and aim, and the common assumptions of the parties: DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 429; [1978] HCA 12; Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70 at [11].

In Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7, the High Court observed that (at [35]):

The High Court also reviewed the principles of construction in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 (“Mount Bruce Mining”) at [46]–[52], [59]. See also Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165 at [93], per Bathurst CJ (with whom McColl and Macfarlan JJA agreed) and Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd (2013) 29 BCL 329; [2012] NSWCA 184 at [52], per Bathurst CJ (with whom Macfarlan and Meagher JJA agreed).

In Codelfa at 352, Mason J said:

In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at 179, the High Court observed:

In Mount Bruce Mining at [46]-[51], French CJ, Nettle and Gordon JJ observed:

There Honours also noted, at [52], that those observations were “not intended to state any departure from the law as set out in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales and Electricity Generation Corporation v Woodside Energy Ltd”. In Victoria v Tatts Group Ltd (2016) 328 ALR 564; [2016] HCA 5, the same principles were cited at [51], by the High Court, which confirmed the construction adopted in that matter of the relevant agreement was “supported by reference to the text, context and purpose” of that agreement.

In Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370 (“Zhang”) at [79]-[80], Leeming JA said:

In addition to the above stated principles, counsel for the defendants produced extensive submissions vis-à-vis principles of construction, and sought to rely upon several particular principles of construction, namely:

I will briefly turn to the authorities relied upon, in that respect, by the defendants.

Reference was made to the parole evidence rule. In WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd (2016) 341 ALR 467; [2016] NSWCA 297 at [55]-[59], Barrett AJA (with whom McColl JA and Sackville AJA agreed), as to pre-contractual dealings, stated:

Counsel for the defendants submitted that where there is doubt about the meaning of a contract, the words will be construed against the party who puts them forward: Burton v English (1883) 12 QBD 218 (at 220); Halford v Price (1960) 105 CLR 23; [1960] ALR 560 (at 34). See also Zhang at [34]-[35] and [136]-[139] (per Leeming JA). This principle needs to be understood in the light of the foregoing statement of principles for the construction of commercial contracts.

In Martinis v Raine & Horne Hornsby WPNLServ. P/L (Commercial) [2005] NSWCTTT 69 at [73], Member B Brady held:

This principle would only be relevant if the Court was to find that the agreement was a real estate agency agreement. However, as I will ultimately find that the agreement is not a real estate agency agreement, it is not relevant to the issue of construction.

In SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 at [66]-[69], Ward JA (with whom Macfarlan JA and Sackar J agreed) explained how the rule operated and confirmed that it is well established:

An established exception to the rule is set out in Pao On v Lau Yiu Long [1980] AC 614 (“the Pao On Exception”). That exception has three elements:

This rule will be relevant to the Court’s assessment of performance by Mr Lui, but I find that the aforementioned exception applied in this case. It should also be added that counsel for Mr Lui was correct to submit this issue was not pleaded in the defendants’ defence.

In Eurico SpA v Philipp Brothers (the Epaphus) [1987] 2 Lloyd's Rep 215 at 218, Sir John Donaldson MR said:

There is a presumption that a contract does not require performance of the impossible, albeit this may be rebutted with clear words.

Turning to the matter before the Court, in this respect, the defendants contended that the following two scenarios were relevantly “impossible”:

Counsel for the defendants invites the Court to find that “the only conceivable thing which could have happened, after the signing of the Co-operative Agreement, was the sale of the Kensington land”. That means, in was submitted, that the agreement “was always a contract to find a buyer of land”.

Counsel for Mr Lui contended that the defendants’ submissions, in this respect, “are without any factual or other basis”. Further, it was submitted, “it was never pleaded and it cannot now be raised. In any event, the Court would find that far from being impossible to perform, the Cooperative Agreement was able to be performed and was indeed performed”. I accept those submissions.

In Australian Broadcasting Commission v Australasian Performing Right Associated Ltd (1973) 129 CLR 99; [1973] HCA 36 at 109, Gibbs J (in dissent) said:

In Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449 at 455, Isaacs and Rich JJ stated:

In Zhang, Leeming JA said (at [89]):

In relation to one clause taking effect subject to another seemingly inconsistent clause, in Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corp Pty Ltd (No 1) (1993) 178 CLR 379; [1993] HCA 40 at 386-387, Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ said:

In summary, a clause within an agreement takes its meaning from the context of the whole document in which it is found. These authorities are relevant to the issue of construction although must be understood in the light of the aforementioned discussion of general principles of construction, set out above. Their approach was emphasised by the defendants but did not feature prominently in their approach to construction.

In Rivat Pty Ltd v B and N Elomar Engineering Pty Ltd (2007) NSW Conv R 56-186; [2007] NSWSC 638 at [46], Hamilton J stated:

In Chapmans Ltd v Australian Stock Exchange Ltd (1996) 67 FCR 402 at 411, Lockhart and Hill JJ said:

In summary, by this principle, the Court should give effect to each part of a contract and presume no parts are redundant. This is because each part is taken to have been deliberately inserted having regard to the other parts. So it is the case with the contract in this case.

In J Kitchen & Sons Pty Ltd v Stewart's Cash & Carry Stores (1942) 66 CLR 116; [1942] ALR 229 at 124-125, Latham CJ and McTiernan J said:

In Australia Casualty Co Ltd v Federico (1986) 160 CLR 513; [1986] HCA 32 at 520, Gibbs CJ said:

By this principle, it was submitted, that the reasonableness of the result of any particular construction is relevant consideration in choosing between rival constructions, albeit there is no power to remake or amend a contract (to a position not open on the language) to avoid a result which is considered inconvenient or unjust. I have applied this principle in the construction of the agreement.

In Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 at [61], Lord Hoffman (in dissent) said:

In Shevill v Builders Licensing Board (1982) 149 CLR 620; [1982] HCA 47 at 628, Gibbs CJ (with whom Murphy, Brennan and Wilson JJ agreed) said:

In Waterways Authority of New South Wales v Coal and Allied (Operations) Pty Limited (2008) Aust Contract R 90-278; [2007] NSWCA 276 at [216], McColl JA (in a separate judgment agreeing with Beazley JA's judgment) stated:

The “clear words principle” provides that where a suggested construction is unjust, a court would not adopt it in the absence of clear words. Again, I have applied this principle in the construction of the agreement.

As to the formation of the agreement, at the outset, the defendants submitted that, notwithstanding the pleading of Mr Lui, the hearing proceeded upon the basis that the agreement signed on 18 January 2015 was the contract. It was contended that by counsel for Mr Lui’s opening submission, Mr Lui abandoned any argument as to “the oral terms of the contract”. As such, it was submitted, that counsel for the defendant did not cross-examine Mr Lui with respect to any “oral terms”. Counsel for the defendants submitted that, in light of the opening and closing submissions of counsel for Mr Lui, the Court should maintain that the agreement is a written contract.

Turning to any recording of an “oral agreement”, if there was one, immediately prior to the signing of the agreement, counsel for the defendant accepted this would be encapsulated by para 63 the affidavit of Mr Lui and para 28 of Ms Guan’s affidavit (due to earlier findings as to credit, I note that the account of Mr Lui is to be preferred). Further, during closing submissions, counsel for the defendant contended that the Court should ignore both paragraphs, for the purpose of construction, “because of the parole evidence rule and just read the contract for itself”. In the alternative, if the Court were to find that the agreement was partly oral, it was contended: “then all the court has to do is scan 63 and 28 and look for contractual language and, in my respectful submission, the only contractual language relates to ‘sell the damn land and I will pay you’”.

Turning to the issue of construction, the defendants divided their submissions into two parts. First, submissions as to the relevant objective circumstances surrounding the agreement. Second, in light of the applicable principles of law and the relevant objective circumstances, the defendants advanced submissions as to the appropriate interpretation of the agreement.

Mr Lui’s submissions will be addressed in the course of considering the contentions advanced by the defendants.

This section of the judgment will turn to summarise the submissions of the defendants with respect to the relevance of the circumstances surrounding the agreement. This summary will refer to aspects of the factual background earlier set out, with minimal repetition.

