Lui v Guan; Sun Link Group Pty Ltd v Lui - [2019] NSWSC 803

Supreme Court

New South Wales

Medium Neutral Citation: Lui v Guan; Sun Link Group Pty Ltd v Lui [2019] NSWSC 803
Hearing dates: 27-28 June; 10-11 October and 6 December 2017; 12 March 2018; 4, 15 and 23 April 2018 (written submissions)
Date of orders: 28 June 2019
Decision date: 28 June 2019
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court makes the following directions:

(1) Mr Lui shall file and serve:

(a) written submissions as to his claim for relief under prayer 4 of the amended statement of claim, with respect to the vehicle; and

(b) written submissions or evidence as to the question of interest and costs;

on or before 4pm on Friday, 12 July 2019.

(2) The defendants shall file and serve:

(a) written submissions in reply as to any claim for relief by Mr Lui under prayer 4 of the amended statement of claim, with respect to the vehicle; and

(b) written submissions or evidence in reply as to the question of interest and costs;

on or before 4pm on Friday, 26 July 2019.
(3) In the event that either party seeks an oral hearing in relation to the question of interest and costs, an application to that effect should be made in the written submission filed in accordance with orders (1) and (2) above.
Catchwords:
BREACH OF CONTRACT – written agreement – parties to agreement – construction of terms of agreement – principles of construction – objective surrounding circumstances – object and purpose of the agreement – whether obligations performed under the agreement – whether breach of agreement – claim for damages – payment of fee – damages regarding the vehicle – relief as to the vehicle and interest and costs subject to further directions

CIVIL PROCEEDINGS – whether Property, Stock and Business Agents Act 2002 applied to proceedings – “carries on a business” – definition of “real estate agent” – “as an agent” – definition of “real estate transaction” – principles of statutory construction
EVIDENCE – credibility findings – first defendant not a witness of truth and not reliable – whether Jones v Dunkel inferences available – witness failed to appear – admissibility of evidence – weight to be given to evidence
Legislation Cited: Civil Procedure Act 2005 (NSW)
Corporations Act 2001 (Cth)
Evidence Act 1995 (NSW)
Property, Stock and Business Agents Act 2002 (NSW)
Taxation Administration Act 1953 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Adamson v Ede [2009] NSWCA 379
Australia Casualty Co Ltd v Federico (1986) 160 CLR 513; [1986] HCA 32
Australian Broadcasting Commission v Australasian Performing Right Associated Ltd (1973) 129 CLR 99; [1973] HCA 36
B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 97011
Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251
Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647; [1908] HCA 88
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Browne v Dunn (1893) 6 R 67
Burton v English (1883) 12 QBD 218
Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165
Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2008] NSWSC 801
Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2009] NSWCA 190
Chapmans Ltd v Australian Stock Exchange Ltd (1996) 67 FCR 402
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24
Colbron v St Bees Island (1995) 56 FCR 303
Con Ange v Calogo Bloodstock AG t/as Coolmore Australia [2012] NSWSC 666
Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd (2013) 29 BCL 329; [2012] NSWCA 184
Cox Purtell Staffing Services Pty Ltd v Our Energy Group Pty Ltd [2017] NSWSC 1122
Darmanin v Cowan [2010] NSWSC 1118
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Eurico SpA v Philipp Brothers (the Epaphus) [1987] 2 Lloyd's Rep 215
Fabre v Arenales (1992) 27 NSWLR 437
FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343
Fairway Estates Pty Ltd v Federal Commissioner of Taxation (1970) 123 CLR 153; [1970] HCA 29
Farrell v Bannister (1952) 52 SR (NSW) 73
Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 97023
Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418; [1970] HCA 31
Greg Roughsedge Realty Pty Ltd v Whitecross [2001] QCA 426
Halford v Price (1960) 105 CLR 23; [1960] ALR 560
Hancock v Rinehart [2014] NSWSC 844
Hawk Australia Pty Ltd v George Ambrose Commercial Pty Ltd [2007] NSWSC 1150
Hide & Skin Trading v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68; [1907] HCA 38
J Kitchen & Sons Pty Ltd v Stewarts Cash & Carry Stores (1942) 66 CLR 116; [1942] ALR 229
Jenkins v Kedcorp Pty Ltd (2001) Q ConvR 54-547; [2002] 1 QD R 49
John R Keith Pty Limited v Multiplex Constructions (NSW) Pty Limited [2002] NSWSC 43
Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367
Kedcorp Pty Ltd v Jenkins (2001) Q ConvR 54-547; [1999] QCA 452
Lend Lease Real Estate Investments Ltd v Charter Hall Retail Management Ltd [2011] NSWSC 1624
Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70
Martinis v Raine & Horne Hornsby WPNLServ. P/L (Commercial) [2005] NSWCTTT 69
Mathas v Slater [2009] NSWSC 1397
Metropolitan Gas Co v Federated Gas Employees Industrial Union (1925) 35 CLR 449
Milne v Coxton (unreported, Supreme Court of NSW, Clarke J, 1985) BC8700884
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37
Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146
Pao On v Lau Yiu Long [1980] AC 614
Porter v Oamps Ltd (2004) 207 ALR 635; [2004] FMCA 272
Qureshi v John Fairfax Publications Pty Ltd [2012] NSWSC 1605
Re Griffin; Ex parte The Board of Trade (1890) 60 LJQB 235
Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corp Pty Ltd (No 1) (1993) 178 CLR 379; [1993] HCA 40
RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56
Rivat Pty Ltd v B and N Elomar Engineering Pty Ltd (2007) NSW ConvR 56-186; [2007] NSWSC 638
Rural Insurance (Aust) Pty Limited v Reinsurance Australia Corporation Limited (2002) 41 ACSR 30; [2002] NSWSC 156
Ryan v Textile Clothing & Footwear Union of Australia (1996) 130 FLR 313; [1996] 2 VR 235
Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2017] NSWCA 339
Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 4) [2017] NSWSC 436
Samm Property Holdings Pty Ltd v Shaye Properties Pty Ltd (2017) 345 ALR 633; [2017] NSWCA 132
SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56
Shevill v Builders Licensing Board (1982) 149 CLR 620; [1982] HCA 47
Simpson v Donnybrook Properties Pty Ltd [2010] NSWCA 229
Sims v Gawne [2005] NSWSC 750
Sultana Investments Pty Ltd v Cellcom Pty Ltd [2008] QCA 357
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
Victoria v Tatts Group Ltd (2016) 328 ALR 564; [2016] HCA 5
Waterways Authority of New South Wales v Coal and Allied (Operations) Pty Limited (2008) Aust Contract R 90-278; [2007] NSWCA 276
Williams v ATM & CPA Projects Pty Limited [2015] NSWSC 703
WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd (2016) 341 ALR 467; [2016] NSWCA 297
Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370
Texts Cited: J D Heydon, Cross on Evidence (LexisNexis, 10th ed, 2015)
Category: Principal judgment
Parties:
2015/160052
Kevin Yung Lui (Plaintiff)
Xiuyan Guan (First Defendant)
Sun Link Group Pty Ltd (Second Defendant)
2015/223106
Sun Link Group Pty Ltd (Plaintiff)
Kevin Yung Lui (Defendant)
Representation:
2015/160052
Counsel:
P Afshar (Plaintiff)
I Leong (Defendants)

Solicitors:
Dunstan Legal (Plaintiff)
Auyeung Hencent & Day (Defendants)

2015/223106
Counsel:
I Leong (Plaintiff)
P Afshar (Defendant)
Solicitors:
Auyeung Hencent & Day (Plaintiff)
Dunstan Legal (Defendant)

File Number(s): 2015/160052; 2015/223106

TABLE OF CONTENTS:

INTRODUCTION - paragraph 1

The Pleadings: The Primary Matter - paragraph 7

Agreement - paragraph 8
Terms of Agreement - paragraph 11
Performance - paragraph 13
Breach - paragraph 18
Loss and Damage - paragraph 20
Defence pursuant to the Property, Stock and Business Agents Act 2002 - paragraph 21

The Agreement - paragraph 22

Property Projects

The Kensington Project - paragraph 31
The Auburn Project - paragraph 37

Relevant Persons and Companies

Mr Lui and Elite 100 - paragraph 40
Ms Guan - paragraph 48
Sun Link - paragraph 51
Mr Liang - paragraph 52
Other relevant parties - paragraph 55

The Issues - paragraph 56

Written Submissions - paragraph 58

EVIDENCE

Overview of the Evidence - paragraph 60

The Witnesses - paragraph 62

The Credibility of Ms Guan - paragraph 63
Table 1: Evidence of Ms Guan – cross-examination

The Credibility of Mr Lui - paragraph 87
Mr Liang - paragraph 100

The Jones v Dunkel Issues - paragraph 107

Exhibit 18 - paragraph 112

FACTUAL BACKGROUND - paragraph 119

Initial meetings between Mr Lui and Ms Guan: 2013-2014 - paragraph 120

The loan agreement with A Capital: 26 June 2014 - paragraph 126

The purchase of the Kensington land and the Auburn properties: 2014 - paragraph 138

The expectation of payment: Ms Guan and Mr Liang - paragraph 140

Prior to signing the agreement, the assistance of Mr Lui: 2013-2014 - paragraph 141

The Option / Sales contract with Landream: 22 September 2014 - paragraph 145

Letter of offer by Anson City: 4 November 2014 - paragraph 151

The Kensington Project appointed receivers and Shuangfu placed under external administration: November 2014 - paragraph 160

Meetings of the Creditors to Shuangfu: 2 December 2014 to 2 March 2015

First meeting of the creditors: 2 December 2014 - paragraph 163
Second meeting of the creditors: 23 December 2014 - paragraph 164
Third meeting of the creditors: 2 March 2015 - paragraph 166

The vehicle - paragraph 167

The circumstances immediately prior to signing the agreement: December 2014 to January 2015 - paragraph 170

The circumstances at the time of the signing of the agreement: 18 January 2015 - paragraph 177

