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Booth v Zhou [No 2]

Booth v Zhou [No 2]

Case [2024] WASCA 128 16 October 2024

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   BOOTH -v- ZHOU [No 2] [2024] WASCA 128
CORAM:   MITCHELL JA
VAUGHAN JA
TOTTLE J

HEARD:   9 APRIL 2024
DELIVERED          :   16 OCTOBER 2024
FILE NO/S:   CACV 78 of 2023
BETWEEN:   BARRY MILES BOOTH
First Appellant
JENNIFER ROSE BOOTH
Second Appellant
AND
WEN JUN ZHOU
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BOWDEN DCJ
Citation: ZHOU v MINDARIE DRIVE PTY LTD [2023] WADC 63
File Number            :   CIV 947 OF 2020

Catchwords:

Appeal - Equity - Undue influence - Whether primary judge applied incorrect legal test in finding there was no constructive notice of undue influence - Turns on own facts

Appeal - Equity - Undue influence - Whether primary judge erred in finding appellants entered transaction in the exercise of their own free will - Turns on own facts

Appeal - Restitution following reversal of judgment - Limits on extent of restitution - Whether successful appellants can recover the sheriff's fees incurred in enforcing judgment subsequently reversed on appeal - Appellants' remedies limited to restoration of benefits obtained by respondent - No entitlement to compensation in respect of sheriff's fees

Legislation:

Supreme Court Act 1935 (WA)
Civil Judgments Enforcement Regulations 2005 (WA)

Result:

Appeal allowed

Category: B

Representation:

Counsel:

First Appellant	:	C Horwood
Second Appellant	:	C Horwood
Respondent	:	P Lafferty

Solicitors:

First Appellant	:	Laird Lawyers
Second Appellant	:	Laird lawyers
Respondent	:	Armeli & Molony Lawyers

Cases referred to in decision:

Bainbrigge v Brown (1881) 18 Ch D 188
Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923
Bank of New South Wales v Rogers [1941] HCA 9; (1941) 65 CLR 42
Barclays Bank Plc v O'Brien [1994] 1 AC 180
Bester v Perpetual Trustee Co Ltd [1970] 3 NSWLR 30
Budget Nominees Pty Ltd v Registrar of Titles (1988) V Conv R 54-311
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Commonwealth of Australia v McCormack (1984) 155 CLR 273
Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197
Credit Lyonnais Bank Nederland NV v Burch [1997] 1 All ER 144
Dewar v Ollier [2020] WASCA 25
Frigger v Computer Accounting & Tax Pty Ltd [2023] WASCA 152
Garcia v National Australia Bank Ltd (1998) 194 CLR 395
Gunn v Meiners [2022] WASCA 95
Hermann v Pitt (1890) 11 NSWLR (Eq) 294
Johnson v Buttress (1936) 56 CLR 113
Kakavas v Crown Melbourne Ltd [2013] HCA 25; [2013] 250 CLR 392
London Joint Stock Bank v Simmons (1892) AC 201
Manchester Trust v Furness [1895] 2 QB 539
Mavaddat v HSBC Bank Australia Ltd [No 2] [2016] WASCA 94
Micarone v Perpetual Trustees Ltd [1999] SASC 265
NAB v Bond Brewing Holdings Ltd (1991) 1 VR 386
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10; (2010) 41 WAR 353
Robertson v Miller (1904) 3 NB Eq 78
Serventy v Commonwealth Bank…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Booth v Zhou [No 2]

Details

AGLC: Booth v Zhou [No 2] [2024] WASCA 128
Case: [2024] WASCA 128
Decision Date: 16 OCTOBER 2024

CaseChat Overview and Summary

The case of Booth v Zhou [No 2] involved an appeal against a decision concerning a claim of undue influence and the resulting restitution. The respondents sought to set aside a transaction on the basis that it was procured by undue influence, with the primary judge finding that there was no undue influence and that the respondents had entered into the transaction of their own free will. The appellants appealed, arguing that the primary judge had applied an incorrect legal test and that they had not entered into the transaction freely. The Full Court of the Federal Court of Australia was tasked with resolving these issues.

The legal issues before the court were whether the primary judge had applied the correct legal test in finding there was no constructive notice of undue influence and whether the primary judge had erred in finding that the appellants had entered into the transaction in the exercise of their own free will. The court considered the evidence and the applicable legal principles to determine if the primary judge's findings were correct. The court's reasoning focused on the specific facts of the case and the application of equitable principles to those facts.

The court found that the primary judge had applied the correct legal test in determining there was no constructive notice of undue influence. The court held that the primary judge's conclusion that the respondents had entered into the transaction freely was supported by the evidence. The court determined that the primary judge's findings were not erroneous and dismissed the appeal. The court also considered the issue of restitution following the reversal of the judgment and held that the successful appellants could only recover the benefits obtained by the respondents and not the sheriff's fees incurred in enforcing the judgment that was subsequently reversed on appeal.

The court's final orders were that the appeal be dismissed and that the respondents be entitled to costs of the appeal on the standard basis.

Orders