Counsel for the defendants contended:

In the Defendants’ Closing Submissions, counsel for the defendants sets out in detail, the objective circumstances on which it relies (at pages 9-17), which were substantially derived from the ASIC and business related documents. In summary, without repetition of the earlier summary of those facts as part of the factual background, the defendants advanced the following submissions in light of facts surrounding the signing of the agreement:

The defendants contended that the relevant surrounding circumstances at the time the agreement was signed were as follows:

Turning specifically to the terms of the agreement, with respect to financial difficulties, namely, “current economic situation”, “financial problems” and “current financial difficulties” (see cll 1 and 3 of the agreement), the defendants relied upon the surrounding objective circumstances, at the time of the agreement, in order to understand those terms. The defendants contended that the following findings of fact are available, in that respect:

In light of those contentions, the defendants submitted:

As to Mr Lui’s knowledge of the objective circumstances, counsel for the defendants contended that Mr Lui was aware of the following:

Essentially, it was contended, “all of the critical elements known to the first meeting of creditors on 2 December 2014 were also known to both parties as at 18 January 2015”.

As to the objective facts after 18 January 2015, which were heavily drawn from material in Ex 17 and Ex 18 (namely, the ASIC material and emails from Jones Lang LaSalle), it was contended: “highlight the intelligence and ruthlessness of Owen Chen and confirm the First Defendant's limited options as at 18 January 2015. They also confirm that the Plaintiff had zero influence on Owen Chen”. It was also suggested that “no one would have rescued Shuangfu Development Pty Ltd because it was embroiled in litigation”.

The following observations should be made at the outset as to the defendants submissions as to objective circumstances:

There is no evidence that Mr Lui knew of the contents of the ASIC documents or the emails of Jones Lang LaSalle, relied upon by the defendants, and their contents were not put to Mr Lui. There was also no evidence that Mr Lui knew of the matters referred to in the defendants’ submissions as contended by the defendants, with respect to the same, as extracted above at [287]. Those propositions were not put to him in cross-examination.

As to the particular “objective circumstances” listed above at [289], the following observations should be made:

I agree with counsel for Mr Lui that what Mr Lui “knew” at the time of the making of the agreement is that which is primarily contained in Mr Lui’s affidavit. Mr Lui was significantly informed by the context of the para 63 conversation. That conversation is available, in my view, as evidence of the commercial purpose of the agreement. That commercial purpose is depicted by Ms Guan stating that she was in financial trouble, she required an investor “to join with [her] to pay out Owen or buy the project”. She sought Mr Lui engage with his friends “in the industry” to participate in an “expression of interests bidding” in return for reward or payment.

The availability of the para 63 conversation for this purpose derives from the immediacy of the conversation to the making of the agreement, the intention to make the agreement becomes clear from the conversation, the conversation finds articulation in the words of the agreement (although the agreement contains some ambiguity as I will discuss below) and because of the nature of the expression of interest process the parties were involved in, namely, a process by which the parties would make varying offers, as well as specifying any conditions attached to any proposed purchase of the development site in Kensington.

The defendants’ itemised particular matters, it was contended, were known to Mr Lui at the time of making the agreement (see above at [291]). They were preceded by various statements of fact. My findings of factual background were earlier set out.

As to particular matters identified by the defendants as known to Mr Lui and Ms Guan and at the time of the making of the agreement the following may be accepted:

However, as to the evidence relating to creditors and creditors’ meetings, as well as the circumstances surrounding the timetable fixed by A Capital for the sale of the Kensington land, whilst it may be inferred that Ms Guan was aware, the material before the Court does not support a conclusion that Mr Lui was aware of the same at the time of the agreement.

Turning to the terms of the agreement, the defendants undertook an incremental approach to each clause, analysing it with respect to its components as opposed to a whole.

The approach of parsing the various clauses of the agreement in this fashion contained, in my view, the very real prospect of failing to consider the agreement as a whole and understanding the meaning of the terms in context. Nonetheless, I will set out the defendants submissions in this respect and for ease of reference, the submissions will be preceded by the clause appearing in its entirety.

As to the words, “according to the detailed explanation and analysis about the project given by Party B”, the defendants submitted:

As to the words, “in order to improve the current economic situation and solve the financial problems”, the defendants submitted:

Following the above submissions, the defendants submitted that the language of cl 1, therefore, reveals the performance which Mr Lui was required to deliver: Mr Lui was required to solve Ms Guan’s financial problems, or if he could not do that, at least improve her current economic situation. However, when read in conjunction with cl 2, it was contended, that Mr Lui was “not at liberty to achieve these ends however he pleased”.

As to the words, “Party A agrees that it will work hard to assist Party B to find appropriate investment developers in and out of Australia by using his reputation and prestige in the industry”, it was submitted the clause dictated the type of solution which Mr Lui was required to provide: to “work hard” (by using his “reputation” and “prestige”) to “assist” Ms Guan to find “appropriate investment developers”.

As to an “appropriate investment developer”, the balance of the clause revealed, it was contended, that to be one whoever submits a winning sealed bid that “takes over the project”. It was contended that, absent a link between those two aspects of the clause, the phrase “and the investment developers will submit a sealed bid to the company which takes over the project” becomes a prediction, existing on its own, about what a third party will do.

Further, in light of that linkage, it was submitted that an “inappropriate” investment developer is a person who, although an “investment developer”, is unwilling or unable to submit a sealed bid to the company “which takes over the project”.

Counsel for the defendants also noted the term “investment developer” is not defined by the agreement. However, in support of their contended definition, counsel for the defendants advanced the following grammatical analysis:

Returning to the word “assist”, the defendants submitted that Mr Lui was obliged to act as a principal, independently from Ms Guan, and use his “reputation" and “prestige” (on his own initiative) to find and bring in “appropriate investment developers”. By doing this, Mr Lui would be, in that sense, “assisting” Ms Guan.

Particular emphasis was placed upon the phrase “by using his reputation and prestige”. It was contended, such a phrase indicates that the word “assist” should not be construed as meaning merely assisting Ms Guan in the way that an employee or personal assistant would.

As to the final words, “submit a sealed bid to the company which takes over the project”, the defendants submitted:

Thus, it was contended that Mr Lui was required to use his reputation and prestige to get his connections to bid.

As to the second half of the clause, the defendants submitted:

As to the definition of “successfully” (or success), the defendants’ submitted:

As to the first component of the clause, namely, with respect to the requirement of Party B to “encourage directors with voting power for the project to support the proposal of Party A”, it was submitted:

It was also contended, in this respect, that owing to the power of Mr Chen, as director of A Capital, to halt the expression of interest process and vis-à-vis his power of sale owing to a wealthy entity brought in by Mr Lui, it was Ms Guan’s job to persuade Mr Chen to do this in the event Mr Lui brought in such an entity.

In summary, as to the first three clauses:

First, as to the definition of “sealed bid” in the clause, it was submitted:

If the above definition of “a sealed bid” is accepted, therefore, Mr Lui would only be entitled to the vehicle if he found and persuaded an investment developer to submit a successful sealed bid (which bid must also improve Ms Guan’s situation, in order to be rendered “successful” under the agreement).

Counsel for the defendants contended that the activation of cl 5 required performance of cll 1-2, which required, on the defendants construction, Mr Lui by his conduct, as specified by the agreement, to “solve” and “overcome” Ms Guan’s current economic situation and financial difficulties “successfully”.

To bring in an investment developer whose sealed bid failed – is not meeting the object and purpose of the agreement. Further, counsel for the defendants referred to the nature of the bidding process – it was “sealed”: no buyer knew what the others were offering. Therefore, it was submitted, it made no sense to pay Mr Lui a considerable sum for mere participation in the process if it was not, in fact, successful as per the agreement.

Turning to the term, “tender rate”, the following submissions were made:

In support of that construction, the defendants provided the following example: If Jones Lang LaSalle brought in a very heavy bidder, and Mr Lui brought in a light weight bidder, Mr Lui would nevertheless receive a very large commission by “freeriding” on Jones Lang LaSalle. Commercially, this makes no sense. Hence, it was contended, that the contra proferentem principle should be applied.