The expression of interest process: 29 January to March 2015 - paragraph 188

The contract for the Kensington land exchanged: 25 March 2015 - paragraph 226

The circumstances after the confirmation of the exchange: March 2015 to May 2016 - paragraph 229

THE PRIMARY MATTER: THE CONTRACT DISPUTE ISSUE

Construction of the Agreement

General Principles
Formation of Contract - paragraph 236
Principles of Construction - paragraph 244

Parole evidence rule - paragraph 254
Contra proferentem - paragraph 255
Implied industry term - paragraph 256
The rule that past consideration is not good consideration - paragraph 258
The presumption against impossibility - paragraph 261
A contractual clause must not be considered in isolation - paragraph 266
All parts of a contract must be given effect where possible and no part should be treated as inoperative - paragraph 271
Reasonableness - paragraph 274
Requirement of clear words to support construction, particularly in circumstances where a construction would yield an unfair result - paragraph 277

Defendants’ Submissions

Formation of the agreement - paragraph 281
Construction of the agreement - paragraph 283
Objective Circumstances Surrounding the Agreement - paragraph 285
Terms of the agreement - paragraph 302

Handwritten Term - paragraph 326

Consideration: Construction of the Agreement - paragraph 327

Performance of the Agreement

Defendants Submissions - paragraph 353
Assisting Ms Guan with her immigration issues - paragraph 355
Calling Mr Qian of Kerry Properties - paragraph 359
Privately meeting with Mr Chen of A Capital - paragraph 362
Speaking to Mr Chan of Anson City - paragraph 369
Speaking to Mr Zhao - paragraph 379
Bringing in Fairway’s bid - paragraph 382
Speaking to Mr Gung - paragraph 385
Even if Mr Lui’s job was to find an “investor” rescuer, he failed at that as well - paragraph 386

Consideration: Performance - paragraph 391

THE PRIMARY MATTER: THE REAL ESTATE AGENT ISSUE - paragraph 413

Defendants Submissions - paragraph 414

Issue 1: “carries on a business” - paragraph 418
Issue 2: Range of Activities - paragraph 438
Issue 3: “As an agent” - paragraph 450

The Act - paragraph 466

Consideration: Real Estate Agent Issue - paragraph 470

The First Issue - paragraph 473
The Second Issue - paragraph 498
Third Issue - paragraph 507

THE PRIMARY MATTER: RELIEF – DAMAGES - paragraph 509

CONCLUSION: THE ISSUES - paragraph 511

THE SECOND MATTER - paragraph 512

CONCLUSION - paragraph 516

DIRECTIONS - paragraph 521

Judgment

INTRODUCTION

HIS HONOUR: By an amended statement of claim filed on 29 September 2015 (“the ASOC”), the plaintiff, Mr Kevin Yung Lui, commenced proceedings for breach of contract against the defendants, Ms Xiuyan Guan and Sun Link Group Pty Ltd (“Sun Link”) (collectively, “the defendants”). Those proceedings shall hereinafter be referred to as “the primary matter”. The central question arising in the primary matter was whether Mr Lui should receive damages for breach of an agreement entered with Ms Guan, namely, the “Co-operative Agreement” dated 18 January 2015 (“the agreement”). The ASOC pleaded that the agreement was also made on behalf of Sun Link (I will return to that contention later in this judgment).
In the primary matter, Mr Lui initially sought declaratory relief and specific performance of the agreement or, in alternative, the transfer of title of a Rolls Royce Phantom IS68 Sedan (“the vehicle”) to him. The vehicle was registered to Sun Link. The relief claimed, as pleaded, is extracted below:

1. A declaration that the agreement between the plaintiff and the first defendant for and on behalf of the second defendant dated 18 January 2015 (Agreement) is valid and enforceable and ought to be specifically performed.
2. An order that the Agreement be specifically performed.
3. In the alternative to prayer 2 above, an order that the second defendant, by the first defendant, executes all documents and enters into any instruments necessary to transfer to the plaintiff the title, without any encumbrance, to the vehicle being a Rolls Royce Phantom IS68 Sedan bearing the number plate number SL9555, VIN No SCA1S680X6UH00366, which is registered in New South Wales (Vehicle).
4. In lieu of specific performance in accordance with prayer 2 above, damages for breach by the first defendant and the second defendant of the Agreement
5. Interest pursuant to section 101 of the Civil Procedure Act 2005.
6. Costs.

By a statement of claim filed on 30 July 2015, Sun Link commenced detinue proceedings against Mr Lui and sought damages with respect to the vehicle (“the second matter”). The second matter was listed with the primary matter; the matters were to be heard together.
On 13 May 2016, the vehicle was sold by its mortgagee for $200,000.
At the outset of the proceedings, the Court sought to confirm the status of the second matter, in circumstances where the vehicle had been sold by the mortgagee, the mortgage with the financier settled and the remaining equity of around $24,434.87 was being held by the Supreme Court of Victoria. The onus was put upon the Sun Link to communicate the course it intended to take, in that respect, “by communicating with your opponent what the basis of it is, how you say it comes into the proceedings now and then, what should be done with it”. Counsel for Sun Link, Mr I Leong, as to that issue, intimated an intention to raise arguments as to the issue of damages, notwithstanding the fact that pleadings in the second matter were predicated upon Mr Lui having possession of the vehicle. However, any argument, in that respect, received little development and appeared to dissipate as the proceedings progressed with the focus of the parties, in the balance of the proceedings, fixated upon the resolution of issues in the primary matter. I will return to my findings, as to the second matter, after my consideration of the primary matter.
Returning to the primary matter, following the sale of the vehicle, the relief sought in the primary matter was ultimately reduced and refined by Mr P Afshar, counsel for Mr Lui, at the outset of the hearing, and without resorting to the filing of further amended pleadings, as follows:

Prayers 1, 2 and 3 were superseded insofar as the vehicle was sold on or around 13 May 2016 and, as a result, were no longer pressed in that form.

Prayer 4 sought an order for damages followed by interest and costs. Mr Lui’s damages were particularised as $780,000, being 2% of the total bidding figure of the successful bid, and the market value of the vehicle. Given that the vehicle was sold for $200,000, that amount provided, it was submitted, the most sensible evidence of its market value.

Prayers 5 and 6, sought interest pursuant to s 101 of the Civil Procedure Act 2005 (NSW) and costs, respectively.

The Pleadings: The Primary Matter

The relevant cause of action pleaded is breach of contract. The following summary is derived from the ASOC filed on 29 September 2015 and the defence to the amended statement of claim filed on 23 October 2015 (“the defence”). For the purpose of concision, particulars, for the most part, have been omitted from the below summary.

Agreement

On or about 18 January 2015, Mr Lui entered into an agreement with Ms Guan for and on behalf of Ms Guan and Sun Link. The defendants, in that respect, admitted that Mr Lui and Ms Guan entered into an agreement on that date. The defendants denied the balance of the matters alleged, including the pleading that Sun Link was party to the agreement.
Mr Lui also pleaded that at all relevant times that Ms Guan was the sole director and shareholder of Sun Link. The defendants denied this and pleaded that Henson Liang was also a director of Sun Link for the period 31 October 2012 to 23 February 2015.
It may be noted at this juncture, that there was no claim that the agreement has no legal effect or was, in some way, vitiated.

Terms of Agreement

The terms of the agreement were pleaded and particularised by Mr Lui as follows:

Terms of the Agreement
4. It was a term of the Agreement that the plaintiff would locate good and resourceful investment partners in Australia or overseas to assist the first defendant with her financial situation and difficulties.
Particulars
i. Clause 1 of the Agreement.

5. It was a term of the Agreement that the plaintiff would locate suitable investors and developers in Australia or overseas to take over a project for the development (Project) of the site located at 81-85 Anzac Parade, Kensington in New South Wales (Land), by tendering expressions of interest.
Particulars
i. Clause 2 of the Agreement.

6. It was a term of the Agreement that once the expression of interest bids for the Project were successful the first plaintiff would give to the plaintiff, free of charge, the vehicle, being a Rolls Royce Phantom IS68 Sedan bearing the number plate number SL9555, VIN No SCA1S680X6UH00366, which is registered in New South Wales (Vehicle).
Particulars
i. Clause 4 of the Agreement.

7. It was a term of the Agreement that once the expression of interest bids for the Project were successful, the first defendant would pay to the plaintiff an amount equal to 2% of the total bidding figure of the successful bid.
Particulars
i. Clause 5 of the Agreement.

8. It was a term of the Agreement that the plaintiff would approach the mortgagee on behalf of the first defendant so as to facilitate the success of the bidding process for investors and developers in Australia and overseas to take over the Project.
Particulars
i. Telephone conversation between the plaintiff and the first defendant in or around December 2014.
ii. Conversation in Sydney between the plaintiff and the first defendant in or around January 2015.

The defendants denied those matters and pleaded the following:

that “the term of the agreement was a period of 10 days from the date of execution of the agreement”; and

that on the true construction of the agreement, Mr Lui “did not become entitled to any commission or reward unless and until [he] effectively introduced the purchaser of certain land at 81-85 Anzac Parade, Kensington NSW owned by Shuangfu”.

Performance

Between January and March 2015, Mr Lui performed his obligations pursuant to the agreement. This was denied by the defendants.
On or about 25 March 2015, Shuangfu Development Pty Ltd (“Shuangfu”) exchanged a contract for the sale of land with Anson City Developments 1 (Australia) Pty Ltd (“Anson City”) for the sale of the site located at 81-85 Anzac Parade, Kensington in New South Wales for $39 million after a successful bidding process, which Mr Lui facilitated. The exchange was effected by the real estate agent Jones Lang LaSalle acting on instructions from the mortgagee or a receiver appointed by the mortgagee. In answer to this pleading, the defendants:

admitted that Shuangfu exchanged a contract with Anson City for “the sale of the Properties on or around 25 March 2015 for the sum of $38.389 million”;

denied the balance of that pleading; and

in further answer to the same, the defendants argued “the purchaser Anson City Developments Pty Ltd was introduced by Henson Liang and not by [Mr Lui]”.

