FEDERAL COURT OF AUSTRALIA
Liu v Option Funds Management Limited [2022] FCA 444
File number: NSD 1212 of 2020 Judgment of: WIGNEY J Date of judgment: 11 April 2022 Catchwords: PRACTICE AND PROCEDURE – application for leave to adduce evidence via video link from China – power to direct testimony by video link, audio link or other appropriate means in s 47A(1) of Federal Court of Australia Act 1976 (Cth) – Court to consider what is in the best interests of the administration of justice – where second plaintiff’s evidence was relatively uncontentious and peripheral – considerations of the second plaintiff’s serious state of health, travel restrictions and threat of COVID-19 – leave granted Legislation: Australian Securities and Investments Commission Act 2001 (Cth)
Corporations Act 2001 (Cth)
Federal Court of Australia Act 1976 (Cth), ss 47A(1), 47C
Civil Procedure Law of the People’s Republic of China, art 284
Cases cited: Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd [2014] FCA 544
Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153
Joyce v Sunland Waterfront (BVI) Limited & Anor (2011) 195 FCR 213; [2011] FCAFC 95
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 50 Date of hearing: 11 April 2022 Counsel for the Plaintiffs: Mr J Hewitt Solicitor for the Plaintiffs: Sunfield Chambers Solicitors & Associates Counsel for the Defendants: Mr N Li Solicitor for the Defendants: Baker McKenzie ORDERS
NSD 1212 of 2020 BETWEEN: HUA LIU
First Plaintiff
YUQING ZHU
Second Plaintiff
AND: OPTION FUNDS MANAGEMENT LIMITED ACN 154 912 768
First Defendant
HOWARD HAO TING CAO
Second Defendant
ORDER MADE BY:
WIGNEY J
DATE OF ORDER:
11 APRIL 2022
THE COURT ORDERS THAT:
1.The second plaintiff be permitted to give evidence at the trial via video link from the People’s Republic of China.
2.The evidence of all witnesses at the trial is to be given orally other than the evidence of witnesses who have sworn and affirmed affidavits and are not required for cross-examination by the opposing party.
3.Evidence is not to be adduced orally from a witness in respect of a topic, issue, event or circumstance if that topic, issue, event or circumstances is not addressed in substance in the affidavit which has been sworn by the witness, other than with the leave of the court or the consent of the opposing party.
4.Witnesses are not to be examined or cross-examined about what is said or not said in their affidavit without the leave of the court or the consent of the opposing party.
5.The costs of the interlocutory application dated 25 March 2022 be the plaintiff’s costs in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)WIGNEY J:
The hearing of this matter has been…
Keep reading for free
Create a free CaseChat account to read Liu v Option Funds Management Limited and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2022] FCA 444
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1. The second plaintiff be permitted to give evidence at the trial via video link from the People’s Republic of China.
2. The evidence of all witnesses at the trial is to be given orally other than the evidence of witnesses who have sworn and affirmed affidavits and are not required for cross-examination by the opposing party.
3. Evidence is not to be adduced orally from a witness in respect of a topic, issue, event or circumstance if that topic, issue, event or circumstances is not addressed in substance in the affidavit which has been sworn by the witness, other than with the leave of the court or the consent of the opposing party.
4. Witnesses are not to be examined or cross-examined about what is said or not said in their affidavit without the leave of the court or the consent of the opposing party.
5. The costs of the interlocutory application dated 25 March 2022 be the plaintiff’s costs in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Ms Liu and Mr Zhu claim that, in misleading them as to the nature of the $2 million payment, Option and Mr Cau breached various provisions of the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). They also allege that in refusing to repay the $2 million, or refusing to accept or approve the redemption request, Option and Mr Cao breached their fiduciary duties or acted unconscionably. They claim various forms of relief, both pursuant to the Corporations Act, ASIC Act and at general law, the general effect of which is that Option and Mr Cao be required to repay the $2 million paid to them, together with any unpaid interest. Mr Zhu has affirmed an affidavit for the purposes of the proceeding. The affidavit is in Chinese, though it is being translated into English. I have determined that the witnesses in this case should give their evidence in chief orally, rather than by way of affidavit. This application should nevertheless be approached on the basis that Mr Zhu will give evidence broadly along the lines of that contained in his affidavit. It is unnecessary to consider the contents of Mr Zhu’s affidavit in great detail. It suffices to note that the affidavit is fairly short, and its contents would appear to suggest that much of Mr Zhu’s evidence is likely to be relatively benign or uncontentious. Importantly, it is clear that Mr Zhu was not a party to any of the critical conversations in which the terms and conditions of the $2 million payment were allegedly misrepresented. The alleged misrepresentations were said to have been made in the course of conversations between Mr Cao and Ms Liu. Mr Zhu had some fairly peripheral discussions with Mr Cao, though those dealings occurred well before, and did not concern, the payment which is central to the proceeding. The earlier interactions between Mr Zhu and Mr Cao may turn out to have some relevance and importance in assessing the nature of the relationship between Mr Zhu and Mr Cao and the contention that Mr Cao took advantage of Mr Zhu and Ms Liu’s disadvantages. The nature of the earlier dealings do not, however, appear to be particularly contentious. While it is somewhat difficult to analyse and be emphatic about the relevant importance or otherwise of Mr Zhu’s evidence in the overall context of these proceedings, I do not expect that Mr Zhu’s evidence will be particularly lengthy, complex or contentious. Certainly, the defendants did not point to any parts of Mr Zhu’s affidavit which were said to be contentious. Nor did they suggest that there are any significant issues of credit that are likely to arise in relation to Mr Zhu’s evidence. Rather, they focused on what was said to be potential subtleties or nuances that may arise in respect of Mr Zhu’s evidence when it comes to considering the allegations concerning unconscionability and the claim of special disadvantage. I also doubt that it will be necessary for Mr Zhu to be taken to a large number of documents. That is a circumstance which sometimes makes cross-examination via video link difficult.