The final words of the agreement were handwritten and were as follows: “the actual settlement price requires a separate talk”. The defendants submitted:

Without derogating from the aforementioned statement of principles, the agreement is to be construed in accordance with the natural and ordinary meaning of the words used within their object and purpose.

Notwithstanding the reference to Shuangfu being a “project company”, the agreement creates a series of personal obligations between Mr Lui and Ms Guan; it is not a contract between Mr Lui and Shuangfu.

It may be accepted that the object or purpose of the agreement was to improve Ms Guan’s economic situation and solve Ms Guan’s financial problems. However, there is nothing on the face of the agreement which supports the construction contended for by the defendants that the language of cl 1, whether read alone or in the context of the whole of the agreement should be interpreted as requiring that, in order to “deliver” or perform under the agreement, Mr Lui must actually achieve those outcomes such that performance of the agreement required him, as submitted by the defendants, to “at least improve Ms Guan’s economic situation”. His obligations, with respect to those objects or purposes, lay specifically under cll 1 to 2, respectively.

Clause 1 required Mr Lui “to seek good investment partners in or out of Australia in order to improve the current economic situation and solve the financial problems encountered by [Ms Guan]”.

Clause 2 required Mr Lui to “work hard to assist” Ms Guan to find appropriate “investment developers” and the “investment developers” will submit a "sealed bid to the company which takes over the project”.

Clause 3 required Ms Guan to “encourage directors with voting power for the project to support the proposal of [Mr Lui] which involve[d] a sealed bid” in order to overcome her financial difficulties.

I will elaborate upon the construction of each clause.

Clause 1 created an obligation to seek good “investment partners”. There is nothing in the clause or surrounding provisions which would warrant the word “seek” to have another meaning other than its ordinary natural meaning, namely, to “attempt to find” or “search for”. Whilst this clause refers to “good investment partners” and cl 2 to “appropriate investment developers”, the uniformity of obligation in each clause, namely, to seek or find, and the objectives as described above, being common to each such clause, would suggest they should bear the same meaning.

The defendants accepted that the word “investment” may mean a joint venture, but argued that the word “developer” connoted a commercial entity that developed real estate and that an investment developer is someone that invests in real estate. I do not accept that construction.

When seen in that light, the term “investment partners”, whilst not defined, should be construed as entities who would invest in the development of the development properties. This construction is consistent with the balance of the clause when read in context (as I will further discuss below), namely, that Mr Lui was to find investment developers using his “network” to take part in the expression of interest process.

Whilst the expression “investment developer” is ambiguous, that construction is also consistent with reading cll 1 and 2 together with coherency between the words investment partner and investment developers, and avoids the relatively artificial grammatical device employed by the defendants, namely, of identifying a meaning or connotation for the word “developer” (as a noun) and then treating the word “investment” as an adjective without reading the words together consistent with the surrounding context of the expression of interest process (as described below) and the para 63 conversation.

The defendants were correct to submit that the word “assist” in cl 2 was conditioned by the words “by using his reputation and prestige” in that clause and that the conditioning words meant that Mr Lui would use his standing or influence to “assist”. However, counsel for Mr Lui correctly submitted that neither cll 1 or 2 required Mr Lui to “effectively cause” any sale of the property (or sale for the development of the property) because the agreement was concerned with ensuring the expression of interest process was successful.

Clauses 1 and 2 do not employ words such as to “introduce” the purchaser or be the cause of a sale or “procure” an investment developer. Clause 2 states that Mr Lui is to “work hard to assist [Ms Guan] to find appropriate property developers”. The ordinary and natural meaning of “assist” in that context is to “help, typically by doing a share of the work”. The clause does not refer to Mr Lui introducing (as opposed to “seek” in cl 1) or “procuring” (as opposed to “assist [Ms Guan] to find [such entities to] submit a sealed bid” in cl 2). I agree with the submission of counsel for Mr Lui that the requirement imposed upon Mr Lui by cll 1 and 2 was to “assist Guan personally to allay her personal financial issues”.

That interpretation of cll 1 and 2, to the extent of any ambiguity, is entirely consistent with the para 63 conversation, including the consistency between the construction and the commercial purpose of the agreement as discussed above.

The use of the word “encourage” in cl 3, whilst directed to a different object, is consistent with that interpretation.

Clause 4 promised the vehicle to Mr Lui and represented that it is "under the name of [Ms Guan] as a free gift when a sealed bid for the project is successful”. The obligation to give Mr Lui the vehicle was triggered by there being the success of “a sealed bid for the project”. That is the only requirement. The syntax necessarily points to the success of the process as the trigger.

Clause 5 contained the undertaking (or promise) for Ms Guan to pay Mr Lui (via Mr Lui's agent) a “usual service fee” of 2% of tender rate. The correct interpretation of that clause is that the 2% ought to be calculated by reference to the final bid/tender by Anson City. The obligation in cl 5 to pay a fee of 2% of the “tender rate” is broad and should be construed as being triggered if Mr Lui performed in accordance with cll 1 and 2. Clause 5 pertains to the service provided and is not contingent on the success or otherwise of the bidding process.

Further, as to cl 5, I reject the defendants’ contentions as to the application of the principle of contra proferentem. The content of the phrase “tender rate” is tolerably clear as set out in the preceding paragraph, especially when read in the context of the language used in the agreement. The contrast with the phrase “actual settlement price” supports Mr Lui’s contention that the 2% was to be calculated by reference to the successful bid amount rather than the actual sale price. The aforementioned language lends further support to the proposition that the Act does not apply, given that remuneration was not to be calculated by reference to the actual settlement price.

Counsel for Mr Lui was correct to point to the significance of the context of the expression of interest process and the effect of receivership and administration to his construction in this respect and, more generally, as to the construction of the agreement.

The expression of interest process is described in the Information Memorandum. It was not a “fire sale” or an auction. As earlier mentioned, it was a multi-tiered process, which involved A Capital considering a series of very different proposals for the Kensington Project and deciding, in its absolute discretion, the party, to which it would sell the Kensington Project. Neither the other creditors of Shuangfu nor Mr Lui nor Ms Guan were able to make any decisions concerning the process. In fact, A Capital could have decided not to sell the Kensington Project to any of the participants.

I agree with the submission of counsel for Mr Lui, given these facts, which were known to both Mr Lui and Ms Guan at the time, it would be wholly uncommercial to construe the remuneration payable under the agreement as being contingent on Mr Lui being the “effective cause” of the sale, because, Mr Lui would have no control whatsoever over the process and because many variables other than price were involved. For example, each participant was invited to set out not only the price but also any terms or conditions of purchase and many did so. The evidence demonstrated that Anson City, the ultimate purchaser, was not the highest bidder. A company called Polaris Holdings Pty Ltd expressed interest to purchase the project for $40 million. Fairway also offered $45 million on the condition that the vendor obtained, at its own expense, development consent for a minimum of 160 apartments and retail space and $30 million if there was no development application or consent.

The defendants’ pleadings do not plead the existence of any implied term, namely, the “industry implied term” that would result in Mr Lui only getting paid if he brought in the winning bid (i.e. was the “effective cause”). Such a contention, in the absence of a pleading to that effect, cannot properly be raised in closing submissions. In any event, the defendants led no evidence that there is any such "industry" term either generally or in this context.

Further, including words requiring Mr Lui to effect the outcome, would have been easy for a person with Ms Guan's experience. The absence of those words weighs against the defendants' construction of the agreement.

The receivership/administration arrangements were also important in the construction of the agreement. As the only secured creditor, A Capital appointed receivers to the Kensington Project, the expression of interest process was not related to Shuangfu's other debts (or debtors, for example, the ATO or Ms Guan). There is no evidence that the rest of Shuangfu's debts were also Ms Guan's or could be recovered against her personally. It should be noted that Ms Guan had also sought to prove debts she alleged she was owed in the administration of Shuangfu. Accordingly, I reject the various submissions that seek to construe the terms of the agreement by reference to bids by investor/developer.

