Chan v Chen - [2005] VSC 432

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7446 of 2003

KIM MAN CHAN	First Plaintiff
KWOK WAI CHAN	Second Plaintiff
EAST WORLD INTERNATIONAL (AUSTRALIA) PTY LTD (ACN 094 780 775)	Third Plaintiff
EAST WORLD INTERNATIONAL LTD	Fourth Plaintiff
v
DAVID WEIPING CHEN	First Defendant
RENMIN LU CHEN	Second Defendant
LUJIA CHEN	Third Defendant

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JUDGE:	GILLARD J.
WHERE HELD:	Melbourne
DATE OF HEARING:	26 - 30 September and 3-5, 10-13 October 2005
DATE OF JUDGMENT:	11 November 2005
CASE MAY BE CITED AS:	Chan and ors v Chen and ors
MEDIUM NEUTRAL CITATION:	[2005] VSC 432

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CONTRACT –Defendants allege three oral agreements – Contracts denied – Resolution of issues depend on credibility of witnesses – Defendants fail to prove contracts - Claims fail – Plaintiffs claim damages for detinue – Claim established – Plaintiffs seek account of funds paid to 1^st defendant for private and company expenditure – Defendants misappropriate moneys – Order for accounts.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M. Colbran Q.C. with Mr M. Simon	Lily Ong
For the Defendants	Mr P. Cawthorn	Pointon Partners

TABLE OF CONTENTS

Parties

The dispute

Issues

Credibility Issues

Basic Facts

The Counter-Claim and Credibility

Plaintiffs’ claims

A. Claim in detinue and conversion
B. Recovery of moneys misappropriated

Conclusion

HIS HONOUR:

In this proceeding, instituted by writ, the four plaintiffs seek recovery of moneys unlawfully misappropriated by the first and second defendants and the recovery of certain chattels from the three defendants. The first and second defendants have counterclaimed against the first three plaintiffs. They claim against the first and second plaintiffs a half interest in a valuable property in Toorak and damages for breach of two oral agreements. They seek from the third defendant moneys owing and the first defendant seeks damages for breach of a contract of employment.

The first plaintiff and the first defendant are brothers, and the second plaintiff and second defendant are their respective wives. This case is a family dispute which like many family disputes has engendered a substantial amount of emotion and venom and divided the family.

Parties

The first plaintiff is Mr Kim Man Chan (“Mr Chan”). He is aged 54 years, was born, raised and educated in mainland China and is a successful Hong Kong businessman. He is married to the second plaintiff. They have a daughter, Sing Chan (“Ms Chan”).

The second plaintiff, Mrs Kwok Wai Chan (“Mrs Chan”) was born in mainland China, raised and educated in China and is a graduate from Nanjing University. She is involved in the company operating the Chan family business in Hong Kong.

The third plaintiff, East World International (Australia) Pty Ltd (“East World Australia”), is a company which was registered in Australia on 17 October 2000. At the time of its registration its three directors were Mr and Mrs Chan and the first defendant, who were also the shareholders. Mrs Chan had 4,000 shares and the two men had 3,000 shares each. The…

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 Chan v Chen

Details

AGLC: Chan v Chen [2005] VSC 432
Case: [2005] VSC 432
Decision Date: 11 November 2005

CaseChat Overview and Summary

Chan v Chen was a case before the court where the plaintiffs, Chan, sought to recover damages for detinue and an account of funds paid to the first defendant, Chen, for private and company expenditure. The defendants alleged the existence of three oral agreements with the plaintiffs, which the plaintiffs denied. The resolution of the issues hinged on the credibility of the witnesses, and the defendants ultimately failed to prove the existence of the contracts. Consequently, the defendants' claims were dismissed.

The legal issues the court had to determine included whether the defendants had established the existence of the three oral agreements with the plaintiffs, and whether the plaintiffs were liable for detinue and had misappropriated funds. The court had to consider the evidence presented and assess the credibility of the witnesses to resolve these issues.

The court found that the defendants had not provided sufficient evidence to establish the existence of the alleged oral agreements. The defendants' claims were therefore dismissed. The court also found that the plaintiffs were liable for detinue and had misappropriated funds, leading to an order for an account of the funds paid to the first defendant for private and company expenditure.

The court ordered that the defendants provide an account of the funds paid to the first defendant for private and company expenditure, as the plaintiffs had successfully proven that the defendants had misappropriated moneys. The plaintiffs were also awarded damages for detinue.

Orders