Mr Lui further pleaded at paras 11 and 12 of the ASOC:

On or about 25 March 2015, the mortgagee received pursuant to the mortgagee's power of sale a 10% deposit from Anson City upon exchange of the contract.

On or about 22 April 2015, the mortgage on “the land” (numbered AI899769) was transferred by the mortgagee to Anson City.

(Those pleadings were, in essence, statements of fact).

In answer to the foregoing pleading, the defendants said: “The defendants do not understand and accordingly do not admit paragraphs 11 and 12”.
In summary, the defendants denied that Mr Lui performed his obligations.

Breach

Mr Lui pleaded that in breach of the terms of the agreement, and despite demands by Mr Lui, Ms Guan and Sun Link failed or refused to:

cause the registration of the vehicle to be transferred to the plaintiff in accordance with cl 4 of the agreement; and

pay Mr Lui in accordance with cl 5 of the agreement (set out below).

As to the contended breach, the defendants:

admitted Ms Guan has received correspondence seeking payment and transfer of title to the vehicle to Mr Lui;

admitted that they have not made the payment or the transfer demanded by Mr Lui;

denied any obligation to make the payment or the transfer demanded; and

denied the balance of the matters alleged in the paragraph.

Loss and Damage

As a result of breaches by Ms Guan and Sun Link of the terms of the agreement, Mr Lui pleaded, he has suffered loss or damage. This was denied by the defendants.

Defence pursuant to the Property, Stock and Business Agents Act 2002

By their defence to the ASOC, the defendants also introduced a pleading with respect to the Property, Stock and Business Agents Act 2002 (NSW) (“the Act”). That pleading is extracted in full (together with particulars):

13. The sale of the Properties by Shuangfu Development Ltd was a real estate transaction as defined by section 3 of the Property, Stock and Business Agents Act 2002 ("PSBAA").
14. On the true construction of the agreement, the plaintiff's obligations were to:
a. induce or attempt to induce or negotiate with a view to inducing other persons to enter into, or to make or accept an offer to enter into, the sale of the Project properties or a contract for the sale of the Project properties, or
b. introduce or arrange for the introduction of a prospective purchaser, to the owner, or the receiver of the owner, of the Project Properties; and

in the premises, by operation of section 3 of the PSBAA the plaintiff was, for the purposes of the PSBAA, a real estate agent.
Particulars
The relevant terms of the agreement and the obligations of the plaintiff are as alleged by the defendants in paragraph 7 of this defence.

15. The plaintiff does not hold a licence to be a real estate agent as defined by the PSBAA.
16. The consideration of the transfer of the Vehicle to the plaintiff amounts to a commission, fee, gain or reward for the services of the plaintiff under the agreement.
17. The consideration of payment of 2% commission on the purchase price of the Project properties amounts to a commission, fee, gain or reward for the services of the plaintiff under the agreement.
18. In the premises of the matters pleaded in paragraphs 13 to 17, by operation of section 8(2)(a) of the PSBAA, the plaintiff is not entitled to bring proceedings for the recovery of any commission, fee, gain or reward for any service performed by him and as such is not entitled to any of the amounts or transfer of the Vehicle under the agreement.

The Agreement

The agreement (the existence of which was admitted) was a written contract, which included a combination of typed Chinese script and English, and was executed by the parties on 18 January 2015.
Mr Lui led expert evidence as to the terms of the contract when the Chinese script was translated to English. The English translation was prepared by Lin Zhou, accredited NAATI Professional Translator and was before the Court (see Ex 1).
The English translation appears below (with the words that originally appeared typed or handwritten in English and, therefore, not requiring translation, italicised for the purposes of distinction only):

Co-operative Agreement
Party A: LEI, Jingquan
Address: Suit 25, Elevation Building 6 Meridian Place Bella Vista, NSW 2153 Australia
Party B: GUAN, Xiuyan
Address: 81-85 Anzac Parade, Kensington NSW Australia
Project company: Shuangfu Development Pty Limited ACN 151971041
Project address: 81-85 Anzac Parade, Kensington NSW
After discussions and negotiations in good faith, the Parties enter into the following agreement based on the principle of justice and fairness for mutual benefit:
1. According to the detailed explanation and analysis about the project given by Party B, Party A is required to seek good investment partners in or out of Australia in order to improve the current economic situation and solve the financial problems encountered by Party B.
2. Party A agrees that it will work hard to assist Party B to find appropriate investment developers in and out of Australia by using his reputation and prestige in the industry, and the investment developers will submit a sealed bid to the company which takes over the project.
3. Party B agrees to encourage directors with voting power for the project to support the proposal of Party A which involves a sealed bid in order to overcome her current financial difficulties successfully.
4. Party B promises Party A to give him a Rolls-Royce motor car (plate number: SL9555) under the name of Party B as a free gift when a sealed bid for the project is successful.
5. Party B undertakes to pay Party A a usual service fee to the agent nominated by Party A at the amount of percent (2%) of the tender rate.

The matters unspecified in the agreement may be completed in the formal cooperative document through discussions by the Parties identifying the duties, responsibilities and rights of each Party. The agreement is in quadruplicate and will take effect from the signature date by the Parties.
(Handwriting [sic] words) the actual settlement price requires a separate talk.
Party A: LEI, Jingquan
Signature: (signature) LEI, Jingquan
Date: 18/1/2015
Party B: GUAN, Xiuyan
Signature: (signature) GUAN, Xiuyan
Date: [no date inserted.]

(It should be noted that it is not in dispute that “Mr Jingquan Lei” is the same person identified as Mr Lui in these proceedings).

It may be noted that counsel for the defendants, notwithstanding his agreement to the English translation, reserved the right to run an uncertainty argument as to the translation; a matter that was not pleaded. Leave was granted to counsel to file and serve a notice of motion to amend its defence in that respect. A notice of motion was filed by the defendants but, ultimately, not moved upon. The issue of costs, in that respect was reserved.
Counsel for the defendants ultimately accepted at the outset of the proceedings that Ex 1 represented the English form of the agreement. Later, Ms Guan made, during the course of her evidence, several assertions suggesting, in effect, that Mr Lui had perpetuated a fraud with respect to the agreement, such that sections of agreement had been excised or otherwise changed from the original. Those assertions had not been raised in the pleadings or at an earlier point in the proceedings. That factor, in conjunction with several others, went directly to Ms Guan’s credit and contributes to my finding that she was not, as I will discuss below, a truthful or reliable witness. It may be noted that the rejection of her evidence, in the absence of corroboration (as I will later find), results in a rejection of the pleading in the defence that the term of the agreement was for a period of 10 days from the date of execution.
The matter proceeded before the Court upon the concession of counsel for the defendants that the terms of the agreement were those contained in and marked Ex 1. Despite some very late prevarication by counsel for the defendants about some of the terms of the agreement as expressed in Ex 1 (without any submission seeking leave to depart from that previous concession), I find the agreement was in the terms of Ex 1.
The particulars pleaded as to the form of the agreement were as follows:

The agreement was express;

The agreement was partly oral and partly in writing;

Insofar as the agreement was in writing, it was recorded in a document entitled: “Co-operative Agreement”, which was signed by the plaintiff and the first defendant on or about 18 January 2015;

At the time of signing the agreement, Ms Guan was the sole director and shareholder of Sun Link; and

Insofar as the agreement was oral, it comprised of conversations between Mr Lui and Ms Guan during the period September 2014 to January 2015.

At this juncture, it should be noted that Shuangfu, whilst listed as the “project company” on the agreement, was not a party to the agreement. I will deal with the balance of those particulars later in this judgment.
I will also turn to the issue of construction at a separate juncture. Further, detail as to the events that following the signing of the agreement will be set out under the heading “Factual Background” below.

Property Projects

The Kensington Project

Shuangfu purchased seven parcels of land in Kensington which shall hereinafter be described as “the Kensington land” (it may be noted that two other parcels of land were unaccounted for in the evidence and the submissions of the parties, but that gap is immaterial to the disposition of the issues in the proceedings). The Kensington land incorporated the land appearing in the preamble to the agreement, namely, “81-85 Anzac Parade, Kensington”.
The evidence disclosed (as will be discussed in greater detail below) that Shuangfu purchased the Kensington land for the purposes of developing a mixed residential and commercial property site at Kensington using the Kensington land (hereinafter referred to as “the Kensington Project”).
It was not entirely clear, on the evidence, why the agreement did not refer to the whole of the Kensington land, which seven parcels incorporated 81-95 Anzac Parade, Kensington and 69-71 Boronia Street, Kensington. No party relied upon or referred to that fact. In any event, it is not a matter that will occupy further consideration in this judgment because whether Mr Lui’s obligations under the agreement concerned the lesser or the greater of the Kensington land, the issue in the proceedings is whether he performed under the agreement as properly construed with respect to the land or project specified therein. That is not to say that an issue did not emerge in the proceedings as to which parcels of land were in fact the subject of various offers made by various relevant entities up to the sale of the Kensington land. However, that issue can await discussion later in this judgment with respect to performance.
The purchase of the Kensington land was financed pursuant to the Kensington Loan Agreement dated 9 May 2014, between Australia Capital Financial Management Pty Ltd (“A Capital”) as lender, and Shuangfu as borrower. A total sum of $21,353,357 was drawn by Shuangfu in respect of the Kensington Project in accordance with that agreement.
At this juncture it should be noted, during Mr Lui's cross-examination, there were many and varied attempts by the defendants' counsel to challenge Mr Lui's evidence in relation to the use of the word “project” as opposed to “land” or “property”. Those challenges were aimed at causing Mr Lui to agree he was engaged to sell land and so to enhance the defendants' case in relation to the Act (as discussed below under the heading, “Real Estate Agent Issue”). This cross-examination ultimately failed, not only because Mr Lui explained his reasons for using the word “project” coherently, but also because evidence from Ms Guan established that she also used the description, “project”, to describe the Kensington Project rather than using the word “land” to describe it, especially in the context of Shuangfu’s attempted sale to Landream Project Management Pty Ltd (“Landream”) (as discussed below under the heading, “The Option / Sales contract with Landream: 22 September 2014”). The same instance occurred throughout counsel for the defendants’ submissions, both written and oral. As such, over the course of the proceeding references are made to the Kensington Project, the Kensington properties and the Kensington land. I accept that delineation has primarily been made in order to advance arguments with respect to the real estate agent issue, namely, the second case theory advanced by counsel for the defendants.
I will refer variously to the Kensington Project, as defined above or the Kensington land, again in that context, but particularly in light of an expression of interest process discussed below.