I accept the submissions of counsel for Mr Lui that, broadly stated, the agreement reflected that Ms Guan needed as many participants as possible in the expression of interest process, she knew that Mr Lui had a network, which could be tapped for that purpose, and she engaged him accordingly. Mr Lui's reward was proportionate to the size of the Kensington Project as valued by Ms Guan.

It may be noted that, in many respects, that I do not accept the broad propositions advanced by counsel for the defendants at paras 120-138 of the Defendants’ Closing Submissions, which contain an admixture of assertions, many of which are unsupported by evidence and stand contrary to the construction of the agreement available by its terms and the commercial purpose as described in the agreement itself or by reference to the available evidence of relevant surrounding circumstances including the expression of interest process referred to above. In particular, I reject the notion that the agreement was concerned with an impending fire sale concerned with the sale of land or that the “only option” was to obtain the highest price for the sale of the land or that the project was only concerned with capital gain through land or land value.

The defendants contended that Mr Lui failed to perform the agreement. The defendants submissions, in this respect, were structured with respect to seven events and/or actions of Mr Lui, which were said to amount to performance, namely:

It was also noted, that Ms Guan was not present to witness any of the alleged acts of performance. Hence, it was contended, that any issues of her credit, in that respect, are not relevant. The issue is simply whether the Court accepted the evidence of Mr Lui, in this respect, vis-à-vis the documents tendered to the Court.

It was submitted, as to the evidence of Mr Lui, that he helped Ms Guan with her immigration issues, that action does not constitute performance.

First, the agreement does not contain any clause requiring such assistance.

Secondly, the alleged work, in any event, took place in or about 2013 – before the agreement was signed on 18 January 2015. The rule that past consideration is no consideration applies. Nor does the Pao On Exception apply because the parties did not understand that such work was to be remunerated.

There is also a Jones v Dunkel inference available since “Janette”, the personal assistant of Phillip Ruddock, was not called to give evidence.

Mr Lui’s alleged phone call to Mr Qian took place in the period 4 December 2014 to 29 December 2014, which is before 18 January 2015. The rule that past consideration is no consideration applies. Nor does the Pao On Exception apply because in the conversation leading up to the alleged phone call, Mr Lui and Ms Guan never formed an understanding that such work was to be remunerated.

Further, Mr Qian (and/or Kerry Properties) never submitted a sealed bid.

The Court is invited to draw a Jones v Dunkel inference that anything Mr Qian would have said would not have assisted Mr Lui to confirm that his allegations about Mr Qian.

It was submitted, Mr Lui’s alleged private meeting with Mr Chen took place after 29 or 30 December 2014 and before 18 January 2015. The rule that past consideration is no consideration applies. Nor does the Pao On Exception apply because in the alleged prior conversation of 29 or 30 December 2014, Mr Lui and Ms Guan only discussed finding an investor to take over the project and selling the land with Mr Lui’s assistance. The conversation did not discuss persuading Mr Chen to do anything. No understanding formed that any work relating to Mr Chen was to be remunerated.

Further, no clause in the agreement required Mr Lui to do anything with respect to Mr Chen.

It was submitted, Mr Lui gave the following evidence:

It was submitted, Mr Chen was not called to give evidence and there is no explanation as to why not (including in cross-examination). Mr Chen is a person that the Court would expect Mr Lui to call and whose evidence could confirm Mr Lui’s allegations. The Court is invited to draw a Jones v Dunkel inference that anything Mr Chen would have said would not have assisted Mr Lui to confirm that he successfully influenced Mr Chen.

It was also contended that the objective evidence, with respect to Mr Chen, particularly his conduct at the time of the creditors’ meetings, revealed that Mr Chen “showed no restraint or mercy… to the First Defendant”. The only slowing down of the progression towards Shuangfu’s liquidation was an adjournment resolution at the second meeting of creditors, which A Capital abstained from voting. It was contended that Mr Chen abstained from voting in order to not block the adjournment that was granted to Landream, which provided Landream with “a final chance to come up with a better DOCA that would satisfy A Capital and the unsecured creditors”. The relevance of this submission was to highlight that Mr Lui had nothing to do with these events.

It was also contended that Mr Chen “never negotiated on the sidelines with [Mr Lui] or [Ms Guan] for anything. Nor would he since no DOCA proposal came from them”. In that light, it was submitted that Mr Lui’s allegation that he had influence upon Mr Chen to the financial benefit of Ms Guan is incorrect.

It was submitted that any evidence with respect to Mr Lui’s wedding, was not relevant to performance.

As to Mr Chan, counsel for the defendants submitted that there is no document proving who Mr Chan is, or whether he has any association with Mr Pak. The defendants’ submissions, in this respect, focused upon the evidence of Mr Lui in light of the material before the Court. I have earlier made findings contrary to Ms Guan in that respect.

First, turning to the evidence of Mr Lui by way of affidavit, in summary:

As to the evidence before the Court via the affidavit of Mr Lui, the Court made evidential rulings that the words “Mr Pak considers that the project is worth around $30,000,000” and “I told Mr Pak what you said and he is going to increase his bid” could only be evidence that the words were said, but not evidence of the truth of the contents of each statement (i.e. truth about Mr Pak’s state of mind). Thus, there is no evidence before the Court about Mr Pak’s state of mind or any changes to it and, it was contended, there is no evidence that Mr Lui changed Mr Pak’s mind, price-wise.

Both Mr Chan and Mr Pak were not called to give evidence and no explanation is given as to why not. As they are people that the Court would expect Mr Lui to call and whose evidence could confirm Mr Lui’s allegations, the Court is invited to draw a Jones v Dunkel inference that Mr Chan and Mr Pak were not called to give evidence because any evidence they might have given would not have assisted Mr Lui.

The following submissions were further advanced:

Turning to the evidence before the Court, with respect to the Anson City bid, the defendants submitted:

The contents of those emails and the findings of the Court, together with the letter of 4 November 2014, were earlier set out in this judgment and will not be repeated. In the light of those emails, the defendants contended the following:

Counsel for the defendants suggested that Mr Lui’s evidence was at time contradictory, particularly with respect to Mr Pak. During cross-examination, Mr Lui acknowledged the efforts of Mr Chan and the involvement of Mr Chen. He said: “I don’t think it’s only one person. It’s a group effort to help Ms Guan”.

Finally, reference was made to the available inferences to be drawn from the letter dated 8 April 2015, from Jones Lang LaSalle, addressed to Mr Lui. Counsel for the defendants described the letter as “a short cursory letter of the type Jones Lang LaSalle would send to associated real estate agents, some of whom would have brought in sealed bidders, to let them know [the land had sold]… and to thank them for participating”. It was suggested, had the role of Mr Lui “been so instrumental”, such that he would be aware of the exchange of contract, there would be no need for such a letter.

Thus, it was submitted, in light of the above submissions, Mr Lui was not the one who found the winning bidder and, as a consequence, cl 5 of the agreement was not fulfilled.

Mr Lui’s affidavit said that “Prior to the end of the EOI Process” he accompanied a “potential investor”, a “Mr Zhao”, to the Kensington land for inspection. It is not clear when this took place, but if it took place before 18 January 2015, then the rule that past consideration is no consideration applies.

In any event, this was not performance because Mr Zhao never submitted a sealed bid.

Further, Mr Zhao was not called to give evidence and there is no explanation as to why not. Mr Zhao is a person that the Court would expect Mr Lui to call and whose evidence could confirm Mr Lui’s allegations. The Court was invited to draw a Jones v Dunkel inference that anything Mr Zhao would have said would not have assisted Mr Lui to confirm his allegations.

Counsel for the defendants submitted that Mr Lui’s alleged work with Fairway was not performance. There appeared to be two bases for that submission.

First, counsel for the defendants turned to the allegation of Mr Lui, “I helped them complete the expressions of interests”, and contrasted that statement with a photograph depicting Mr Macree filling out the expression of interest forms for Fairway. As earlier found, that fact does not impact upon Mr Lui’s credibility nor does it support a conclusion that Mr Lui did not help Fairway. I also reject any proposition that this assistance was inconsistent with Mr Lui’s obligation under the agreement.

