Jiang v Quach - [2000] NSWCA 147

NEW SOUTH WALES COURT OF APPEAL

CITATION: Jiang v Quach [2000] NSWCA 147

FILE NUMBER(S):
40860 of 1999

HEARING DATE(S): 14 June 2000

JUDGMENT DATE: 14/06/2000

PARTIES:
Qing-tian JIANG v John T M QUACH

JUDGMENT OF: Priestley JA Handley JA Clarke AJA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): Brownie AJ

LOWER COURT JUDICIAL OFFICER: 18282 of 1993

COUNSEL:
In person
(Appellant)

M J Hasset
(Solicitor)
(Respondent)

SOLICITORS:
In person
(Appellant)

Hassett Dixon
(Respondent)

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40860/99
CLD18282/93
PRIESTLEY JA
HANDLEY JA
CLARKE AJA
Wednesday 14 June 2000

Qing-Tian JIANG v John T M QUACH

JUDGMENT

PRIESTLEY JA: The Court is in a position to give judgment straight away. I will ask Clarke AJA to give his reasons first.
CLARKE AJA: The appellant sued the respondent to recover commission to which he claimed to be entitled as a result of the purchase by the respondent’s company of urea from a company or companies in the Soviet Union. Originally he claimed commission of $300,000 and fees for services rendered of $26,400, representing $300 per week for eighty-eight weeks, but on 27 April 1999, with leave, he filed an amended statement of claim in which he increased his claim for commission to $1,365,300 and abandoned his smaller claim for services.
In his defence, the respondent denied that the appellant provided services and denied that he or his company, Semvilar Pty Limited (Semvilar), purchased any urea. Although he was ordered to file an amended statement of defence, none appears in the papers and it is clear that the trial judge dealt with the case on the basis of the issues as to commission raised in the original defence.
The case was heard by Brownie AJ on 3 and 4 November 1999, on the latter of which days he gave his judgment. At the hearing, the appellant appeared in person and it is clear that his Honour had some difficulty in extracting from the appellant the whole of the evidence on which he wished to rely but it seems to me from a reading of the judgment itself that his Honour ensured that the appellant had been afforded every opportunity to present his case.
The course taken in the trial is best demonstrated by reciting the first three paragraphs of the judgment.
“1. The plaintiff sues the defendant for commission. On the plaintiff’s case, there was a contract made between himself and the defendant on 10 December 1990 containing provisions that the plaintiff would be employed by a company controlled by the defendant called Semvilar Pty Limited as general manager of that company; that the plaintiff would procure the purchase of the urea from what was then the Soviet Union; and that the defendant would pay or procure the payment to the plaintiff of a commission of $1 per tonne of urea that Semvilar purchased.
2. There is, it seems, a dispute…

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 Jiang v Quach

Details

AGLC: Jiang v Quach [2000] NSWCA 147
Case: [2000] NSWCA 147
Decision Date: 14 June 2000

CaseChat Overview and Summary

This case concerned an appeal by the appellant, Jiang, against a decision of the trial court. The dispute revolved around the admissibility of certain documentary evidence and the trial judge's acceptance of the respondent's evidence over that of the appellant.

The primary legal issues before the appellate court were whether the trial judge erred in admitting certain evidence presented by the respondent and rejecting evidence sought to be relied upon by the appellant. Specifically, the court considered the admissibility of a document under the business records exception to the hearsay rule and the extent to which an appellate court could overturn a trial judge's findings of fact based on the observation of witnesses.

The court reasoned that the document in question, a letter, was inadmissible as a business record because it was created for the purposes of the litigation at the request of the appellant. The court found it unnecessary to consider arguments about the probative weight of the document, as its inadmissibility was determinative. Regarding the grounds of appeal challenging the trial judge's acceptance of the respondent's evidence, the court noted the high threshold for overturning findings of fact based on witness observation, particularly when the trial judge had the opportunity to assess credibility. The court also highlighted that the trial judge was required to weigh sworn evidence against hearsay material that was described as general, unclear, and ambiguous.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

There is also reliance upon the business record exception but that only applies in respect of documents which do not come into existence for the purposes or in contemplation of litigation. I am prepared to accept for the moment that all the other conditions of the business records exception apply but that does not help the appellant, because it is clear from the history I have recorded that this document came into existence consequent upon a request made by the appellant, being a request made for the purposes of establishing his case in this litigation. In my view, this cannot be received as a business record pursuant to the exceptions in the Evidence Act. I should add that Mr Hassett also submitted that the letter was not of a highly probative nature and did not have the necessary weight to overcome the evidence which had been sworn to in the trial. It is, in my view, unnecessary to deal with that submission, because the documents and the statements in those documents are not admissible and there is no purpose in granting leave for them to be relied on in the appeal. I turn then to the grounds of appeal. The first two grounds are interlocked and, although they are expressed in terms of wrongful admission or wrongful rejection, I would read them as being directed to his Honour's acceptance of the respondent's evidence in preference to that of the appellant. It is said by the appellant that his Honour was wrong to do that, or to take that course. There is preliminary difficulty with the submission, in that his Honour has clearly accepted the denial of the respondent, having seen him give evidence and be cross-examined. The authorities make it clear that there are only rare cases which a court on appeal can reverse a finding based upon the observation of a witness who gave evidence in the trial. Leaving that to one side, his Honour was required to balance the sworn evidence against hearsay material that at times was general, at times not entirely clear and at times rather ambiguous. Let me expand. The evidence upon which most reliance was placed was the evidence of Mr Bulgak, who did enter the witness box. He was a Russian who spoke on the telephone to a Mr Panteleev, who was described as the Deputy Director of the firm Carbamide in Moscow. I should interpose the observation that the description of a firm as Carbamide appears more than once in the appeal papers but it would seem that it was a company that had a relationship with Agro Chim Export. According to Mr Bulgak, he asked Mr Panteleev to confirm whether or not his company had supplied Semvilar with urea from 1991 to 1993 in accordance with the contracts. He said that Mr Panteleev confirmed that the amount of urea supplied by his company under the contract was 20,000 metric tonnes. This evidence appears in a typewritten statement, on which has been written the words “a written confirmation he did not send”. Mr Bulgak was cross-examined and in fact had made another statement which amplified somewhat what Mr Panteleev said. In that statement, he recorded the official as saying:“We signed only one official contract with Semvilar for 20,000 MT of urea for the rest are unofficial. If we strictly according to the facts confirm the authentic amount of urea we supply to Semvilar, then it will be tantamount to pronounce ourselves guilty, to hurl ourselves willingly into the net, so I confirm only the official contract of 20,000 MT of urea supplied to Semvilar Pty Limited.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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