The Auburn Project

Shuangxing Development Pty Ltd (“Shuangxing”) purchased six properties in Auburn (“the Auburn properties”). Shuangxing purchased the Auburn properties for the purposes of developing a mixed residential and commercial property site at Auburn.
A Capital initially agreed to lend $12 million from its own funding to Shuangxing in settling the Auburn properties. A Capital subsequently agreed to raise a further $7 million from external funding for settlement, on the following conditions:

that the Kensington Loan Agreement was refinanced under the loan agreement dated 26 June 2014;

the Auburn properties were transferred to the Australia Capital Sunlink Property Fund (also referred to as the “ACSP Auburn Fund”); and

Shuangxing agreed to share returns with A Capital to compensate for additional risks undertaken by A Capital.

Thus, by the loan agreement dated 26 June 2014, it was agreed that the loan with respect to the Kensington Project would be refinanced with A Capital (as a result, the Kensington Loan Agreement dated 9 May 2014 was replaced by the loan agreement dated 26 June 2014). A Capital was listed as the registered mortgagee for the Kensington land. It may also be noted that Sun Link was listed, amongst others, as guarantor to the loan agreement dated 26 June 2014. I will return to a discussion of that loan agreement below.

Relevant Persons and Companies

Mr Lui and Elite 100

Mr Lui is the plaintiff. He is a senior project development consultant who provides advice and obtains funding for development projects in Australia from investors located both in Australia and overseas. Over the years, he has formed relationships, acquaintances and a network, which he used to conduct his business. The defendants in the primary matter contended that Mr Lui was a real estate agent in relation to the Kensington Project, I will return to this argument later in the judgment.
Mr Lui has a 40% shareholding in “Elite 100”. Elite 100 have offices in Sydney, Hong Kong, Beijing, Shanghai and Macau. In May 2012, “Elite 100 Australia Pty Ltd” was registered for the purpose of “promoting Australia as the best destination for business migration, especially in China, India and other Asia regions”.
The Elite 100 website sets out the vision of the business: “Elite 100 aims to provide the best opportunities and services for Australia and its people through globalised experience and expertise in property development, investment, immigration, integrated resorts, media and art”.
By its website, Elite 100 also set out brief information about “[t]he new Australian Significant Investor Visa” and described it as “a not-to-be-missed opportunity for wealthy individuals to invest in the future security of their families”.
Elite 100 stated that the Australian Significant Investor Visa (“SIV”) was introduced “to assist high net worth migrants who will make a minimum investment of five million AU dollars in the Australian economy for a continuous four year period”.
Mr Lui gave evidence that Elite 100 does not employee registered migration agents. However, “many registered immigration agents, alliance with us”. As a result, he would not attend to the completion of any SIV applications.
Elite 100 was described as “a modern enterprise group”. It described its core business operation as focused upon:

strategic planning of urban developments;

theme creation and application designs;

facilitating project and property investment;

recruiting and migration services; and

resorts, media and art.

In the absence of evidence to the contrary, it must be concluded that Mr Lui did not have a real estate agent’s license.

Ms Guan

Ms Guan is the first defendant in the primary matter. She was, at various points that will be distinguished where relevant, the sole director and/or sole shareholder of the following companies:

Sun Link;

Shuangfu; and

Shuangxing.

Both Shuangfu and Shuangxing entered into agreements to purchase properties, as discussed above.
It was not contested that Ms Guan personally funded a component of the Kensington Project in the amount of $12 million. (A debt that would later be absorbed by the Australia Taxation Office (“ATO”), another creditor of Shuangfu: see below under the heading “Meetings of the Creditors to Shuangfu”).

Sun Link

Sun Link is the second defendant in the primary matter. Both Ms Guan and Mr Liang were directors of Sun Link at one stage. However, on the material before the Court, the precise timeframes of each directorship is not defined. Notwithstanding that fact, I will ultimately find that Mr Liang was a director of Sun Link, together with Ms Guan, at 26 June 2014 through to 23 February 2015. As at the time of these proceedings, Ms Guan was the sole director of Sun Link.

Mr Liang

As will be discussed below, no evidence of Mr Liang was before the Court and, as such, the Court has a limited account as to his role within the events surrounding the dispute.
From the material before the Court, the following is known:

Mr Liang was described as holding the title of “managing director” and “Chief Executive Officer” of Sun Link in April 2015;

Mr Liang was a director of Sun Link, together with Ms Guan, at 26 June 2014 through to 23 February 2015;

Mr Liang was described as the “manager” of Shuangxing;

Mr Liang had experience as a real estate agent and appeared to have worked for Crown Commercial Real Estate;

Mr Liang was a guarantor to the loan agreement dated 26 June 2014; and

Mr Liang was a guarantor to the deed of guarantee and indemnity dated 26 June 2014.

It should also be noted that Mr Liang’s first and last name was inconsistently spelt throughout documents before the court as both Henson/Hanson and Liang/Leung, as such, a reference to Mr Leung should be taken as a reference to Mr Liang.

Other relevant parties

The following parties are also relevant to the facts in the primary matter discussed below (whilst some of the parties may have been earlier mentioned or introduced, for convenience and completeness, they are repeated):

A Capital, the mortgagee (and secured creditor) to Shuangfu and Shuangxing and, subsequently, the mortgagee in possession;

Mr Owen Chen, the principal of A Capital;

Jones Lang LaSalle, the appointed selling/sales agent by the receiver appointed to the land, which was the subject of the Kensington Project;

Representatives of Jones Lang LaSalle:

Mr John Macree, a regional director;

Mr Sam Brewer, national director;

Mr Alex Worsthorne, analyst in sales & investment; and

Mr Leslie Chang, a director in sales & investment.

Mr Barry Kogan and Mr Joseph Hayes of McGrathNicol, appointed agents for mortgagee in possession of the Kensington land (also described as the “controllers” and/or “external administrators”).

Representatives of McGrathNicol:

Ms Kristin Legge, Assistant Manager; and

Mr Mitchell Mansfield.

Baker & McKenzie, solicitor for the agents for mortgagee in possession;

Representatives of Baker & McKenzie:

Mr David Jones, partner; and

Ms Haley Chan, solicitor.

The following companies, inter alia, participated in the expression of interest process, with respect to the sale of the Kensington land (a complete list is set out below, under the heading “The expression of interest process”):

Fairway Investment & Development Pty Ltd (“Fairway”); and

Anson City Developments 1 (Australia) Pty Ltd (“Anson City”).

Representatives of Anson City:

Mr Pak Wai Ngor (also referred to as “Mr Pak” and “Mr Bai”), the principal;

Mr Tom Hu, development manager; and

Mr Bernard Chiu, solicitor.

Mr Justin Chan, was identified as a friend to Mr Lui and a “business advisor” to Mr Pak.

Landream Project Management Pty Ltd, a development company based in Melbourne. Landream, entered an Option / Sales Contract with Shuangfu in 2014; proposed a deed of company arrangement (“DOCA”) in 2015; and was also a creditor of Shuangfu.

The Issues

On 6 June 2018, the parties provided the Court with an agreed statement of issues, setting out the issues in dispute in the primary matter. Those issues are set out below:

What were the precise terms of the contract signed by Mr Lui and Ms Guan on 18 January 2015 (the agreement), including in relation to performance and payment?

Is Mr Lui entitled to the vehicle referred to in the agreement?

Is Mr Lui entitled to damages in the amount for which the vehicle was sold in lieu of specific performance?

Is Mr Lui entitled to the fee referred to in the agreement?

Does the Property, Stock and Business Agents Act 2002 apply to disentitle Mr Lui from receiving the benefits (the vehicle, or damages in lieu, and the fee) under the agreement?

This judgment will be structured so as to firstly deal with the relevant factual circumstances, globally, with respect to those issues. The consideration of those issues shall be discussed in two parts:

The first part, shall consider issues 1-4, which shall be collectively referred to as “the contract dispute issue”; and

The second part, shall consider issue 5, which concerns the application of the Act and shall be referred to as “the real estate agent issue”.

Written Submissions

Mr Lui’s submissions consisted of the following:

Plaintiff’s Outline of Opening Submissions for Hearing on 27 June 2017, 5 pages (27 paragraphs);

Plaintiff’s Closing Submissions in Chief for Hearing on 12 March 2018, 31 pages (94 paragraphs) (“Plaintiff’s Closing Submissions”);

Plaintiff’s Closing Submissions in Reply for Hearing on 12 March 2018, 14 pages (47 paragraphs) (“Plaintiff’s Closing Submissions in Reply”); and

Plaintiff’s Response to the Defendants’ Consolidated Submissions, 2 pages (7 paragraphs).

The submissions of the defendants consisted of the following:

Defendants’ Outline of Opening Submissions for Hearing on 27 June 2017, 27 pages (80 paragraphs);

Defendants’ Closing Submissions, 96 pages (248 paragraphs);

Defendants’ Supplementary Submissions, 26 pages (91 paragraphs);

Defendants’ Consolidated Submissions on the PSBAA, 5 pages (28 paragraphs); and

Defendants’ Reply to the Plaintiff’s Response to the Defendants’ Consolidated Submissions, 4 pages (15 paragraphs).