Secondly, the defendants, in reliance upon a summary of the expression of interest bids, made the following submissions:

Nothing became of Mr Lui’s alleged work with Mr Gung who submitted no sealed bid. As earlier mentioned, it was submitted, a Jones v Dunkel inference was available for Mr Gung.

Mr Lui gave evidence that he was tasked to find an “investor” since it would give a better result for Ms Guan than a mere sale:

If that task was accepted, it was contended, that Mr Lui failed to deliver a wealthy entity as a rescuer and that he failed to even ask, propose or mention to Mr Qian, Mr Zhao, Mr Gung, Fairway and Mr Chan that they come in with about $60 million (as an “investor”) to rescue Ms Guan. As to the absence of any such evidence in his affidavit, Mr Lui described his affidavit as “a summary”. Counsel for the defendants contended that “there is not a single sentence in the transcript describing an actual proposal by him to these people that they act as 'investor' rescuers”.

Further, Mr Lui’s efforts, it was contended, never led to:

Thus, his conduct was not “an overcoming of the First Defendant's 'current financial difficulties successfully'”.

Finally, it was submitted that the task that Mr Lui failed to complete was also impossible. Mr Lui identified $60 million as an amount which would enable Ms Guan to “pay off whatever owe[d] to Owen, and then they can still have pocket money into their pocket, and then also someone coming in to build … and then they can still have some shares, majorities goes into the investor, and - and that - that is what I've been working on, you know”. However, Mr Lui also admitted that he advised his contacts that $60 million was too high for the land. In fact, the highest figure associated with the Kensington land was $52 million.

Mr Lui’s contentions as to performance were encapsulated in a pithy written submission provided by his counsel in reply. That submission is extracted below:

It will be immediately observed that Mr Lui placed no reliance upon the first limb of Ms Guan’s submissions, namely, any involvement by Mr Lui with Ms Guan’s immigration issues. In fact, Mr Lui is correct to submit that it had not been contended by him that the agreement was concerned with such issues.

It is clear that Mr Lui’s submissions concentrated upon his dealings with Mr Pak of Anson City, via Mr Chan, which was the successful bidder. Emphasis was also placed upon Fairway, which was an unsuccessful bidder. I will therefore commence with those matters.

As to Anson City, I accept the submission of Mr Lui that he contacted his network including Mr Pak and Mr Chan, as earlier found, after the date of the agreement, with a view to seeking Anson City’s engagement with the expression of interest process. I have earlier rejected the defendants by reliance upon the 4 November 2014 letter and the related contention that Mr Liang, not Mr Lui, was instrumental in communications with Anson City

A further submission was developed by the defendants as to whether Mr Lui had procured an increase in the bid of Anson City. As I have found, that submission proceeds upon a misunderstanding of the agreement when properly construed. In any event, the foundation for the submission may not be accepted. The defendants contended that the ultimate winning bid by Anson City of $38,389,000 was, in fact, the equivalent of the offer of $36 million made on 4 November 2014. That submission has no foundation in the evidence.

Counsel for the defendants submitted that the letter of offer dated 4 November 2014 was limited to “81-95 Anzac Parade” because “[t]he subject line of the 4 November 2014 letter makes this clear”. This submission misunderstands the content of the subject line, which is extracted below:

True it is that the subject line refers to 81-95 Anzac Parade but, upon closer examination, the subject line refers to additional lots beyond 81-95 Anzac Parade.

The letter of offer dated 4 November 2014 concerned an offer with respect to seven parcels of land, with the following title details:

Item (5) concerns Boronia Street, Kensington (I will return to the exact description of that lot below).

The same seven parcels of land are then repeated in the subject line of the letter of offer dated 4 March 2015, which is extracted below:

It should be noted, that the same seven title details were listed in the Information Memorandum as the “Property Particulars” for “81-95 Anzac Parade & 67-71 Boronia Street, Kensington NSW”.

The same title details were also listed under the definition of “land” in the contract of sale exchanged on 22 April 2015, although it is appropriate to note the address attached to folio identifier A/953401 (previously described as Lot A DP953401) is “69-71 Boronia Street, Kensington”. The change in address was never fully explained but that matter is immaterial to the issue raised by the defendants.

It follows the only difference between to the offers of 4 November 2014 and 4 March 2015 concerns the context in which the offer is made. The first letter was defined as a “Proposed Acquisition of Property”. The second letter of offer was defined as an “EOI”.

Contrary to the submission of the defendants, each offer contained an offer for the same parcel of land in Boronia Street, Kensington.

The defendants’ submission with respect to “widgets” is rejected.

The fact that Mr Lui may not have seen the expression of interest form until cross-examination, or did not have a specific knowledge of why Mr Pak increased the bid, does not refute or diminish his evidence as to his contribution with Mr Pak and Mr Chan vis-à-vis the expression of interest process.

Further, I do not accept the submission of the defendants that the letter forwarded by Jones Lang LaSalle to Mr Lui on 25 March 2015 was not an indication of his involvement of the expression of interest process but a mere courtesy.

The defendants advanced a further submission as to whether the bid increased from $36 million or $30 million, based upon various contentions as to whether Mr Pak adjusted his position from the offer of 4 November 2014 of $36 million, or his conversation with Mr Lui as to the worth of the project from $30 million. Given the construction of the agreement and the abovementioned finding that there had been an increase in the Anson City bid by over $2 million, those contentions strictly do not require resolution. However, as I have noted, I accept Mr Lui’s evidence as to his discussion with Mr Pak, in that respect. I do not consider the evidence is diminished by an apparent inconsistency between the offer of 4 November 2014 and Mr Pak’s observations to Mr Lui. That is because, there is no evidence as to the circumstances in which the 4 November 2014 offer was made and Mr Pak’s statement to Mr Lui (on Mr Lui’s evidence) concerned what Mr Pak considered the project to be “worth”.

Turning to Fairway, the defendants’ submission on the ranking of bids misunderstands, in a fundamental way, the operation of the agreement. The implication of the submission is that Mr Lui’s obligations under the agreement would be conditioned by the performance of those entities entering expressions of interest on some graduated scale. This is not the case.

The submission is also flawed on another basis, namely, it is not explained why Mr Lui’s assistance in having Fairway produce a $45 million bid on a conditional basis was inconsistent with his obligations, as I have construed them, under the agreement.

It follows, that I accept the aforementioned submission by Mr Lui as to his performance under the agreement with respect to Anson City and Fairway. Accordingly, I consider Mr Lui performed his obligations under the agreement.

Additionally, as previously mentioned, I reject the defendants’ contentions as to the availability of Jones v Dunkel inferences in that respect.

This part of the judgment concerns issue 5.

The defendants’ case, in this respect, may be briefly stated: Mr Lui meets the definition of “real estate agent” under the Act and, therefore, pursuant to s 8(2) of the Act he is not entitled to sue to recover any commission or fee for any service performed in that capacity unless he was licensed at the time of performing the service.

Both parties accepted that in determining whether or not s 8 of the Act acted as a bar to relief, the Court was to construe its provisions, including the definitions set out in s 3 of the Act, in accordance with the usual rules of statutory construction, and to apply them to the facts of this case. The defendants appropriately relied, in that respect, upon the judgment of Payne JA in Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2017] NSWCA 339 (“Ryde Developments”) (at [39]-[45]).

Whilst counsel for the defendants recanted from aspects of the language used of the statement of issues produced for the defendants as to the real estate issue, it is appropriate to nonetheless extract the statement below as it contains the essence of the case brought by the defendants:

It is evident that the focus of the defendants’ submissions on construction concern the definition of “real estate agent” in s 3 of the Act.

It was submitted that Mr Lui carried on a business of an agent for the purpose of the definition of real estate agent under s 3 of the Act.

As to the construction of the Act, the defendants placed significant reliance upon the judgment of Ball J in Williams v ATM & CPA Projects Pty Limited [2015] NSWSC 703 (“Williams”). A summary of the principles relied upon by the defendants follows:

In light of those principles, the defendants contended that the Court should look at Mr Lui’s actions, as a starting point in determining whether or not he “carries on business as an agent”, and not to the terms of the agreement. The defendants advanced six submissions, in that respect.

