Li v So

[2019] VSC 515

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROPERTY LIST

S CI 2016 04256

HUA LI	Plaintiff
v
JOHN HONG PING SO	Defendant

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	16-19, 23 and 24 July, 1 August 2019
DATE OF JUDGMENT:	28 August 2019
CASE MAY BE CITED AS:	Li v So
MEDIUM NEUTRAL CITATION:	[2019] VSC 515

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EQUITY – Fiduciary Relationship – Where plaintiff and defendant invested in residential property as tenants in common – Where purchase of property secured by mortgage and guarantee – Where plaintiff denies she executed guarantees made in her name – Whether defendant allowed personal interest to conflict with fiduciary duty – Chan v Zachariah (1984) 154 CLR 178 – Whether defendant acted unconscionably – Kakavas v Crown (2013) 520 CLR 392 – Whether plaintiff subject to special disability or disadvantage - Where plaintiff claims loss of opportunity to pursue alternative investment – Account of profits – No special disability or disadvantage – No loss of opportunity – Claim dismissed.

EQUITY – Exercise of discretion – Illegality – Sections 21A and 26A Foreign Acquisitions and Takeovers Act 1975 (Cth) – Whether plaintiff was a foreign person whose presence in Australia was subject to a time limit imposed by law – Where plaintiff held a temporary resident visa – s30(2)(a) Migration Act 1958 (Cth) – Where plaintiff failed to provide compulsory notification to Treasurer – Plaintiff disentitled to equitable relief on account of illegality.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. McClelland QC and Mr A.M. Christophersen	HWL Ebsworth Lawyers
For the Defendant	Mr M.S. Osborne QC and Mr D. McAloon	B2B Lawyers

HIS HONOUR:

Introduction

1. The plaintiff, Hua “Eva” Li (“Ms Li”), seeks declaratory relief and relief in the nature of an account of profits made by the defendant, John Hong Ping So (“Mr So”), from the investment by the parties in a residential property located at 589 King St, West Melbourne (“the King Street Property”) or, alternatively, equitable compensation by reference to the value of Ms Li’s alleged lost opportunity to invest in a 2015 property development located at 23 Toolambool Rd, Carnegie (“the Carnegie Project”).

Key issues and position of the parties

1. The plaintiff submits that the key issues arising for determination in the proceeding are:

(a)whether the relationship between Mr So and Ms Li at the relevant times was a fiduciary relationship;

(b)whether Mr So allowed his personal interest to conflict with his duty as a fiduciary without obtaining Ms Li’s fully informed consent;

(c)whether Mr So’s conduct was in the circumstances unconscionable;

(d)whether Mr So is liable to account for profits resulting from his conduct;

(e)whether Ms Li is entitled to equitable compensation for the loss of a valuable opportunity as a result of Mr So’s conduct; and

(f)whether Mr So’s allegation of illegality should deny Ms Li equitable relief.

Moreover, the plaintiff contends that the determination of these key issues should be in favour of her position.

1. The…