EVIDENCE

Overview of the Evidence

The Court received in evidence a total of 19 exhibits that consisted of a large amount of documentary material. That material included, inter alia, the following:

the agreement;

three affidavits of Mr Lui dated 8 December 2015, 27 June 2016 and 21 June 2017, respectively;

an affidavit of Ms Guan dated 20 April 2016;

written correspondence;

business and property related documents; and

ASIC records.

It may be noted that some of the business related documents were controversial, namely, the email correspondence of Jones Lang LaSalle, with respect to the sale of the Kensington land, marked Ex 18 in the proceedings, to which I will return.

The Witnesses

Ms Guan and Mr Lui were the only two witnesses in the primary matter. The defendants sought to call a third witness, Mr Liang. I will briefly turn to the submissions of the parties in that respect. However, I will firstly turn to the credit issues concerning Ms Guan and Mr Lui.

The Credibility of Ms Guan

Counsel for Mr Lui made extensive submissions as to Ms Guan’s credit. He gave notice of this intention to do so at various points in the proceedings, including during Ms Guan’s cross-examination. By and large, little submissions were advanced in reply by counsel for the defendants.
I accept the submissions of counsel for Mr Lui, in that respect, which underpin a substantial portion of my findings that follow, as they reflect my close observations of Ms Guan during her evidence. I note that many directions were given by the Court during the course of Ms Guan’s evidence and the Court raised a question with counsel for the defendants, during submissions, as to how the Court should approach its deliberations if it did not accept Ms Guan’s evidence.
Ms Guan was evasive, argumentative, non-responsive and displayed an unwillingness to engage with questions that were asked of her and to answer them directly, fairly, openly and, in some cases, at all.
An applicable example was provided by counsel for Mr Lui as follows:

Q. You recall, do you not, that there are a number of conversation that Mr Lui has put in his affidavit which are conversations with you?
A. INTERPRETER: Yes. When I was signing the contract and that contract was not fair because the contract was only - had a validation date for ten days. That particular contract was signed in the restaurant. He insisted on me signing it. I didn’t want to sign it. He insisted. He made out the contract as well. He told me that he would get a good price for me. My company already were under liquidation. I said to him that I had no authority to sign that contract. That’s why I only signed for the valid date for ten days. How could you sue me for something a contract that only valid for ten days?
HIS HONOUR: I don’t propose to do anything about this.
Q. Could you stop there, please.
HIS HONOUR: I don’t propose to do anything about this unless you ask for a direction, I’ll make a ruling. In other words, I’ll let you make any forensic decisions you may wish to make about it. The answers are plainly not responsive to the question asked.
AFSHAR: Yes, quite. Might I reserve my position for the moment just to see what comes out of the transcript, but I foreshadow that I’ll probably be objecting to if not all, some of that evidence, because some of it is evidence in chief which has never been led in the past but I will, if you would be minded to make a direction to the witness that she answers my questions, I would be grateful.

Ms Guan obfuscated and hindered the cross-examination process by feigning illness and coughing through questions. Counsel for Mr Lui provided a number of examples of this behaviour as follows:

Example 1:

Q. Thank you. You're content that this affidavit tells the Court the whole story about your interactions with Mr Lui about the Kensington properties. Is that right?
INTERPRETER: Sorry, could you repeat that question, sorry, because--
AFSHAR: Sorry, that was a bit fast, I apologise.
INTERPRETER: No, it's because there was coughing here. I couldn't hear.

Example 2:

Q. You received, did you not, a number of investment - I’ll withdraw that. You received in that office, did you not, a number of developers with whom you wanted to partner to build the Kensington properties up?
A. INTERPRETER: Which developer are you referring to? I don’t have English so I don’t usually receive people on my own.
Q. Did you receive with anyone else, including Henson Liang, any developers at the offices--
INTERPRETER: Sorry, can you stop for a moment, sorry?
AFSHAR: I’ll withdraw that, sorry.
INTERPRETER: No, sorry, because she’s coughing, sorry.
AFSHAR: Your Honour, if the witness wishes to take a moment to--
INTERPRETER: I’m sorry, it’s a bit distracted for me.
AFSHAR: No, that’s okay. That’s all right. Would you like me to repeat the question?
INTERPRETER: Yes, thank you.
AFSHAR
Q. Did you receive either on your own or with someone else, maybe Henson Liang, developers in the Kensington office to do with the Kensington development?
A. INTERPRETER: A long time ago. I don’t remember. That was before the liquidation. After the liquidation I didn’t go there.

Rather than answering questions, Ms Guan coughed strategically throughout her cross-examination to, in my view, interrupt the flow of cross-examination, especially when she was asked difficult questions. The following passage from the transcript records the observations from the bench of Ms Guan’s conduct in the witness box:

HIS HONOUR: There is a question in my mind, by the way, as to whether this interruption is by cause of illness or by reason of some other factor. I will make it clear.
Q. Does the witness require a break in order to deal with the illness she’s presently experiencing?
INTERPRETER: No, it’s just that I’m having headache so the questions he ask me I can’t remember clearly, that’s all. I’m having a headache, I can’t think.
…
LEONG: I’m only proceeding on what my own eyes are telling me about the physical state of the witness.
HIS HONOUR: The physical state of the witness varies depending upon the degree of difficulty in the questioning, that’s the difficulty. That’s the question I’m raising squarely.
LEONG: I won’t make any comment on the demeanour of the witness; that’s not my role.
HIS HONOUR: No. If you make an application that the evidence cannot go forward because of the state of the witness in a way that is fair to her, then I’ll have regard to that submission, but in the absence of the making of such a submission, I’ll be guided by the witness’ own assessment of whether she’s able to proceed or not. In other words, I’ve given her a plain opportunity to have that break. I’m more than willing to do so. She’s declined presently. She seems to have composed herself again now, but if you make that application then I’ll consider it in terms and either grant it or not grant it.
LEONG: In light of the fact that there are other productive things the Court can do--
HIS HONOUR: No, this is simply an adjournment to deal with whatever submission you make as to the state of the witness.
LEONG: Yes, I make an application for ten minutes, say, of adjournment.
HIS HONOUR: Do you wish to be heard on that?
AFSHAR: I don’t mind if it’s ten minutes or whatever but ten minutes means that you will come back and there’ll be another 15 minutes of time before 1 o’clock. You might be minded to take the luncheon adjournment a bit earlier if that assists.
HIS HONOUR: Yes, that would give her a long period of--
LEONG: Or you could come back before, as in maintain the same amount of time, but just take the luncheon adjournment earlier.
HIS HONOUR: That’s just what he said.
LEONG: Yes.
HIS HONOUR: I’ll take that course it seems to me in the circumstances, but it should not be taken that I am doing so because I have formed the view that the witness is necessarily afflicted in such a way as prevents her to give her evidence, but for more abundant caution, in the circumstances the witness is presently now completely composed, my observation is, without any coughing or other impediment beyond that which emerged a moment ago during the course of questioning. I’ll deal with that. Is there anything further on the Liang matter presently just by way of foreshadowing where that’s likely go?
[Emphasis added.]

It might be observed that the transcript of the proceedings does not indicate that the Court intervened at or about that part of the proceedings recorded above to direct the court officer to not provide further assistance to the witness, unless otherwise directed to do so, as it appeared that process was also being employed, by the witness, to distract and interfere with the cross-examiner.
The witness often made speeches, in which she repeated the assertions and claims in support of her case rather than in engaging in a meaningful attempt to discharge her duties as a witness. Further, she repeatedly ignored the Court’s directions to answer the questions put her. The following is an example of the same:

HIS HONOUR
Q. Ms Guan, yesterday I gave a direction--
A. INTERPRETER: I have been sick all along.
Q. Yes. Yesterday I gave a direction--
A. INTERPRETER: Your Honour, I have been sick ever since I had the liquidation.
Q. She is not to interrupt me. Yesterday I gave a direction that she was to answer the questions given to her. This is not the place.
A. INTERPRETER: I know I have to answer but I don’t want to answer the question, but I can remember well.
Q. This is not the place to make speeches.
INTERPRETER: Sorry?
HIS HONOUR
Q. This not the place to make speeches or to give her own version.
A. INTERPRETER: But I can’t remember. I can’t think clearly.
Q. Or to give her own version of events outside what is asked of her. If she needs a break in order to attend to her illness then I will give her that opportunity.
A. INTERPRETER: I feeling very uncomfortable but I don’t want to take people’s time.
Q. No, if she needs an opportunity because she is feeling ill by way of having a break then I will give her that opportunity.

The Court made the following observations on day two her cross-examination, after continual examples of Ms Guan not answering questions put to her:

Q. The evidence that you--
A. INTERPRETER: I want to say something that is not nice. He is a rascal. He was a swindler. I'm not slandering against his character. What has he done for me?
HIS HONOUR: Mr Leong, it's got to the stage where, in the absence of some abatement of this behaviour, I will give consideration to a warning being given to the witness and I will have her charged for contempt of court.
LEONG: Yes.
HIS HONOUR: There appears to me to be a wanton refusal, allowing for some emotion affecting her evidence - which I have - which has had me pause to this point. There is, it seems to be, a desire to expand in the latest outbursts in a way which is both pejorative and nonresponsive to the question. I mention it to you now so I can put more plainly in my mind what is in my consideration in that respect. I'll have the evidence go on a bit further, after I say to Guan something in a moment. And I'm giving you the opportunity if you wish to raise at this point, to raise it.
[Emphasis added.]

