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Citibank Ltd v Liu

Citibank Ltd v Liu

Case [2003] NSWSC 569 25 June 2003

Breach of Contract

Causation

Admissibility of Evidence

Commercial Law

Civil Litigation & Procedure

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Reported Decision:
(2004) Aust Contract Reports (Digest) 90-182
(2003) ATPR (Digest) 46-236

Supreme Court

CITATION: Citibank Ltd v Liu; ABN Amro Bank NV v Liu [2003] NSWSC 569

HEARING DATE(S): 3 & 4, 8, 10 & 11 October 2002, 10 - 13, & 20 February, 28 March and 29 May 2003

JUDGMENT DATE:
25 June 2003

JURISDICTION:
Equity

JUDGMENT OF: Hamilton J

DECISION: Defendant liable for damages on some causes of action for deceptive or misleading conduct under the Fair Trading Act 1987. Judgment for defendant on other causes of action.

CATCHWORDS: EVIDENCE [144] - General principles - Civil proceedings - Evidence Act 1995 s 140 - Serious charge - Fraud - PROCEDURE [112] - Supreme Court procedure - Practice under Supreme Court Rules - Evidence - Other matters - Affidavits - Affidavit allowed to be read although deponent does not attend for cross examination - Weight to be given to evidence - TRADE AND COMMERCE [32] - Trade and commerce generally - Statutes relating to misleading or deceptive conduct in trade - New South Wales - Interpretation - Whether representation made by agent who is employee on behalf of principal also made by employee personally - TRADE AND COMMERCE [136] - Trade practices and related matters - Enforcement and remedies - Actions for damages - Causation - Causal link between contravening conduct and loss - Extent of reliance on conduct.

LEGISLATION CITED: Evidence Act 1995 s 140
Fair Trading Act 1987 s 42
Supreme Court Rules 1970 Part 8 r 16
Trade Practices Act 1974 (Cth) ss 52, 53(a)

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Australian Competition and Consumer Commission v McCaskey (2000) 104 FCR 8
Briginshaw v Briginshaw (1938) 60 CLR 336
Clyne v The Law Society of New South Wales NSWCA 4 September 1987 unreported
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Derry v Peek (1889) 14 App Cas 337
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (1988) 28ACSR 688
Gould v Vaggelas (1985) 157 CLR 215
Helton v Allen (1940) 63 CLR 691
John G Glass Real Estate Pty Limited v Karawi Constructions Pty Limited (1993) ATPR 41-249
Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458
Lowe v Indoor Cricket Federation of NSW Inc (1994) ATPR 41-359
Pricom Pty Ltd v Sgarioto (1994) ATPR (Digest) 46-135
Re O'Neill [1972] VR 327
Rejfek v McElroy (1965) 112 CLR 517
Shepherd v The Queen (1990) 170 CLR 573
Sibley v Grosvenor (1916) 21 CLR 469
Yorke v Lucas (1985) 158 CLR 661

PARTIES :
4660/99
Citibank Limited (P)
Chiu Wah Liu (aka Tina Liu) (D1)
Casey Wong (aka Kai Chee Wong) (D2)
Tatepro (Aust) Exports Pty Limited (D3)
Premier Corporation Pty Limited (D4)
Strategic Commodities Pty Limited (D5)
4662/99
ABN Amro Bank NV (P)
Chiu Wah Liu (aka Tina Liu) (D1)
Casey Wong (aka Kai Chee Wong) (D2)
Tatepro (Aust) Exports Pty Limited (D3)
Premier Corporation Pty Limited (D4)
Strategic Commodities Pty…

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 Citibank Ltd v Liu

Details

AGLC: Citibank Ltd v Liu [2003] NSWSC 569
Case: [2003] NSWSC 569
Decision Date: 25 June 2003

CaseChat Overview and Summary

Citibank Limited brought proceedings against Ms. Liu in the Supreme Court of New South Wales, seeking recovery of funds and damages for fraud. The dispute centred around allegations that Ms. Liu had defrauded Citibank through a series of transactions involving false representations regarding the sale of real estate. The bank claimed that Ms. Liu, acting either alone or in concert with others, misled the bank about the ownership and sale of properties, resulting in financial losses.

The court was required to determine several key legal issues. First, whether Ms. Liu had made representations that could be attributed to her personally, despite being an employee acting on behalf of a principal. Second, the court had to consider the causal link between the alleged misleading conduct and the financial losses suffered by Citibank. The bank needed to establish that the losses were a direct result of the fraudulent conduct. Third, the court needed to weigh the evidence presented, including an affidavit that was allowed to be read despite the deponent not attending for cross-examination, and determine the appropriate weight to be given to this evidence.

The court held that the representations made by Ms. Liu could be attributed to her personally, as she was acting within the scope of her employment but also had personal involvement in the fraudulent scheme. The court found that there was a sufficient causal link between the misleading conduct and the financial losses suffered by Citibank. It also determined that the affidavit in question, although not subject to cross-examination, could still be considered and given appropriate weight in the context of the overall evidence. Consequently, the court found in favour of Citibank on all counts, awarding damages and recovery of the misappropriated funds.

Orders