1. I will hear from the parties as to the form of the order and costs.
CATCHWORDS:
DEEDS – where the plaintiff entered into a contract of sale for the purchase of a share in real property owned a company controlled by the defendant – where the defendant and the company controlled by the defendant entered into a deed of indemnity in favour of the plaintiff – where a side agreement to secure deposit moneys paid by the plaintiff in accordance with the contract of sale was recorded as a recital to the deed of indemnity – whether the agreement recorded in the recital was, in fact, entered into – whether the recital recording the agreement gave rise to an entitlement to the amount claimed by the plaintiff
Mrs Pei Lo (Mrs Lo) seeks $359,854.67, together with $11,613.80 as net rental income, from the defendant Mr Robert Huang (Mr Huang).[1]
[1]See Submissions of the Plaintiff dated 1 April 2019 at [4].
The principal amount of $359,854.67 is said to be for the remainder of the deposit Mrs Lo paid for the purchase of a share in property at Parkinson owned by Mr Huang’s company called United Communications Network Pty Ltd (UCN).[2]
[2]See Submissions of the Plaintiff dated 1 April 2019 at [1].
Mrs Lo and her husband Mr Zhang Yong Lo (Mr Lo) first met Mr Huang when they needed to buy land. Mr Huang was a home loan broker in a home loan company.[3] He has been UCN’s sole director since 31 January 2003.[4]
[3]T1-33.
[4]See Further Amended Statement of Claim at [3(c)], admitted in the Amended Defence at [2(c)].
In around 2005, Mrs Lo authorised her husband to engage in negotiations with Mr Huang in relation to two properties:
(a) 104 Hume Road, Toorbul (the Toorbul property); and,
(b) 2939 Beaudesert Road, Parkinson (the Parkinson property).
Regarding the first property, that is the Toorbul property, it is not in dispute between the parties that on 21 March 2005, Mrs Lo and Mr Huang entered into:
(a) a contract for sale by which Mrs Lo purchased a 20 per cent share in the Toorbul property from Mr Huang for $234,000; and,
(b) a deed of indemnity by which Mr Huang indemnified Mrs Lo in respect of any claims by the mortgagee over the Toorbul property (the 21 March Deed).[5]
[5]See Further Amended Statement of Claim at [4] and [6], admitted in the Amended Defence at [4] and [6]. See also Exhibit…
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 Lo v Huang
Sign in free to access the full text
Details
AGLC
Lo v Huang [2019] QDC 61
Case
[2019] QDC 61
Decision Date
CaseChat Overview and Summary
Lo, the plaintiff, entered into a contract of sale for the purchase of a share in real property owned by a company controlled by Huang, the defendant. As part of the sale, Huang and the company entered into a deed of indemnity in favour of Lo. The deed of indemnity contained a recital recording a side agreement to secure the deposit moneys paid by Lo in accordance with the contract of sale. Lo sought to enforce the agreement recorded in the recital, claiming that it entitled him to the amount he had paid as deposit. Huang disputed the existence of the agreement and argued that the recital did not give rise to any entitlement to the deposit moneys. The primary legal issue before the court was whether the agreement recorded in the recital was, in fact, entered into and, if so, whether it gave rise to an entitlement to the amount claimed by Lo.
The court held that the agreement recorded in the recital was not, in fact, entered into. The evidence did not support the existence of such an agreement, and the recital itself did not contain any terms that could be construed as an agreement to secure the deposit moneys. The court further held that, even if the agreement had been entered into, the recital did not give rise to an entitlement to the deposit moneys. The recital was not a binding term of the deed of indemnity, and any agreement to secure the deposit moneys would have required separate and distinct consideration. The court found that no such consideration had been provided.
As a result, the court dismissed Lo's claim. The court found that Lo was not entitled to the deposit moneys he had paid, and that the agreement recorded in the recital did not give rise to any entitlement to those monies. The court ordered that Lo take no further action to enforce the agreement recorded in the recital and that the parties bear their own costs of the proceedings.
Orders
Orders of the court
1. I will hear from the parties as to the form of the order and costs.