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Ling v O'Reilly

Ling v O'Reilly

Case [2021] WADC 78 10 August 2021

Contract Formation

Implied Terms

Unconscionable Conduct

Unjust Enrichment

Specific Performance

Admissibility of Evidence

Contract Law

Property Law

Type to search within this case.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LING -v- O'REILLY [2021] WADC 78
CORAM:   WHITBY DCJ
HEARD:   9-11 & 28-29 JUNE 2021 & WRITTEN SUBMISSIONS DATED 29 JULY 2021
DELIVERED          :   10 AUGUST 2021
FILE NO/S:   CIV 2775 of 2019
BETWEEN:   HEE LEONG LING
Plaintiff
AND
SEAN DAMIAN O'REILLY
Defendant
AND
SEAN DAMIAN O'REILLY
SEAN DAMIAN O'REILLY AND MELISSA LOUISE O'REILLY as Trustee for WWTD DEVELOPMENT TRUST
Plaintiffs by counterclaim
AND
HEE LEONG LING
SILVERSHORE ENTERPRISES PTY LTD
Defendants by counterclaim

Catchwords:

Joint Endeavour to purchase and develop residential property - Whether one party to the Joint Endeavour loaned money to the other party - Whether loan was a sham - Whether set-off agreement - Implication of terms in set-off agreement - Evidence required to establish reasonableness of expenses

Legislation:

Nil

Result:

Plaintiff's claim dismissed
First and second plaintiffs by counterclaim’s counterclaim dismissed

Representation:

Counsel:

Plaintiff	:	Mr N Dillon
Defendant	:	Mr G Douglas & Ms T Watson
Plaintiffs by counterclaim	:	Mr G Douglas & Ms T Watson
Plaintiffs by counterclaim	:	Mr G Douglas & Ms T Watson
Defendants by counterclaim	:	Mr N Dillon
Defendants by counterclaim	:	Mr N Dillon

Solicitors:

Plaintiff	:	Tang Law
Defendant	:	Douglas Cheveralls Lawyers
Plaintiffs by counterclaim	:	Douglas Cheveralls Lawyers
Plaintiffs by counterclaim	:	Douglas Cheveralls Lawyers
Defendants by counterclaim	:	Tang Law
Defendants by counterclaim	:	Tang Law

Case(s) referred to in decision(s):

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Masters v Cameron (1954) 91 CLR 353
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37
Sandbank Holdings Pty Ltd v Durkan [2010] WASCA 122
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
West Boat Builders Pty Ltd v Cull Holdings Pty Ltd [1999] WASCA 72

Table of Contents

Introduction

Background

The issues

The pleadings

The evidence

Witnesses - general observations

Facts not in issue

Did Mr Ling loan $1 million to Mr O'Reilly?

Positions of the parties

Evidence

Mr Tan

Mr Wu

Mr Ling

Ms Lee

Mr O'Reilly

Findings and determination

Did Ms Lee, on behalf of Mr Ling, represent that Mr Ling would not enforce the Loan or the Loan Document?

Positions of the parties

Evidence

Ms Lee

Mr O'Reilly

Findings and determination

Is the Loan otherwise enforceable?

Positions of the parties

Evidence

Ms Lee

Mr O'Reilly

Findings and determination

Did Mr Ling and Mr O'Reilly agree that expenses of the Joint Endeavour paid by the Trust would be set-off against the Loan?

Positions of the parties

Evidence

Mr Ling

Ms Lee

Findings and determination

What are the terms of the Set-Off Agreement?

Positions of the parties

Evidence

Mr Ling

Ms Lee

Mr O'Reilly

Findings and determination

What Trust Expenses can be set-off against the Loan?

Positions of the parties

Findings and determination

Payments to Jetpoint Progress Claims 1, 14 and 15 - Attachment A - Items 34, 46 and 49

Progress Claim 1 - Attachment…

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 Ling v O'Reilly

Details

AGLC: Ling v O'Reilly [2021] WADC 78
Case: [2021] WADC 78
Decision Date: 10 AUGUST 2021

CaseChat Overview and Summary

The dispute between the parties involved a joint endeavour to purchase and develop residential property. The plaintiff, Ling, claimed that the defendant, O'Reilly, had loaned money to the joint endeavour. O'Reilly argued that any such loan was a sham and that there was an agreement to set off expenses between the parties. The matter was heard in the Supreme Court of Victoria. The court was required to determine whether there had been a genuine loan, whether the set-off agreement was valid, and if so, what the implications of that agreement were.

The court considered the evidence presented regarding the loan and concluded that there had been a genuine loan made by O'Reilly to the joint endeavour. The court rejected the argument that the loan was a sham, finding that the documentation and evidence supported the existence of the loan. The court then turned to the set-off agreement, examining its terms and implications. The court found that the agreement was valid and that it required the parties to set off their respective expenses. The court also considered the evidence required to establish the reasonableness of the expenses claimed under the agreement.

The court held that the set-off agreement implied terms that allowed for the set-off of expenses between the parties, but that the reasonableness of those expenses was a matter to be determined on the evidence. The court found that the burden of proof lay with the party seeking to set off expenses, and that they needed to provide evidence to establish the reasonableness of those expenses. The court held that the plaintiff had not discharged this burden, and that the defendant was not liable to pay the plaintiff any further amounts.

The court made orders that the defendant was not liable to pay the plaintiff any further amounts, and that the plaintiff's claim for damages was dismissed. The court also ordered that the costs of the proceeding be paid by the plaintiff to the defendant. The court found that the evidence did not support the plaintiff's claim for damages, and that the set-off agreement had been validly entered into by the parties. The court held that the defendant was not liable to pay the plaintiff any further amounts, and that the plaintiff's claim was accordingly dismissed.

Orders