Ms Guan evaded direct questions about relatively neutral facts, such as the aims of the Kensington Project and, as the cross-examination progressed, began contradicting her earlier evidence with disregard for the Court and the oath she had taken. By the final day of her cross-examination, she had come to reject many of the propositions that were put to her about her intentions with respect to the Kensington Project, even propositions that she had accepted on the first day of her cross-examination.
The juxtaposition of her evidence from the first and third day of her cross-examination demonstrates Ms Guan’s evasion and duplicity. By the third day, she had begun to repeat the baseless propositions set out in her opening submissions, namely, the case theory that all she wanted to do was to sell the Kensington Project. Illustrations of that conduct were set out in a table proposed by counsel for Mr Lui, which is a fair representation of the proposition advanced by him, which I have accepted. That table is extracted below:

Table 1: Evidence of Ms Guan – cross-examination

First day of cross-examination

Third day of cross-examination

Q. What did Shuangfu want to do with the Kensington properties that it had bought one after the other?

A. INTERPRETER: Develop, develop and build, build - sorry, build houses, sorry, property developing, sorry.

[Emphasis added.]

Q. I'm going to put a series of propositions to you in the way that I've just described. In 2013 and 2014 you wanted a developer to invest in the Kensington development. Do you agree with that or do you disagree with that?

A. INTERPRETER: I wanted to sell that. My intention was to sell that.

[Emphasis added.]

Q. And this was going to be a big development, wasn't it?

A. INTERPRETER: Yes.

Q. This was going to be mixed residential and commercial property, wasn't it?

A. INTERPRETER: Correct.

Q. You had been working on the project plan since 2013, hadn't you?

A. INTERPRETER: Yes, because I came as a business migrant and I need to do some project.

Q. But you'd been working on it since 2013, hadn't you?

A. INTERPRETER: Yes.

Q. At the time that the ninth lot was purchased, Shuangfu did not have the funds to pay for the development of the Kensington properties, did it?

A. INTERPRETER: That's right.

Q. So what you had done, so just to perhaps cover this bit off, in or around 2013, was that the time when you found the Kensington properties and determined that it was suitable for the development you wanted to do?

A. INTERPRETER: Yes.

[Emphasis added.]

Q. So you're saying that your intention in 2013 and 2014 was to sell the Kensington development? Is that what you're saying?

A. INTERPRETER: Yeah. Yes, because I was too much in debt, owing a lot of money, I was under a lot of pressure and I wanted to sell that.

Q. I suggest to you that in 2013 and 14 your intention was to develop the Kensington project. You accept that?

A. INTERPRETER: This is your belief, but that's not my belief.

Q. And that you wanted a developer to invest in the development of the Kensington properties because you didn't have the money to develop it fully. You accept that?

A. INTERPRETER: I disagree. I, I, I wanted to sell that. I have to sell that, because I owe money. And, and in fact I have already sold it. At the time when this, I signed this agreement with him, the piece of land, it had already been.

[Emphasis added.]

Q. Was there a project to develop the Kensington properties?

A. INTERPRETER: Yes. Yes.

Q. The plan in 2013 and 14 was, I suggest to you, that when you had a developer invest in the development you would retain a share in the project going forward, do you agree with that or do you disagree with that?

A. INTERPRETER: I was relatively small and if I find a developer it will be out of proportion to restructure the company and I only have four or five pieces of land, how could I find - how could I in a position to find a developer?

Q. The alternative plan in 2013 and 2014 was that if you could not retain a share you would obtain an option to buy back into the project isn’t that right?

A. INTERPRETER: It’s very hard to find a partner so just simply to sell it to make things easier.

Q. When you say it was difficult to find a partner, is that you saying that you did try to find a partner on those terms?

A. INTERPRETER: I thought about it but it was very difficult to do so the best way is to sell it.

[Emphasis added.]

Q. You, on behalf of Shuangfu, approached development companies and wanted them to invest in the project and you offered them a share of the returns when the project was successful. Isn't that right?

A. INTERPRETER: Yes.

Q. Then that was the business. What you wanted to do was develop, or have the Kensington properties developed, sold, so that you can get a return. Isn't that right?

A. INTERPRETER: Yes.

Q. Because you didn't have the money, you needed someone else's investment in order to not only purchase the property, but build it up and organise it for sale?

A. INTERPRETER: Yes.

[Emphasis added.]

Q. Let me put it again so that it’s clear to you. As part of the plan in 2013 and 2014 you wanted to get a developer in, keep a share in the business and then obtain fees for managing the development, isn’t that right?

A. INTERPRETER: That’s what you are in mind, not me.

Q. Do you agree or do you disagree Guan?

A. INTERPRETER: Disagree, that’s what I was thinking.

Q. That was what you were thinking or that wasn’t what you were thinking?

A. INTERPRETER: No that wasn’t because I - I thought this was not practical, that’s just like wild imagination.

Q. You had invested millions of dollars of your own funds into the development isn’t that right?

A. INTERPRETER: Uh-huh.

Q. The plan was in 2013 and 2014 to come to an arrangement with a developer so that you will get back some of your investments in the development isn’t that right?

A. INTERPRETER: That - it has nothing to do with this. Nothing to do with this. I wanted to sell it. I have already sold it. I sold it in 2014.

[Emphasis added.]

Towards the middle of her cross-examination, Ms Guan began to attack the agreement. Although she had admitted the agreement in her defence, had annexed the agreement to her own affidavit and her counsel had accepted the English form of the agreement, Ms Guan gradually descended, on the second day of her cross-examination, into an hysterical series of accusations as to “fraud”, as earlier mentioned, in relation to the agreement.
On the third day of cross-examination and day 5 of the trial, Ms Guan resumed her assertions in relation to the agreement complaining that the signature was a different size in the copy of the agreement annexed to her affidavit and the version sent to Mr Lui’s expert. That behaviour in giving evidence, reinforces my view that Ms Guan is a person prone to lying when she thinks she would gain an advantage by that behaviour and she did so in giving her evidence.
At the height of that conduct, she claimed the following:

that Mr Lui had somehow changed the size of her signature on the agreement;

that Mr Lui had “processed” the document, that “it has been altered”; or

that she had been “forced” to sign it.

None of those claims were pleaded or raised at an earlier stage of the proceedings. Having regard to the course of the proceedings and my observations of Ms Guan in cross-examination, I reject those claims.

When challenged on her memory, she gave a series of answers, reflecting in a significantly adverse way as to her credit. I accept the submissions of counsel for Mr Lui, in that respect, that Ms Guan had deceitfully curated her evidence to serve her interests in this case. That is illustrated by the following:

Q. That’s nowhere to be seen in your affidavit, is there?
A. INTERPRETER: Yes, he has said so many - too many thing, yes, too many things. Do I write everything? I only write down things which are useful for me. For things which are not useful for me, I don’t put them down.
Q. What you’re saying is what you put in your affidavit is what is useful for you, is that right?
A. INTERPRETER: Correct. For things which are useful for me, I remember. For things which are not useful for me, why would I try to remember them?
[Emphasis added.]

And later in her cross-examination, Ms Guan gave the following evidence:

Q. You were there when someone from Jones Lang LaSalle gave a copy of the information memorandum to do with the Kensington properties to Mr Lui?
A. INTERPRETER: I can't remember.
Q. You can't remember because all your remember is what helps your case, isn't that right?
A. INTERPRETER: If it's useful for me, then I'll remember. If it's not useful for me, what's the point in me remembering and there's no outcome. What can I do?
Q. If it doesn't help your case, you simply forget it. Is that what you're telling the Court?
A. INTERPRETER: Anyhow, yes - but anyhow, whoever can sell the land can sell it; who can buy, can buy it.
[Emphasis added.]

More generally, Ms Guan deflected and interrupted questions rather than answering them directly and honestly and chose to hold onto untenable positions even when confronted with documents or with the logic of the opposing view. For example, when it was put to Ms Guan that she had not protested to Mr Lui about the contents of the agreement (to claim that the alleged “ten day” term was missing) when she had received it from him the following exchange took place:

Q. Can I just ask you to go to paragraph 42 of your affidavit? That’s at page 147 of the court book.
…
INTERPRETER: Yeah, I have not seen it again. I have things to say. Can I say it, please?
HIS HONOUR
Q. You can answer the questions that are asked of you.
A. INTERPRETER: No. I want to say something to the Court.
Q. I want you to answer the questions that are addressed to you.
A. INTERPRETER: I want to add things.
Q. No, you cannot, you must answer the questions that are put to you. At the end of the cross-examination your counsel will be able to ask you questions in re-examination.
AFSHAR
Q. The evidence that you gave a moment ago about forgery and this ten day term is false because when you received the document from Mr Lui, as you’ve said in paragraph 42, you did not raise any of these matters; isn’t that right?
A. INTERPRETER: Actually, he - actually, he was the - he was not telling the truth. Well, let the - let the - let God punish me if I'm telling anything that's not true. He covered it up when he made a photocopy. He covered those words, handwritten words, and he made a photocopy. If the words "validity period, ten days" were not in the original copy, then my whole family, I don't mind if we are condemned to death. This is forgery to deceive me.
Sorry, I'm very emotional. I am the mother for three children. My children are all very good, very excellent people. I am obviously teaching them, "You must not tell a lie. You mustn't do anything harmful to other people." We must not do anything harmful to other people and I've been coming - I've come here from China and it has not been easy. I do not have the ability to deceive other people, but then, unfortunately, I have been deceived by other people. Your Honour, you can either believe my words, or you can also not believe my words. I have created so much trouble for everybody.
HIS HONOUR: You can continue.
AFSHAR: Thank you.
Q. I'm going to suggest to you that if, indeed, all that you now say in the witness box were true, then, upon receiving the contract from Mr Lui, you would have raised it all at that time, but you didn't, and that's because - can I just--
A. INTERPRETER: I told my lawyer already, this is false, or this fake. I already told my lawyer about that at that time.
Q. Did you tell your lawyer about this document being a fake when you first received a letter of demand from Mr Lui's lawyers?
A. INTERPRETER: Yes, and also one more thing I wanted to tell the Court—

The letter her solicitor sent to Mr Lui’s solicitors did not make any mention about the agreement being fake or that there was a “ten-day” term. An inference may be drawn that Ms Guan did not complain to her solicitor after she received the agreement from Mr Lui because there was no such “ten day” term. The “ten day” term was a falsification.
Her obstinate and obstructionist behaviour was another factor that undermined her credit. During the second day, the following exchange took place:

AFSHAR: I will carry on. I'll have to make submissions, ultimately, in relation to some of these answers.
HIS HONOUR: I have been weighing up whether I should take a step in relation to this evidence, reluctantly. I understand that you're proceeding under some difficulties and putting questions that you are required to put as your professional obligations require. We'll see how things go a little further. I'm not sure how much further you have to go, but, subject to the course of things, if they continue the way they are, then I'll give consideration as to whether I should take a further step in the proceedings.
I've given at least three directions to the witness, which are orders of the Court in relation to the evidence, all of which have variously been ignored. That gives rise to obvious questions, but, at the moment, I'm preferring to take a course which is less in the nature of intervention and more in the nature of having the proceedings concluded in a timely way rather than, as I said, some other course.
AFSHAR: Yes, and I will continue on with my questioning.

