Gang v You - [2024] ACTCA 37

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Gang v You
Citation:	[2024] ACTCA 37
Hearing Date:	15 May 2023
Decision Date:	19 December 2024
Before:	McCallum CJ, Loukas-Karlsson and O’Sullivan JJ
Decision:	(1) Dismiss the appeal. (2) Order the appellant to pay the respondent’s costs. (3) Discharge the first respondent from his undertakings given to the Court on 6 August 2018.
Catchwords:	APPEAL – CIVIL – CONTRACT – where appellant claimed to have entered into merger agreement with respondent – oral agreement – whether primary judge erred in not accepting appellant’s evidence APPEAL – EQUITY – where solicitor retained by respondent to act on conveyance – whether solicitor also acted for appellant – whether primary judge erred in factual findings concerning sale of house
Legislation Cited:	Court Procedure Act 2006 (ACT) s 5A Court Procedure Rules 2006 (ACT) r 5403 Evidence Act 2011 (ACT) s 136 Supreme Court Act 1933 (ACT) ss 37E, 37O
Cases Cited:	Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Fox v Percy [2003] HCA 22; 214 CLR 118 Ryan v Bunnings Group Ltd [2020] ACTSC 353 Watson v Foxman (1995) 49 NSWLR 315
Texts Cited:	Practice Direction 1 of 2016, ACT Supreme Court
Parties:	Yeong Suk Gang ( Appellant) Jin Ho You ( First Respondent) Colquhoun Murphy Pty Ltd Trading as Colquhoun Murphy Lawyers (Second Respondent)
Representation:	Counsel Mr T Crispin ( Appellant) Mr B Buckland ( First Respondent) Mr A Muller (Second Respondent)
Solicitors Jacobs Legal ( Appellant) Mills Oakley ( First Respondent) Moray & Agnew (Second Respondent)
File Number:	ACTCA 63 of 2021
Decision Under Appeal:	Court: ACT Supreme Court Before: Crowe AJ Date of Decision: 15 December 2021 Case Title: Gang v You (No 3) Citation: [2021] ACTSC 318 Court File Number: SC 430 of 2018

THE COURT:

Introduction

1․Yeong Suk Gang brought proceedings in the Supreme Court arising out of his dealings with Jin Ho You. Both men are Korean. Mr Gang is a tiler by trade. His company, CU Tiling Pty Ltd, had performed contract work for Mr You’s construction company, JY Contractors Pty Ltd, since about 2015. Mr Gang contends that, in February or March 2017, Mr You approached him with a suggestion that the two companies should join. He says that proposal was discussed a few times before agreement on terms was reached at a business dinner in a Chinese Restaurant in late March 2017. There is no written record or evidence of the agreement.
2․Mr You gives a very different account of those dealings. In 2016, Mr You became aware through complaints from tilers working for Mr Gang’s company about not being paid and that the company appeared to be in financial difficulty. He was aware that those employees included workers sponsored on s 457 “skilled migrant” visas (meaning their entitlement to remain in Australia and achieve permanent residency depended on their continued employment). On Mr You’s version, his dealings with Mr Gang in early March 2017…

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 Gang v You

Details

AGLC: Gang v You [2024] ACTCA 37
Case: [2024] ACTCA 37
Decision Date: 19 December 2024

CaseChat Overview and Summary

The appeal concerned a dispute arising from an alleged oral merger agreement between the appellant and the respondent. The appellant also raised issues regarding the sale of a house, alleging that the solicitor retained by the respondent to act on the conveyance had also acted for the appellant, and that the primary judge had erred in factual findings related to this sale. The matter was heard by McCallum CJ, Loukas-Karlsson and O’Sullivan JJ.

The court was required to determine whether the primary judge had erred in accepting the respondent's evidence and rejecting the appellant's evidence regarding the existence of the merger agreement. Furthermore, the court had to consider whether the primary judge's factual findings concerning the sale of the house were erroneous, particularly in relation to the solicitor's dual representation.

The appellate court found no error in the primary judge's factual findings. The court applied principles of contract law and equity, emphasizing the importance of assessing the credibility of witnesses and the weight of evidence presented. The court concluded that the primary judge had properly considered all relevant evidence and applied the correct legal principles in reaching her conclusions regarding both the alleged merger agreement and the property sale.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs. The first respondent was also discharged from undertakings given to the Court on 6 August 2018.

Orders

Orders of the court

(1) Dismiss the appeal.

(2) Order the appellant to pay the respondent’s costs.

(3) Discharge the first respondent from his undertakings given to the Court on 6 August 2018.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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