First, the defendants submitted:

Secondly, it was also submitted that Mr Lui’s involvement in the Kensington land “was not a one-off or isolated event, nor the first, or even the last, real estate transaction in his career”. It was contended, that Mr Lui’s conduct could not be described as being done “with no intention to engage in subsequent real estate transactions”.

Thirdly, the defendants further relied upon the evidence of Mr Lui and Elite 100 in support of this contention. This included the following:

Fourthly, in light of the evidence of the business conducted by Elite 100, Mr Lui’s evidence as well as Mr Lui’s provision of services, allegedly, to Mr Gung, Mr Zhao, Mr Qian, Fairway and others, it was submitted that Mr Lui was able to conduct such services in the way he did because Mr Lui was a “veteran real estate agent”.

Fifthly, reference was also made to the letter of demand. It was submitted that it bears the characteristics of a real estate agent’s letter of demand, for the following reasons:

The defendants also contended that, in light of the letter of demand, there is an available inference that the money demanded was a real estate agent’s commission.

Sixthly, reference was also made to the earlier cited references to Elite100 and Mr Lui in documentation prepared by Jones Lang LaSalle, namely, the marketing update document dated 4 February 2015 and a letter from Jones Lang LaSalle to Mr Lui and Elite 100 dated 8 April 2015. This documentary evidence, it was submitted, indicates the ties between Elite 100 and Mr Lui.

In reply to contentions raised by Mr Lui, in the Plaintiff’s Closing Submissions in Reply, as to the relevance of the “capacity to bind” to the definition of “real estate agent” under the Act (with respect to the power of Ms Guan, or lack thereof, to sell, buy, exchange or otherwise dispose of the land), the defendants advanced the following submissions in the Defendants’ Supplementary Submissions:

From those authorities the following principles and observations were relied upon by the defendants:

Secondly, whilst it is true that one of the definitions of “real estate agent” is a person who is an “agent” to a “real estate transaction” (see sub-section (a) of the definition), that is only one part of the definition, which, it was contended, Parliament had widened. Due to other parts of that definition, a person need not necessarily be an “agent” to a “real estate transaction” to be a “real estate agent”. This is due to sub-sections (b)-(e) in the definition, and the word “or” which separates each sub-section. (It was also noted that the defendants maintained that the expression of interest process was a real estate transaction).

If a person acts “as an agent” in “introducing” or “arranging for the introduction” of a “prospective purchaser” to “another licensed agent”, to “the owner”, or to the “agent of the owner” of land, that person is a “real estate agent”. No real estate transaction is needed.

Similarly, even if there is a “real estate transaction”, one does not necessarily need to be the agent acting for the vendor. One can be the agent acting for the buyer, or just an agent. All that is needed is for one to not be acting as a principal for himself or herself; that is why the phrase “as an agent” is present. In the present case, Mr Lui never acted as a principal for himself.

It is not necessary to have a power to sell a piece of land, to “induce” others to “make an offer” to buy it. Further, it is not necessary to have a power to sell a piece of land to “introduce” others to the “owner” or to be an “agent of the owner” of said land. In that respect, reliance was placed upon the following note that directly follows the definition of real estate agent in the Act: “Note: This definition is not limited to the selling of land and extends to an agent acting on behalf of the buyer of land (a buyer's agent)”. Reference, in this respect, was also made the second reading speech of 9 May 2002:

As to this second component of construction, reliance was placed upon the following authorities:

In light of those two authorities, the defendant submitted: whilst it is true that Mr Lui’s real estate agency work was “not typical” in that he was acting for the director of a company which owned the Kensington land, but whose land was being sold by the mortgagee in possession, he was nevertheless providing real estate agency services to Ms Guan. He was her agent. He was never the principal. As her agent he “introduced”, as well as “negotiated” and “induced”.

Lastly, it was submitted, the cases of Ryde No 4 and Ryde Developments (first instance and on appeal) point to the phrase “as an agent” being satisfied on the present facts.

The defendants also advanced a submission as to the appropriate analysis of the transaction, namely, “retrospective versus prospective analysis”. The defendants, in this respect, relied upon the existing business of Elite 100 by which, it was contended, Mr Lui received payment for real estate work. Mr Lui’s work on “the Kensington land”, therefore, was not an isolated transaction, rather it was just another in a long series of already performed real estate agent's work. (It was noted that Mr Lui’s role within Elite 100 and the function of that business was put to Mr Lui during cross-examination).

The defendants contended that the “service” performed by Mr Lui fell within the definition of “real estate agent” under s 3 of the Act. It was submitted the definition provided for five forms of “service”, the defendant relied upon argument with respect to the first three:

No strict delineation was made between the forms of services within the defendants’ submissions. However, submissions with respect to (a), (b) and (c) are summarised below.

As to the first contention, that the service performed by Mr Lui was for a real estate transaction, the following submissions were made:

Thus, there was a real estate transaction and it was contended that Mr Lui acted as an agent for that transaction.

Turning to the specifics of “the service” provided, the defendants described the services, when taking Mr Lui’s case at its highest, as follows:

It may be observed that these submissions (and many other submissions advanced by the defendants under this heading) were not pleaded in the alternative, although I accept counsel for the defendants framed his closing submissions in that way. There is an obvious tension between the defendants’ case as to the contract dispute issue and the real estate agent issue.

Those services, it was contended, were all services of a real estate agent or, in alternative, enough of them were such that it can be said that an “essential feature of the transaction was the sale of real property” (to use the words of Ball J in Williams).

Returning to the agreement, the defendants submitted that the agreement, deconstructed, “was nothing more than a real estate agent’s retainer”. The following submissions were advanced in support of that contention:

Further, as to the terms of the agreement, if Mr Lui was simply required to “find investment partners” and to help Ms Guan “find appropriate investment developers”, the defendants submitted that it would follow that Mr Lui would have “passed on the contact details to [Ms Guan], and she would have been the one zeroing in and talking to all these people”.

It was also contended that Mr Lui did not attempt to “mix in any other service”, for example, that of finding an investor. The defendants contended that “[o]ne does not hand out a real estate information memorandum to persuade someone to buy shares or submit a DOCA”. However, even if he did, the primary factor that the Court needs to be satisfied with is that “an essential feature of the transaction was the sale of real property”: the transaction must be “quintessentially a real estate transaction” – the fact that that may not be “the only type of transaction, that they were seeking to negotiate” is not detrimental to the Act’s application (Williams at [77]).

The defendant contended that Mr Lui also acted as agent for “for inducing or attempting to induce or negotiating with a view to inducing any person to enter into, or to make or accept an offer to enter into, a real estate transaction or a contract for a real estate transaction”. The following submissions were advanced in that respect:

Turning to the defendants contentions as to “introduction”. The following submissions were advanced:

The third category concerns the use of and the meaning of the words “as an agent” within the definition of real estate agent (and as distinct from the definition of “agent” as provided under the Act).

Reliance was placed upon two lines of authority described as “established” and “recent”, respectively: Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418; [1970] HCA 31 (“Freehold”) (per Walsh J) and Ryde No 4 (per Ball J).

In Freehold at [15], Walsh J observed:

Freehold was subsequently approved in Greg Roughsedge Realty Pty Ltd v Whitecross [2001] QCA 426 at [34], [35] and [42] (per Jones J, with whom Williams JA and Douglas J agreed) and Sultana (per the Court at [34]).

Reference was also made by the defendants to the earlier decision of Kedcorp. In that decision, the Court said (at [16]): “In our view the words ‘as an agent for others’ in s 2, which is merely one element in a complex definition, simply connotes a person engaged to act on behalf of another … It is not amiss to note in this context that the classical function of a real estate agent has been regarded as ‘to find a buyer’ or to introduce a vendor and purchaser”.

In light of the “established” authorities, the defendants submitted that a person meets the definition “as an agent” if they act, not for themselves, but on behalf of another.

It was also noted, in that respect, that no line of authority (nor the Act itself) appears to define or otherwise restrict “other” to that of the vendor or the buyer only. Thus, it was contended, the Court would be hesitant to find that a person only acts “as an agent”, with the context of the Act, when acting for certain classes of people, but not others; namely, the “other”, it was submitted, need not be defined as limited to “the vendor or the buyer” alone. It was submitted, that such a finding would create a precedent that jars with the established line of authority.

