Liu v Chan

Case [2020] QCA 25

SUPREME COURT OF QUEENSLAND

CITATION:

Liu v Chan & Ors [2020] QCA 25

PARTIES:

CHENG BIN LIU
(appellant)
v
STANLEY KIN CHAN
(first respondent)
AMY SIU MAN SHUM
(second respondent)
AE DEVELOPMENTS PTY LTD
ACN 136 649 502
(third respondent)
LC INTERNATIONAL CORPORATION PTY LTD
ACN 136 885 704
(fourth respondent)
CMO HOLDINGS PTY LTD
ACN 139 314 060
(fifth respondent)

FILE NO/S:

Appeal No 13017 of 2019
SC No 7428 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 20 November 2019 (Bradley J)

DELIVERED ON:

21 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2020

JUDGES:

Fraser and Morrison JJA and Boddice J

ORDERS:

1.   Allow the appeal to the extent only of varying the orders made in the Trial Division by adding an order that orders 1 – 6 do not preclude the plaintiff from adducing evidence at the trial (including by way of the addition to the list of agreed facts for the trial of an agreed fact) that the plaintiff and first defendant conducted without prejudice negotiations in an attempt to resolve their disputes between dates in October and November 2014 which may be specified or otherwise identified, including by reference to the time of any other event.

2.   Otherwise the appeal is dismissed.

3.   The appellant is to pay the respondents’ costs of the appeal.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – EXCLUSIONS: PRIVILEGES – PUBLIC INTEREST PRIVILEGE – SETTLEMENT NEGOTIATIONS – where the plaintiff transferred large sums of money to the first defendant – where the plaintiff demanded the return of that money because he alleged the first defendant had not applied it for the specified purposes – where the defendants allege that the parties agreed in January 2014 that the first defendant would transfer $300,000 to the plaintiff in full and final satisfaction of all claims between the parties – where the plaintiff alleges no such agreement was reached in January 2014 – where the plaintiff and the first defendant conducted negotiations in October and November 2014 in an unsuccessful attempt to resolve their disputes – whether evidence of the negotiations in October and November 2014 is subject to without prejudice privilege – whether the defendants waived the privilege by pleading that the parties had compromised the plaintiff’s claims against the defendants in January 2014 – whether the court would be misled if the communications were not permitted to be adduced in evidence at the trial – whether the use of the communications was permissible to ascertain whether a binding agreement was reached in January 2014

Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647; [1908] HCA 88, cited
Field v Commissioner for Railways (NSW) (1957) 99 CLR 285; [1957] HCA 92, cited
Harrington v Lowe (1996) 190 CLR 311; [1996] HCA 8, cited
Hoefler v Tomlinson (1995) 60 FCR 452; [1995] FCA 1650, cited
Howard Smith & Co Ltd v…

Continue reading Liu v Chan

Sign in free to access the full text

Details
AGLC
Liu v Chan [2020] QCA 25
Case
[2020] QCA 25
Decision Date

CaseChat Overview and Summary

In Liu v Chan, the plaintiff sought to recover money transferred to the first defendant, alleging that it had not been used for the agreed purposes. The defendants claimed that the parties had reached an agreement in January 2014, where the first defendant was to transfer $300,000 to the plaintiff as full and final satisfaction of all claims. The plaintiff denied that such an agreement had been reached. The defendants argued that communications between the parties in October and November 2014 were protected by without prejudice privilege and should not be admitted as evidence. The court was required to decide whether these communications were subject to without prejudice privilege, whether the privilege was waived by the defendants, and whether the court should be permitted to consider the communications to ascertain whether a binding agreement was reached in January 2014.

The court found that the privilege was not waived by the defendants' pleadings and that the communications were subject to without prejudice privilege. However, the court held that the privilege did not preclude the plaintiff from adducing evidence of the negotiations if it was relevant to determine whether a binding agreement was reached in January 2014. The court concluded that the Trial Division had erred in precluding the plaintiff from adducing such evidence and allowed the appeal to the extent of varying the orders to permit the plaintiff to adduce evidence of the negotiations.

The appeal was otherwise dismissed, and the plaintiff was ordered to pay the respondents’ costs of the appeal. The court emphasised the importance of determining the existence of a binding agreement in January 2014 and the need for the plaintiff to be able to adduce evidence relevant to that determination. The court's decision clarified the scope of without prejudice privilege and the circumstances in which evidence of negotiations may be adduced in proceedings.

Orders

Orders of the court

1. Allow the appeal to the extent only of varying the orders made in the Trial Division by adding an order that orders 1 – 6 do not preclude the plaintiff from adducing evidence at the trial (including by way of the addition to the list of agreed facts for the trial of an agreed fact) that the plaintiff and first defendant conducted without prejudice negotiations in an attempt to resolve their disputes between dates in October and November 2014 which may be specified or otherwise identified, including by reference to the time of any other event.

2. Otherwise the appeal is dismissed.

3. The appellant is to pay the respondents’ costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.