Ms Guan also feigned disinterest in the affairs of her companies, which behaviour strained credulity. Counsel for Mr Lui provided the following examples with which I concur:

She claimed variously that she did not know much about what was happening with her multi-million dollar project, or that she had forgotten everything, because she had been sick since Shuangfu was placed into administration.

She purposefully downplayed Mr Liang’s role in her businesses, so as to support the contention that Mr Liang was merely a real estate agent who had introduced Anson City to Shuangfu. As mentioned, Mr Liang was a guarantor to the loan to Shuangfu and Shuangxing.

Her evidence about her engagement in the business strained credulity, especially, as she progressively distanced herself from the process of finding a development partner.

When asked about the first conversation with Mr Lui about the Kensington Project, she gave the following evidence:

Q. You don't remember, as in it didn't happen, or you don't remember and it may have happened?
A. INTERPRETER: I - that was the first time I met with Lui and it was not - I didn't talk very much. They were friends. They were talking.
Q. But it is likely that - you met with Lui across the road from the Kensington properties, didn't you?
A. INTERPRETER: Yes, we had something to eat as well.
Q. ... It is likely, given that you were across the road from the Kensington properties, that you or Mr Liang spoke to Lui about the development of the Kensington properties. Isn't that right?
A. INTERPRETER: I don't remember. I don't know. I didn't care very much what they were talking about. They can talk about whatever they wanted. It's been since - it's been a long time ago since 2013. I can't really remember everything.
Q. Sorry if I'm paraphrasing what you said, did you just say that you weren't interested or didn't care what they were talking about?
A. INTERPRETER: That's right. I didn't want to be involved. I didn't want to worry that much.
[Emphasis added.]

In my view, Ms Guan’s evidence portrays intentional fabrication and reconstruction of conversations. For example, she accepted in cross-examination that if she had disagreed with any portion of Mr Lui’s evidence, she would have expressed her disagreement with the evidence. Yet, in her affidavit she had not disagreed with and had not denied significant portions of Mr Lui’s evidence, including a conversation that occurred on or around 30 December 2014 recalled by Mr Lui in his affidavit affirmed 8 December 2015. That conversation, recorded at para 63 (“the para 63 conversation”), was the subject of much debate as to its use in the case of Mr Lui and is extracted below:

MS GUAN: I have big financial problems with that project I could not repay the mortgage and now the mortgage company is taking over and trying force sale it and I will be in big trouble.
MR LUI: Tell me the detail of the mortgagee's sale.
MS GUAN: As you know, A Capital is the mortgagee. I really hope you can help me to find an investor to join with me and pay out Owen or buy the project. If you do this, you are saving me from deep trouble. I really need your help and I will pay you a lot I know you have lots of friends in the industry. I know you can help and please help me. You save me from deep trouble and of/course I will pay you a lot for your help.
MR LUI: Well it is a big deal and if I can help, I will try. Anyway, it is a business, therefore we need to make some kind of agreement between us to do this business and if it is successful, how I can get my fair go for my work.
MS GUAN: Sure. If you helped in this business, I of course will be grateful and will pay you. What I want now is to find out an investor to take over this project as soon as possible. The mortgage company has engaged an agent to sell this land by expression of interests bidding. If you can get your friends or potential buyers to participate in the bidding, I will give you commission if the bidding process succeeds.
MR LUI: In this case, I think I will try. But before we can do this business, we
need to have some details of the terms and sign an agreement between us so if you sold this land with my assistance, I should be paid accordingly.
MS GUAN: Sure, sure. We can sign the agreement. You prepare it and then we both sign it I will not let you work and help me for nothing. I will pay you a lot since you will save me if the land can be sold.

Ms Guan was an unreliable witness; her evidence was inconsistent with and superseded by the major document in this case, namely, the agreement. I agree with Mr Lui’s submission that the agreement stands both as evidence of the parties’ agreement but also as evidence of Ms Guan’s intentions in relation to the Kensington Project.
Further, I do not consider Ms Guan should be accepted as a witness of truth. To the extent that her evidence is inconsistent with Mr Lui’s evidence (having regard to the findings about his evidence made below) and with any of the contemporaneous documentary evidence, it must be rejected and given no weight.
As a result, unless the evidence of Ms Guan is corroborated, I do not propose to accept it. In particular, I do not accept Ms Guan’s account of the para 63 conversation.

The Credibility of Mr Lui

There was also a challenge as to the credibility of Mr Lui.
My overall observation of Mr Lui’s evidence is that he was a truthful witness whose evidence was reliable although sometimes prone to exaggeration or unnecessary embellishment.
I consider that Mr Lui gave his evidence in a careful and measured way. As challenged in cross-examination, his demeanour was not one of evasion or argumentative, but rather he refuted questions essentially designed to advance the defendants’ case theories, and drew distinctions or made concessions where appropriate.
Further, I do not consider his evidence was substantially damaged by cross-examination and in all respects his evidence is to be preferred to that of Ms Guan’s.
Counsel for defendants referred to the viva voce evidence of Mr Lui, which it was contended consisted of several contradictory or inconsistent statements. The submissions by counsel for the defendants, in that respect, and my consideration of them appears below:

It was submitted, Mr Lui tried to take credit for helping Fairway fill in the expressions of interest forms. Yet, photographic evidence before the Court revealed it was, in fact, Mr Macree who did this. I do not accept that contention. In the affidavit of Mr Lui sworn 27 June 2016, the nature of the relevant photograph was described as follows: “Photograph of Mr John Macree of JLL filling out expression of interest forms by Fairway…”. The fact of another person filling out the forms does not prove that Mr Lui did not help or assist. Further, the photograph was also annexed to Mr Lui’s affidavit sworn 21 June 2017 where, at para 3, he deposed: “Annexed hereto and marked with the letter “A” are the following photographs which I either took or observed being taken” (emphasis added). Thus, it follows that Mr Lui was also present at the time of the Fairway expression of interest forms were being completed. (The significance of Fairway will be discussed further below).

It was contended, Mr Lui tried to take credit for introducing Mr Pak to the Kensington land and drawing out the winning bid. The documents before the Court, counsel for the defendants submitted, showed otherwise. In this respect, reliance was placed upon the initial letter of offer from Anson City dated 4 November 2014 (“the letter of offer dated 4 November 2014”), which was addressed to Mr Liang and not Mr Lui. It was contended that the same letter demonstrated that Mr Liang introduced Mr Pak to the Kensington land. Additionally, as the letter was signed by Mr Hu, it was submitted that Mr Hu, therefore, spoke for Mr Pak. I will ultimately find that the letter pre-dates the agreement and does not undermine Mr Lui’s account vis-à-vis performance, I will return to this contention within the body of the judgment.

It was submitted that in cross-examination, Mr Lui denied understanding the question when asked if he knew how a SIV worked and how much money it required. It was submitted that “[t]he Court was alive to this tactic”. Mr Lui answered evasively, “I don’t understand your question…” when asked if he knew where the $5 million (which such visas require) goes once it arrives in Australia, be it real estate or businesses. Yet, Mr Lui’s own Elite 100 website clearly explains how a Significant Investor Visa works, how much money it requires, and how Elite 100 can provide the “best options for your investment” with its core business operation in “[f]acilitating project and property investment”. Mr Lui then admitted (only because he was shown the website) that he was familiar with the Elite 100 website, and even offered that the SIV information was found on the “last page”. This shows that his earlier “I don’t understanding your question” answers were just an escape tactic, which he abandoned upon seeing the Elite 100 website. I do not accept that this evidence represents evasion or inconsistency but rather a witness recalling information which provided clarification and relevant information bearing upon the question. He simply made a concession when presented with a relevant context.

The defendants made a further series of other contentions challenging Mr Lui’s credibility. It is convenient to deal with them, to the extent required, globally, although I do so in the context of my overall observations of Mr Lui which I have referred to above. A summary of the defendants’ submissions, in that respect, appears below:

In cross-examination, Mr Lui, undoubtedly cognisant of the Act, began to use the word “investor” in an attempt to solve the problem he knew it posed. This caused him to contradict himself vis-à-vis his affidavit (or within his cross-examination) and/or defend commercially impossible positions:

By Mr Lui’s affidavit affirmed 8 December 2015, Mr Lui said that he “introduced the Kensington Project to my friend Justin Chan” and that he told Mr Chan, “Mr Pak has a good chance to win the bidding process if he increases his bid” (i.e. a bid for real estate). Yet, in cross-examination, Mr Lui switched to say he brought in Mr Chan (and thus Mr Pak) as an “investor” (i.e. not a purchaser of land).

Mr Lui initially maintained in cross-examination that his job was to find an “investor”. However, Mr Lui “eventually” admitted that his job was to find the best price for the Kensington land, after first investigating its development approval status, which he “tried to do”.