Turning then to the recent authorities of Ball J in Ryde No 4. Notwithstanding, that decision was ultimately overturned on appeal (as earlier mentioned), it was contended that the “primary judge’s analysis” remains good law (see Ryde Developments at [4]). (As to the point overturned on appeal, see Ryde Developments at [68]-[86]).

In Ryde No 4, Ball J accepted the established line of authority but also sought to expand upon the construction of “as an agent” (at [88]):

His Honour further observed (at [89]-[93]):

In light of that authority, counsel for the defendants advanced the following submissions:

In further summary, counsel for the defendants made the following, in closing oral submissions:

Finally, in the Defendants’ Reply to the Plaintiff’s Response to the Defendants’ Consolidated Submissions, the following submissions were further advanced in supplementation of the above contentions.

First, in furtherance of submissions as to the wide approach to be taken to the construction of “real estate agent” under s 3 of the Act, the defendants submitted: “Nowhere does the PSBAA say that ‘as an agent’ means ‘as an agent for the buyer’ or ‘as an agent for the seller’ only”. If the Court were to limit the definition in that way, “[t]he Court would essentially be deleting sub-sections (b)-(e) in the s 3 definition… A person would only be a real estate agent if that person was an ‘agent’ for a ‘real estate transaction’ (sub-section (a))”. By contrast, sub-sections (b)-(e) do not require things to reach the stage of “purchase” or “sale”; it was contended that “merely inducing someone to make an offer, or merely introducing someone is enough”.

Second, the “touchstone” of Ball J’s decision in Ryde No 4 is, it was submitted, “whether the person being sued to pay a fee was a ‘consumer of real estate agency services’ as provided by the person doing the suing”. It was contended that by that “touchstone” the “As an Agent Box” is not restricted “to those real estate agents who are only agents for the buyer or seller”. This submission appears to connect with the defendants’ earlier submission as to the “involvement” of Ms Guan, namely, she “had a keen interest in seeing the Kensington land sold for as much as possible” (notwithstanding the fact she was not the vendor/seller).

Lastly, the agreement, it was contended, required Mr Lui to find a winning bidder for the Kensington land for the highest price possible and that everything Mr Lui did was in furtherance of providing that “service”. That service, it was submitted, “was clearly a real estate agency service. That is what real estate agents do: they find buyers for land at the best price possible”. Ms Guan was a “consumer” of that service.

Section 3 sets out the definitions for “agent” and “real estate agent”. An “agent” is defined as follows:

A “real estate agent” is defined as follows:

“Real estate transaction” means “the purchase, sale, exchange, lease, assignment or other disposal of land, whether or not an auction is involved”.

Section 8 provides as follows:

The defendants contended that the provisions of s 8(2) of the Act were a bar to Mr Lui making the claim pursuant to the agreement for damages in this Court.

In order to make good that contention the defendants must establish that Mr Lui was performing the service of a real estate agent for a natural person, namely, Ms Guan.

Section 3 of the Act provides definition of real estate agent. By virtue of that definition the defendant must establish for the purposes of these proceedings that Mr Lui was a person who carried out the business of an agent for a real estate transaction as defined in the Act. This shall be described, as the defendants did, as the first issue.

The first issue debated by the parties in isolation from the questions as to whether Mr Lui was engaged in performance of the agreement in a real estate transaction but those considerations, at least as a matter of fact, cannot be entirely dislocated.

The first issue, so described, is a question of fact. An evidentiary onus lies on the defendants in that respect.

The starting point for the resolution of the first issue is to construe the relevant provisions and then to carefully examine the facts: Farrell v Bannister (1952) 52 SR (NSW) 73 (“Farrell”); Lend Lease Real Estate Investments Ltd v Charter Hall Retail Management Ltd [2011] NSWSC 1624 (“Lend Lease”); Sims v Gawne [2005] NSWSC 750 (“Sims”) at [21].

As to the meaning of the expression “carries on a business” for the purposes of the definition of a real estate agent in s 3 of the Act I adopt, with respect, the analysis of Ball J in Williams at [70] as follows:

I also accept his Honour’s broad description of the principles of the Act in Ryde No 4 at [90].

In my view, there is a relatively straightforward factual basis upon which the defendants’ reliance upon a bar under s 8(2) of the Act must be rejected by reference to the first issue.

Assuming that it may be found that Mr Lui’s services to Ms Guan in relation to the Kensington Project amounted to services as a real estate agent (and I will conclude that no such finding is properly available), the defendants failed to establish that Mr Lui provided the services other than as a one off transaction: Bannister (1952) 52 SR (NSW) 73 at 74 per Street CJ; Simpson at [146]; Mathas v Slater [2009] NSWSC 1397 at [111].

There was no evidence that Mr Lui intended to be involved in future transaction of the kind engaged on behalf of Ms Guan or real estate transactions of any kind. There was no evidence of Mr Lui intending to repeat that business: Williams at [70]. Those propositions were never put to him in cross-examination.

A person who is found to have been involved in an isolated transaction of the kind in question or is not otherwise found to have been involved in a "business" of a real estate agent is not prohibited from recovery: Farrell at 74 per Street CJ; see also Milne v Coxton (unreported, Supreme Court of NSW, Clarke J, 1985) BC8700884 (at 53).

In this case, the defendants have failed to establish, as a matter of fact, that Lui conducted a “business” of a real estate agent. Counsel for the defendants was entirely unsuccessful in putting such a proposition to Mr Lui in cross-examination. He accepted Mr Lui’s rejection of the propositions (albeit that they were on occasions not put in an entirely clear way). The defendants called no evidence in that respect.

In the Defendants’ Reply to the Plaintiff’s Response to the Defendants’ Consolidated Submissions, the defendants’ made an unsuccessful attempt to demonstrate there was some evidence that Mr Lui’s business concerned real estate either historically or as a present day operation.

None of those submissions referred to Mr Lui’s evidence. Further, the evidence that the defendants sought to rely upon, as to Mr Lui’s prior activities as a real estate agent, in this respect, was threadbare, inconclusive and ultimately did not establish the proposition that the defendants sought to put. My reasons for that conclusion are in two parts.

First, the defendants sought to rely upon Mr Lui’s past interactions with Mr Liang and Mr Qian, as derived from Mr Lui’s affidavit and answers during cross-examination, to demonstrate that Mr Lui was involved in “a whole raft of real estate work”. In support of that contention, the following evidence was referred to:

The evidence of Mr Lui as to his interactions with Mr Liang and Mr Qian are not demonstrative of prior activities as a real estate agent. Further, it may be added, the submissions advanced by counsel, in this respect, which were described as “basic facts”, appeared to be based upon a highly optimistic interpretation of a rather slender piece of evidence (In my view, the defendants contention was not supported by the evidence at all).

Secondly, the defendants sought to rely upon Mr Lui’s connection to Elite 100, which the defendants’ contended was a business that conducted real estate transactions. In advancing that submission, counsel for the defendants sought to eradicate any form of delineation between the activities of Elite 100 and Mr Lui, in order to draw connections between the business of Elite 100 and Mr Lui (Mr Lui was a 40% shareholder). The highest point of the defendants’ case, as to Elite 100 demonstrating prior conduct of real estate transactions (notwithstanding the fact that Elite 100 was not party to the agreement), was an extract from the Elite 100 website that described one of its “core” business operations (of which there were five listed) to be: “facilitating project and property investment”. That evidence cannot be accepted as sufficient to sustain the proposition that Elite 100 thereby conducted real estate transactions and, therefore, Mr Lui was, by extension, involved in and “a whole raft of real estate work”.

It may be noted, in that respect, counsel for the defendants never put to Mr Lui that, by his connection to the work of Elite 100, he was thereby involved in real estate transactions. During cross-examination, counsel for the defendants, with respect to the business of Elite 100 and the involvement of Mr Lui, sought to draw, however, a connection, albeit tenuous, between SIV and real estate, as follows:

In any event, as mentioned, Elite 100 was not party to the agreement, nor was it ever suggested that Mr Lui entered the agreement in anything other than a personal capacity.

