Ling v Pang

The appeal concerned a dispute between the appellants, Ling and Pang, heard in the Court of Appeal of New South Wales. The core of the disagreement revolved around allegations of misleading and deceptive conduct, and the proper application of the *Jones v Dunkel* inference in relation to uncalled evidence.

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.