Hurst Iii v Zhang

Case [2025] QCA 159

SUPREME COURT OF QUEENSLAND

CITATION:

Hurst III v Zhang [2025] QCA 159

PARTIES:

AL WILBERFORCE HURST III
(appellant)
v
YUN ZHANG
(respondent)

FILE NO/S:

Appeal No 11053 of 2024
DC No 374 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Southport – Unreported, 26 July 2024 (Jackson KC DCJ)

DELIVERED ON:

29 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

11 June 2025

JUDGES:

Mullins P and Boddice JA and Sullivan J

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

GIFTS – GIFTS INTER VIVOS – ESSENTIALS OF PERFECT GIFTS – IN GENERAL – where the appellant and the respondent were romantically involved – where the appellant transferred $99,997.21 on 2 March 2021 and $99,037.03, on 13 March 2021 to the respondent – where the appellant sought to recover the two payments from the respondent at trial – where the trial judge found the payments to be gifts – whether the trial judge erred by in law by not considering whether the respondent intended to accept the gift

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS BASED ON CREDIBILITY OF WITNESSES – NECESSITY FOR FINDING TO BE CLEARLY WRONG – where the trial judge made findings based on their impression of the appellant and respondent as witnesses – where the trial judge preferred the respondent’s oral evidence as to the circumstances of the first payment – where the appellant challenges the trial judge’s finding that the appellant expressly told the respondent the first payment was a gift – where the appellant submits the trial judge’s findings are inconsistent with contemporaneous text messages – whether the trial judge erred in preferring the respondent’s evidence, and forming a negative impression of the appellant’s reliability and credibility

GIFTS – GIFTS INTER VIVOS – ESSENTIALS OF PERFECT GIFTS – IN GENERAL – where the appellant submits that there was no oral or written evidence relating to the second payment that expressly stated it was a gift – whether the trial judge erred in fact by concluding the appellant had made a clear statement of intention to gift the second payment

GIFTS – GIFTS INTER VIVOS – CONDITIONAL GIFTS – where the appellant had no pleaded case at trial that the gifts were conditional – where the appellant submits the two payments are correctly characterised as conditional gifts as a matter of inference – where the respondent said she would return the payments if she doubled or tripled them by Christmas – where the trial judge preferred the respondent’s evidence as to statements made about the payments – whether the trial judge erred in failing to find the two transfers were conditional gifts

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the trial judge did not consider restitution because the payments were a gift –…

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Hurst Iii v Zhang [2025] QCA 159
Case
[2025] QCA 159
Decision Date

CaseChat Overview and Summary

In the case of Hurst III v Zhang, the appellant sought to recover two payments made to the respondent on the basis that they were gifts. The trial judge determined that the payments were gifts and dismissed the appellant's claims. The appellant appealed the decision, arguing that the trial judge erred in finding the payments were gifts, did not consider the possibility of restitution, and failed to consider relevant evidence. The Court of Appeal found that the appellant's appeal was not well-founded and dismissed it with costs.

The central legal issues in this appeal were whether the trial judge erred in finding the payments were gifts, whether the trial judge should have considered restitution, and whether the trial judge erred in failing to consider relevant evidence. The Court of Appeal found that the trial judge did not err in finding the payments were gifts, as the evidence supported the trial judge's conclusion. The Court also found that the trial judge did not err in failing to consider restitution, as the appellant's case was based on the assumption that the payments were gifts. Finally, the Court found that the trial judge did not err in failing to consider the evidence of previous payments made to the respondent by third parties, as this evidence was not relevant to the issues in the case.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