Overall, the Defendants’ Reply to the Plaintiff’s Response to the Defendants’ Consolidated Submissions appeared to be an attempt to sieve through to evidence to repair a lacuna in the defendants’ case with respect to this issue. It was unsuccessful.

Importantly, unlike the case in Williams, there was no evidence that Mr Lui and Ms Guan discussed in any other similar transaction either in relation to another property or generally into the future.

Overall there was no evidence to support that Mr Lui had engaged in prior activity as to as a real estate agent or intended to carry on any such businesses.

This conclusion suffices to reject the defendants’ contention as to the operation of a prohibition on recovery pursuant to s 8(2) of the Act.

For completeness, I will review other bases for the defendants’ contentions. Those contentions must also be rejected. I will initially turn to the balance of consideration under the first issue and then briefly deal with the second and third issues as stipulated by the defendants.

In my view, there was insufficient evidence to support a conclusion that Mr Lui carried on a business as a real estate agent in or in connection with the performance of his work under the agreement. Further, I do not consider he carried on a business as an agent for a real estate transaction for Ms Guan for reward.

In further summary, the defendants submitted, in support of its contention that Mr Lui carried out the business of an agent for a real estate transaction, Ms Guan was a consumer of real estate services, upon the following bases:

I reject those submissions because they misunderstand or misstate the nature of Mr Lui’s engagement on behalf of Ms Guan for the following reasons:

It was submitted by the defendants that contrary to Ball J’s opinion in Ryde No 4, involvement as a real estate agent was not confined to a vendor or buyer. Alternatively, even on Mr Lui’s version, it was contended, his participation in finding a bidder constituted a “real estate agency service”. It was submitted that sub-sections (b) to (e) of the definition of “real estate agent” in the Act required an affirmative conclusion in this respect.

The difficulty with that submission is the evidence as to the lack of proximity between Mr Lui and the real estate transaction in which the vendor and ultimate purchaser were involved in.

Whilst I agree with Ball J in Ryde No 4 as to the purpose of the Act (see at [90]) and that the word agent should not be interpreted narrowly (at [91]), the definition of “real estate agent” in the Act should not be read too broadly: Lend Lease at [38]-[39]. I do not consider the agreement or Mr Lui’s conduct, as construed in this judgment, falls within that definition.

There was no evidence that either Ms Guan or Mr Lui was in any position to offer any inducement to anyone to enter either into the bidding process or the contract of sale. In Hawk, Bell J (as her Honour then was) described “inducement” by reference to the "real estate transaction" and analysed the relevant conduct by reference to whether it was an endeavour to persuade someone to "enter a contract for a real estate transaction" (at [49]). There was no such inducement in this case.

There is no evidence that Mr Lui sought to persuade any party to enter into a contract for a real estate transaction. He encouraged Fairway and Anson Company to engage in the expression of interest process and provided certain information.

Nor do I consider the evidence reveals that Mr Lui engaged in any negotiations. In Challenger, Young CJ in Eq stated, "the word [negotiation] usually means the arrangement of a sale and purchase, that is obtaining and finally settling all the terms and conditions and the price" (at [60]). Mr Lui was not involved in any task that answers those descriptions. The evidence was that he and Ms Guan were specifically excluded from any such negotiations. All that Mr Lui was required to do was to "find investment partners" and "assist” Ms Guan to "find appropriate investment developers". That clearly involved no negotiation.

The defendant contended that, in any event, Ms Guan was “involved” in the sale of “the Kensington land” or she was a director and shareholder of a company that was a registered proprietor and was a personal guarantor of that company’s debt to A Capital. She had a “keen interest in seeing the Kensington land sold for as much as possible”.

However, the bidding process was not a "real estate transaction". The "purchase, sale… or other disposal of the land” took place without reference to either Mr Lui or Ms Guan. Neither was involved in that process.

In Lend Lease, Rein J dealt with circumstances where the plaintiff, Lend Lease, had included the defendant in a bidding process as part of a consortium. Whilst his Honour was not faced with the present issues as such, namely, whether a bidding process satisfies the requirements of the term, "real estate transaction", his Honour rejected the argument based on s 9 of the Act on the basis that the "fee" was for "including Charter Hall in its bid for all of the assets owned by ING...". The circumstances of this case are even further removed from the circumstances of the case in Lend Lease. Here, Mr Lui's entitlement to the monies that he seeks was triggered by the success of the bidding process and not the sale of the Kensington Project.

I accept the submission of Mr Lui that there is no basis on present authority to extend the meaning of agent to include a person not partaking in a real estate transaction.

As Ball J said at [90] and [91] of Ryde No 4, the Act was enacted to protect the interests of consumers of "real estate agency services". On no view could Ms Guan be considered to be such a consumer. She was neither a vendor nor a purchaser. This factual matrix differs from factual matrices in the authorities cited by the defendants on this question. Unlike the parties in those cases, neither she nor Mr Lui was involved in the "real estate transaction".

It was common ground that the vehicle owned by Sun Link had been sold for $200,000. I consider, in the absence of a contrary submission that should be taken as the material value of the vehicle for the purposes of an order of damages. However, the Court will require further submissions as to the whether or not Ms Guan may be personally liable for such damages, with respect to the vehicle, in circumstances where Ms Guan did not have the authority to bind Sun Link and Sun Link was not found to be a party to the agreement.

Having regard to the aforementioned construction of the agreement the relevant consideration for the balance of the relief claimed by Mr Lui is “the tender rate”, which is to be calculated by reference to the final bid by Anson City. Two percent of the tender rate equals $780,000. That amount remains unpaid. It is appropriate that Ms Guan be ordered to pay Mr Lui that sum.

In the circumstances, the issues raised by the parties should be answered as follows:

I return briefly to the second matter. As earlier mentioned, the contentions of Mr Leong, counsel for the Sun Link in the second matter (noting Ms Guan was not a party to the second matter), were brief and primarily served as supporting context to arguments in relation to the primary matter. Nonetheless, a brief summary of the parties’ submissions, in that respect, follows.

Counsel for Sun Link did not produce any written submissions with respect to the second matter, save for the following contention in the Defendants’ Opening Submissions in the primary matter: “Sun Link Group’s ownership of the vehicle has been maintained and asserted”.

On the first day of hearing, counsel for Sun Link contended that, notwithstanding the sale of the vehicle, an action in damages remains, as Sun Link “suffered loss of enjoyment”. However, as the second matter was pleaded on the basis of the vehicle being in Mr Lui’s possession, the Court allowed counsel for Sun Link to consider how it wished to proceed. That exchange was as follows:

Counsel for Sun Link did not seek to further develop submissions or re-agitate the issue. Counsel for Mr Lui submitted that nothing remained of the second matter and that it should be dismissed with costs. I accept that submission.

Mr Lui has established his claim for breach of contract against Ms Guan. Ms Guan failed to pay Mr Lui in accordance with cl 5 of the agreement. Mr Lui performed his obligations under the agreement as set out in this judgment. Accordingly, Mr Lui should obtain the relief in that respect.

It is true Ms Guan failed or refused to cause the registration of the vehicle to be transferred to Mr Lui in accordance with cl 4 of the agreement. However, there remains a question as to whether Mr Lui may properly be awarded damages with respect to that failure under prayer 4 for relief of the ASOC, having regard to the vehicle belonging to Sun Link. Accordingly, the Court will receive further submissions as to any personal liability of Ms Guan in that respect. If damages were ordered, they would be in the sum of $200,000.

The parties sought that the question of interest and cost be held over pending this judgment. It is appropriate that directions are made, in that respect, and are reflected below.

Submissions as to interest and costs may be affected by the Court’s final determination of damages with respect to prayer 4 for relief vis-à-vis damages with respect to the vehicle. However, that is a quite compact issue and, accordingly, the Court may receive submissions on that issue at the same time as receiving submissions or evidence on the question of interest and costs even if alternative formulations are provided by the parties.

The statement of claim brought by Sun Link is dismissed.

The Court makes the following directions: