Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Ling v Pang [2023] NSWCA 112 Hearing dates: 30 March 2023 Date of orders: 26 May 2023 Decision date: 26 May 2023 Before: Leeming JA at [1];
Mitchelmore JA at [2];
Kirk JA at [3]Decision: Appeal dismissed with costs.
Catchwords: APPEALS — From finding of fact — Inferences from primary facts — Jones v Dunkel inference — Whether expected or natural for the party in question to have called a particular witness — Uncalled evidence would not have assisted a party’s case — Not natural to expect one party to call unrelated party to testify as to matters touching upon the latter’s possible fraud — Jones v Dunkel inference would not advance judicial reasoning in any material way in any event
APPEALS — From finding of fact — Clear, unchallenged and plausible evidence that respondent would not have falsely witnessed execution of documents — Persuasive evidence required to make out the contrary proposition
CONSUMER LAW — Alleged misleading or deceptive conduct — Appellants bore onus of establishing what would have happened but for the misleading and negligent conduct — Evidence of what a professional adviser would have done does not establish what the decision-maker would have done — Principal previously acted against professional advice in relation to the loan
Cases Cited: Fabre v Arenales (1992) 27 NSWLR 437
Gawne v Gawne [1979] 2 NSWLR 449
Graham v Hall (2006) 67 NSWLR 135; [2006] NSWCA 208
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Manly Council v Byrne [2004] NSWCA 123
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
Owners - Strata Plan 87265 v Saaib [2022] NSWCA 63
Payne v Parker [1976] 1 NSWLR 191
Tozer Kemsley & Millbourn (Australasia) Pty Ltd v Collier's Interstate Transport Service Ltd (1956) 94 CLR 384; [1956] HCA 6
Category: Principal judgment Parties: Kuo Shu Ling (First Appellant)
Chuan Dian International Trade Co Ltd (Second Appellant)
Oliver Pang (trading as O Pang & Co) (Respondent)Representation: Counsel:
B A Coles KC and D P O’Connor (First and Second Appellants)
D Lloyd SC and C Coventry (Respondent)Solicitors:
Pinnacle Lawyers (First and Second Appellants)
DLA Piper Australia (Respondent)
File Number(s): 2022/181653 Publication restriction: N/A Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Equity
- Citation:
- Date of Decision:
- 30 May 2022
- Before:
- Ward CJ in Eq
- File Number(s):
- 2018/00012504
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellants advanced sums of $200,000 and $700,000 by way of loan to Beyond Development Group Pty Ltd. Two Loan Agreements were executed to document these loans. Mr Zhuang was a director of Beyond Development. The Loan Agreements provided that each of Mr Zhuang and his wife, Ms Wang, was a guarantor…
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- AGLC
- Ling v Pang [2023] NSWCA 112
- Case
- [2023] NSWCA 112
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the primary judge erred in finding that the respondent had not engaged in misleading or deceptive conduct. Specifically, the court had to consider whether the *Jones v Dunkel* inference, which allows an adverse inference to be drawn from a party’s failure to call a witness, was applicable and would have assisted the appellants’ case. Furthermore, the court needed to assess whether the evidence presented was sufficient to establish that the respondent had falsely witnessed the execution of documents, and whether the appellants had discharged their onus of proving what would have occurred had the alleged misleading conduct not taken place.
The Court of Appeal reasoned that the *Jones v Dunkel* inference was not applicable because it would not have advanced the judicial reasoning in any material way. It was not natural to expect one party to call an unrelated party to testify about matters touching upon that unrelated party’s potential fraud. The court found that there was clear, unchallenged, and plausible evidence that the respondent would not have falsely witnessed the execution of documents, and that persuasive evidence would have been required to establish the contrary. Regarding the consumer law claim, the court held that the appellants bore the onus of establishing what would have happened but for the alleged conduct, and that evidence of what a professional adviser would have done did not establish what the decision-maker would have done, particularly as the principal had previously acted against professional advice concerning the loan.
Consequently, the appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
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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