The appeal no longer pursued the contractual or trust contentions. The appeal sought to advance restitutionary causes of action, but in an unpleaded form which was materially different to the pleaded case which had been run at trial. The appellant also sought to run an unpleaded contention that each of the payments was a conditional gift and each condition had not been fulfilled.Background facts, evidence and trial judge’s reasons The appellant and the respondent were introduced to each other by a mutual friend in early 2021. When they met, the appellant informed the respondent that he could assist her in learning how to make money by trading stocks on the stock exchange. Between 6 January 2021 and 2 March 2021, various oral conversations occurred, and written text messages were exchanged, which included the appellant providing the respondent with his opinions and advice on how to trade profitably. At around 12 February 2021, the appellant commenced expressing his attraction to the respondent. This expression of attraction was reciprocated and various text messages of an intimate nature continued to be exchanged after this date. The appellant and the respondent became romantically involved. Prior to 2 March 2021, the respondent had raised with the appellant her wish to buy her dream car. In the early morning of 2 March 2021, the appellant told the respondent by text that he had earnt $7 million on Wall Street overnight, and stated:“…And, I thought I’d buy your new car for You- Butt, There’d be some “Strings.”.…Not just anal sex - butt, some Market Targets For You, Too….…”[1][1]Text messages; ARB Vol 2, p. 258. Later, on 2 March 2021, the appellant texted the respondent and asked for her bank account details. By return text, the respondent provided the details. On 2 March 2021, the appellant transferred the first payment to the respondent. The bank receipt stated, “Do NOT Get The Car Until We TALK”. On the appellant’s case, he called the respondent a few hours after he transferred the first payment. The trial judge found that the appellant gave inconsistent evidence as to what the appellant claimed he had said in this call. In one version, the appellant said he hinted at there being two or three conditions. In another, the appellant said he first raised the issue of the first payment being seed funds. In another version, he said he would elaborate on the conditions in person. The trial judge noted that nothing of this conversation formed part of the pleaded case. On 5 March 2021, a dinner occurred at which the appellant, the respondent and the respondent’s teenage daughter were present. It was at this dinner, on the appellant’s evidence, that he said the Terms of the Advance had been articulated to the respondent and the respondent had allegedly agreed or acquiesced to the terms. The respondent’s evidence was to the effect that at the dinner on 5 March 2021, the appellant persuaded her not to buy a car, or at least not immediately, and to use the first payment to buy shares instead. The respondent gave evidence that she was very excited, and that the appellant had guaranteed that she would make double or triple the amount of the payment.

Evidence

Evidence Before The Court

This grouping is put forward simply as an alternative form of relief. It requires the appellant to succeed on one of the other groupings of grounds which I have identified. As the appellant has not succeeded under any of those groupings of grounds, then this grouping must also fail.Evidence (Grounds 11 and 12) This grouping of grounds related to the trial judge’s finding that certain evidence would not assist in determining the proceeding. That evidence was:(a)that the respondent’s friend, a Mr Gilson, had previously transferred $45,000 to the respondent to invest in shares and, although the respondent gave evidence that Mr Gilson could seek return of the money, the respondent had not returned the funds; and(b)the respondent’s ex-fiancé, Mr Guan, had purchased a property in the name of the respondent for $1.8 million and had to institute proceedings to recover that property. It was contended that the trial judge had erred in failing to have regard to this evidence. It was contended by the appellant the evidence was relevant as circumstantial or similar fact evidence which reinforced the inference that, as at the time of the two payments, the appellant was mistaken as to the respondent’s intention. It was submitted that just like with Mr Gilson’s investment funds and her ex-fiancé’s payment for her house, the respondent did not intend on returning the money. Those contentions ought to be rejected. The evidence was not probative of the matters identified. The mere raising of the existence of such unpleaded and unresolved collateral disputes between the respondent and third parties in respect of unrelated transactions cannot speak to the state of mind of the appellant at the time of the two payments. The learned trial judge was right in his conclusion that these collateral matters did not assist in determining the matters in dispute between the parties in the current proceedings.Conclusions For those reasons the appeal ought to be dismissed with the appellant paying the respondent’s costs of the appeal.

Decision

Reasons for decision

The learned trial judge was right in his conclusion that these collateral matters did not assist in determining the matters in dispute between the parties in the current proceedings.Conclusions For those reasons the appeal ought to be dismissed with the appellant paying the respondent’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.