BETWEEN: YIMING LIU
Plaintiff
AND
GRAHAM PHILIP HARRIS
First Defendant
PRIMESTAR ENTERPRISES PTY LTD
Second Defendant
LONEPINE ENTERPRISES PTY LTD
Third Defendant

Catchwords:

Contract - Construction - Land subdivision projects - Profit division issues - Accounting issues - Corporate vehicles - Fiduciary relationship alleged - Three projects - Two completed - Land purchased - Third project not completed

Legislation:

Corporations Act 2001 (Cth), s 232, s 233

Result:

Judgment for plaintiff
Defendants' counterclaim dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr G D Cobby
First Defendant             :     Mr R J Nash
Second Defendant         :     Mr R J Nash
Third Defendant           :     Mr R J Nash

Solicitors:

Plaintiff:     Tang Legal
First Defendant             :     Clifton Tham
Second Defendant         :     Clifton Tham
Third Defendant           :     Clifton Tham

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

AMEV‑UDC Finance Ltd v Austin [1986] HCA 63; (1986) 162 CLR 170
Ashburton Oil NL v Alpha Minerals NL (1971) 123 CLR 614
Codelfa Construction v State Rail Authority (NSW) (1982) 149 CLR 337
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1
Fazio v Fazio [2010] WASC 263
Fazio v Fazio [2012] WASCA 72
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Government Employees Superannuation Board v Martin (1997) 19 WAR 224
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2012] WASCA 216
Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co NL (1968) 121 CLR 483
Homestake Australia Ltd v Metana Minerals NL (1991) 11 WAR 435
Howard Smith Ltd v Ampol Petroleum Ltd [1974] AC 821
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd; Walker Corp Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1
JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA 16
McCourt v Cranston [2012] WASCA 60
Ngurli Ltd, Carinya Ltd, Fitzroy Ltd & Myall Ltd v McCann (1953) 90 CLR 425
Redhill Iron Ltd v API Management Pty Ltd [2012] WASC 323
Saraceni v Mentha [No 2] [2012] WASC 336
United Dominions Corporation Ltd v Brian [1985] HCA 49; (1985) 157 CLR 1
Western Exports Services Inc v Jireh [2011] HCA 45
Whitehouse v Carlton Hotel Pty Ltd (1987) 162 CLR 285

Table of Contents

Introduction
Overview of the main issues
Sources of evidence at trial
The plaintiff's evidence

Mr Liu's evidence
The defendants' evidence
Graham Harris' evidence

The Gosnells Agreement: written component

Observations as to the written part of the Gosnells Agreement

Lake Clifton Agreement: the pleadings

Observations concerning clauses in the Lake Clifton contract

Resolution of the essential issue: Lake Clifton

18 July 2006 Lake Clifton contract
Analysis: Lake Clifton - Cap/residue profit agreements

The alleged fiduciary relationship
Deferred issues
The Swan View Agreement between Mr Liu and…

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 Liu v Harris

Details

AGLC: Liu v Harris [2013] WASC 58
Case: [2013] WASC 58
Decision Date: 1 MARCH 2013

CaseChat Overview and Summary

The case of Liu v Harris involved a dispute concerning the construction and division of profits from three land subdivision projects. The plaintiff, Liu, alleged that he had entered into agreements with the defendant, Harris, and his company, relating to these projects, and claimed that Harris had breached their fiduciary duties and failed to properly account for profits. The case was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether there was a fiduciary relationship between the parties, whether Harris had breached any fiduciary duties, and whether Liu was entitled to an accounting of profits from the projects. The court also had to determine the status of the land purchased for the third project, which was not completed.

The court found that while there was a contractual relationship between the parties, there was no fiduciary relationship as claimed by Liu. The court also found that Harris had not breached any fiduciary duties. Regarding the accounting of profits, the court held that Liu was not entitled to an accounting from Harris. The court concluded that the land purchased for the third project was owned by Harris and not subject to any claim by Liu.

The court dismissed Liu's claims and ordered him to pay Harris's costs.

Orders