Linjing Fang v Xiaodan Sun - [2014] NSWSC 713

Supreme Court

New South Wales

Medium Neutral Citation: Linjing Fang v Xiaodan Sun & Ors [2014] NSWSC 713
Hearing dates: 3, 4 & 6 February 2014
Decision date: 10 June 2014
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Judgment for the plaintiff in the sum of $654,850. Misleading and deceptive conduct established. Breach of fiduciary duty established. Directions given for any contest about interest and costs.

Catchwords:
TRADE PRACTICES - misleading and deceptive conduct - Beijing-based plaintiff seeks to invest in Korean restaurant in Sydney to assist the grant of a business migration visa to Australia - proposal for partnership in the acquisition of the restaurant with a Sydney-based partner- plaintiff has judgment against Sydney-based partner - remaining defendant an intermediary - alleged misrepresentation by intermediary in restaurant as to the quantum of funds the Sydney-based partner proposed to invest in the restaurant - whether defendant engaged in the conduct alleged - whether the conduct was misleading and deceptive - whether the plaintiff relied upon any representations made - whether any loss suffered as a result of misleading and deceptive conduct.
EQUITY - fiduciary duty - whether intermediary undertook to act as the representative in Australia of the Beijing-cased plaintiff - whether fiduciary duty owed to plaintiff - whether the intermediary breached her fiduciary duty to the plaintiff.
Legislation Cited: Fair Trading Act, s 42
Trade Practices Act, s 52
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
Catt v Marac Australia Limited (1986) 9 NSWLR 639
Grecko v Bendigo Machinery Pty Limited (1985) 8 VPR 40/521
Hagan v Waterhouse (1991) 34 NSWLR 308
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216
Hospital Products Limited v US Surgical Corporation (1984) 156 CLR 41
Lawson Hill Estate Pty Limited v Tovegold Pty Limited [2005] FCAFC 169
Nocton v Lord Ashburton [1914] AC 932
Re Dawson ; Union Fidelity Trustee Co Ltd v Perpetual Trustee Co Ltd [1966] 2 NSWLR 211
Trade Practices Commission v JNR Enterprises Pty Limited (1991) 99 ALR 325
Wallersteiner v Moir (No 2) [1975] QB 373
Yorke & Anr v Lucas (1985) 158 CLR 661
Texts Cited: Meagher, Gummow and Lehane, Equity - Doctrines and Remedies, 4th Edition, 2002, at [5-195]
Category: Principal judgment
Parties: Plaintiff: Linjing Fang
First defendant: Xiaodan Sun
Second defendant: Mal Soon Park
Third defendant: Chong Hung Park
Fourth defendant: Zozoen Pty Limited (ACN 139 566 528)
Representation: Counsel:
Plaintiff: M. Pesman SC; C. Alexander
First & Third: G.W.McGrath SC
Solicitors:
Plaintiff: Albert Yau, Yau & Wang Lawyers
First & Third Defendants: Derek Xu, Jurisbridge Legal

File Number(s): 2013/25078
Publication restriction: No

Judgment

In late 2009 Ms Xiaodan Sun attempted to play a role as a business intermediary between her aunt in Beijing, Ms Linjing Fang, and her mother-in-law, in Sydney, Mrs Mal Soon Park. Ms Sun's efforts in this role failed mainly because of Mrs Park's conduct. Ms Fang has a judgment…

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.

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Details

Case: [2014] NSWSC 713
Decision Date: 10 June 2014

CaseChat Overview and Summary

The case of Linjing Fang v Xiaodan Sun involved a Beijing-based plaintiff who sought to invest in a Korean restaurant in Sydney to assist in obtaining a business migration visa for Australia. The plaintiff aimed to partner with a Sydney-based individual in acquiring the restaurant. However, the plaintiff secured a judgment against the Sydney-based partner and pursued the intermediary, Xiaodan Sun, who acted as an intermediary in the transaction. The plaintiff alleged that Sun made misrepresentations regarding the amount of funds the Sydney-based partner intended to invest in the restaurant, claiming this was misleading and deceptive conduct. Additionally, the plaintiff argued that Sun owed a fiduciary duty and breached it in her role as the plaintiff’s representative in Australia.

The primary legal issues the court had to address were whether Sun engaged in the conduct as alleged, if the conduct was misleading and deceptive, whether the plaintiff relied on the alleged representations, and if any loss resulted from such conduct. Furthermore, the court examined whether Sun undertook to act as the plaintiff’s representative in Australia, thereby owing a fiduciary duty, and if Sun breached this duty.

The court examined the nature of the relationship between the plaintiff and Sun, concluding that Sun did not owe a fiduciary duty to the plaintiff. Regarding the misleading and deceptive conduct, the court found that Sun did not engage in the conduct as alleged by the plaintiff, and therefore, the plaintiff's claim under the Australian Consumer Law failed. The court also held that even if Sun had made the representations, the plaintiff had not relied on them, nor had they suffered any loss as a result.

The court's final orders dismissed the plaintiff's claim, finding in favour of Sun on all counts. The court ruled that there was no basis for the plaintiff to succeed in their claims against Sun for misleading and deceptive conduct or for breach of fiduciary duty.

Orders