Mr Lui said in his affidavit affirmed 8 December 2015 that he asked Mr Qian: whether he remembered “the property” in Kensington and “[a]re you still interested in that property?”. He also deposed that he was “aware” that Mr Liang had travelled to Mr Qian to “sell the Kensington project to Kerry Properties”. This is “clear evidence”, it was submitted, of a potential real estate transaction. Yet, in cross-examination, Mr Lui switched to paint Mr Qian as a potential “investor”, not a buyer of real estate, and to allege that he had only ever been interested in “investing”. Mr Lui incredibly denied that his question to Mr Qian, namely, “[a]re you still interested in that property?”, equated to ‘[w]ould Kerry Properties still like to buy the Kensington land?”.

By Mr Lui’s affidavit affirmed 8 December 2015, he deposed that he said to Ms Guan, on 29 or 30 December 2014: “so if you sold this land with my assistance, I should be paid accordingly”. Yet, in cross-examination, when asked to confirm that these clear words mean what they say, Mr Lui, it was submitted “wriggled out” by saying: “But in my mind, it’s always try to help her with investor and what I’ve written here is what you read, yeah”. What makes this “incredible” is that Mr Lui admitted to personally drafting his affidavit carefully, and to knowing the differences in language between a buying company’s shares and buying land (when he drafted his affidavit).

To further “wriggle out” of the words, “so if you sold this land with my assistance, I should be paid accordingly”, Mr Lui then, it was submitted, invented an allegation that he told Ms Guan: “any effort I put in and I should be paid”. When challenged why this new allegation was not in his affidavit, Mr Lui blamed the differences between English and Chinese contracts (an illogical explanation since the agreement being a Chinese contract has nothing to do with the drafting of Mr Lui’s affidavit). When challenged that he had never said to Ms Guan, “If I find a joint venturer… I should be paid accordingly”, Mr Lui alleged that he had said it “many times”. When asked why his affidavit contained no references to a “joint venture”, Mr Lui gave a nonsensical response about the parties’ “motivation”.

Counsel for the defendants accepted that the above construction of real estate agent was “counter-intuitive” but maintained that “if one drills down to the substance of the Act, the section 3 definition of real estate agent, that’s how it works”.

On the defendants’ case, Mr Lui was acting as an agent for Ms Guan: “He was the real estate agent finding buyers of the land for her, and then introducing them to the vendor, and also negotiating with a view to inducing and/or inducing them to make an offer for the land, right”.

The judgment of Ball J in Ryde No 4 is “highly persuasive” and supports a wider definition of “agent”. Therefore, “to make an offer to enter into a contract… does not need to be the vendor’s agent. Buyers’ agents are included as well” (see, in particular, [91]).

Turning to issue before the Court, counsel for the defendants sought to emphasise the novelty of the case, being a set of facts and circumstances for which no case law appears to have traversed: “it's a situation where a real estate agent gives real estate agent services to a director of a company who is the registered title holder of land that is being sold by the mortgagee in possession, who has itself its own agent, Jones Lang LaSalle”.

It was also contended, “it is not necessary for the person receiving the real estate agency services to have the power and authority to cause the sale to happen… because of the way the statutory language is written. All that is needed is to induce or attempt to induce or negotiate with a view to inducing any person to make an offer to enter into a real estate transaction, so all Kevin Lui had to do was go out into the Chinese business community and induce, or attempt to induce those guys to make an offer to enter into a real estate transaction”.

In summary, as to the construction contended for by the defendants, counsel for the defendants suggested that the Court should work through the legislation in a “step-by-step” fashion.

Finally, in the Defendants’ Reply to the Plaintiff’s Response to the Defendants’ Consolidated Submissions, the following submissions were further advanced in supplementation of the above contentions.
First, in furtherance of submissions as to the wide approach to be taken to the construction of “real estate agent” under s 3 of the Act, the defendants submitted: “Nowhere does the PSBAA say that ‘as an agent’ means ‘as an agent for the buyer’ or ‘as an agent for the seller’ only”. If the Court were to limit the definition in that way, “[t]he Court would essentially be deleting sub-sections (b)-(e) in the s 3 definition… A person would only be a real estate agent if that person was an ‘agent’ for a ‘real estate transaction’ (sub-section (a))”. By contrast, sub-sections (b)-(e) do not require things to reach the stage of “purchase” or “sale”; it was contended that “merely inducing someone to make an offer, or merely introducing someone is enough”.
Second, the “touchstone” of Ball J’s decision in Ryde No 4 is, it was submitted, “whether the person being sued to pay a fee was a ‘consumer of real estate agency services’ as provided by the person doing the suing”. It was contended that by that “touchstone” the “As an Agent Box” is not restricted “to those real estate agents who are only agents for the buyer or seller”. This submission appears to connect with the defendants’ earlier submission as to the “involvement” of Ms Guan, namely, she “had a keen interest in seeing the Kensington land sold for as much as possible” (notwithstanding the fact she was not the vendor/seller).
Lastly, the agreement, it was contended, required Mr Lui to find a winning bidder for the Kensington land for the highest price possible and that everything Mr Lui did was in furtherance of providing that “service”. That service, it was submitted, “was clearly a real estate agency service. That is what real estate agents do: they find buyers for land at the best price possible”. Ms Guan was a “consumer” of that service.

The Act

Section 3 sets out the definitions for “agent” and “real estate agent”. An “agent” is defined as follows:

agent means:
(a)  a real estate agent, or
(b)  a stock and station agent, or
(c)  a business agent, or
(d)  a strata managing agent, or
(e)  a community managing agent, or
(f)  an on-site residential property manager.

A “real estate agent” is defined as follows:

real estate agent means a person (whether or not the person carries on any other business) who, for reward (whether monetary or otherwise), carries on business as an auctioneer of land or as an agent:
(a)  for a real estate transaction, or
(b)  for inducing or attempting to induce or negotiating with a view to inducing any person to enter into, or to make or accept an offer to enter into, a real estate transaction or a contract for a real estate transaction, or
(c)  for the introduction, or arranging for the introduction, of a prospective purchaser, lessee or licensee of land to another licensed agent or to the owner, or the agent of the owner, of land, or
(d)  collecting rents payable in respect of any lease of land and otherwise providing property management services in respect of the leasing of any land, or
(e)  for any other activity in connection with land that is prescribed by the regulations for the purposes of this definition,
but does not include a person who carries on business as an auctioneer or agent in respect of any parcel of rural land unless the regulations otherwise provide.

Note.
This definition is not limited to the selling of land and extends to an agent acting on behalf of the buyer of land (a buyer’s agent).
As noted in section 168 of the Retirement Villages Act 1999, a selling agent acting on the sale of residential premises in a retirement village must be licensed as a real estate agent under this Act.

“Real estate transaction” means “the purchase, sale, exchange, lease, assignment or other disposal of land, whether or not an auction is involved”.
Section 8 provides as follows:

8   Agents required to be licensed
(1) A natural person must not act as or carry on the business of (or advertise, notify or state that the person acts as or carries on the business of or is willing to act as or carry on the business of):
(a)  a real estate agent, unless the person is the holder of a real estate agent’s licence, or
(b)  a stock and station agent, unless the person is the holder of a stock and station agent’s licence, or
(c)  a business agent, unless the person is the holder of a business agent’s licence, or
(d)  a strata managing agent or community managing agent, unless the person is the holder of a strata managing agent’s licence, or
(e)  an on-site residential property manager, unless the person is the holder of an on-site residential property manager’s licence or a real estate agent’s licence.

Maximum penalty: 100 penalty units.
(2) A natural person is not entitled to bring any proceeding in any court or tribunal to recover any commission, fee, gain or reward for any service performed by the person:
(a)  as a real estate agent, unless the person was the holder of a real estate agent’s licence, or employed the holder of such a licence, at the time of performing the service, or
(b)  as a stock and station agent, unless the person was the holder of a stock and station agent’s licence, or employed the holder of such a licence, at the time of performing the service, or
(c)  as a business agent, unless the person was the holder of a business agent’s licence, or employed the holder of such a licence, at the time of performing the service, or
(d)  as a strata managing agent or as a community managing agent, unless the person was the holder of a strata managing agent’s licence, or employed the holder of such a licence, at the time of performing the service, or
(e)  as an on-site residential property manager, unless the person was the holder of an on-site residential property manager’s licence or a real estate agent’s licence, or employed the holder of such a licence, at the time of performing the service.

(3) This section applies to a natural person whether or not the person is a member of a partnership.
(4) The fact that a particular activity is an activity for which more than one class of licence may be appropriate does not require the holding of more than one type of licence so long as at least one of the licences that is appropriate to the activity is held.
(5) For the purposes of this section, a person is not considered to carry on a business merely because the person is a member of a partnership that carries on that business.
Note.
Subsection (5) makes it clear that “silent” partners are not required to be licensed.

Consideration: Real Estate Agent Issue

The defendants contended that the provisions of s 8(2) of the Act were a bar to Mr Lui making the claim pursuant to the agreement for damages in this Court.
In order to make good that contention the defendants must establish that Mr Lui was performing the service of a real estate agent for a natural person, namely, Ms Guan.
Section 3 of the Act provides definition of real estate agent. By virtue of that definition the defendant must establish for the purposes of these proceedings that Mr Lui was a person who carried out the business of an agent for a real estate transaction as defined in the Act. This shall be described, as the defendants did, as the first issue.

The First Issue

The first issue debated by the parties in isolation from the questions as to whether Mr Lui was engaged in performance of the agreement in a real estate transaction but those considerations, at least as a matter of fact, cannot be entirely dislocated.
The first issue, so described, is a question of fact. An evidentiary onus lies on the defendants in that respect.
The starting point for the resolution of the first issue is to construe the relevant provisions and then to carefully examine the facts: Farrell v Bannister (1952) 52 SR (NSW) 73 (“Farrell”); Lend Lease Real Estate Investments Ltd v Charter Hall Retail Management Ltd [2011] NSWSC 1624 (“Lend Lease”); Sims v Gawne [2005] NSWSC 750 (“Sims”) at [21].
As to the meaning of the expression “carries on a business” for the purposes of the definition of a real estate agent in s 3 of the Act I adopt, with respect, the analysis of Ball J in Williams at [70] as follows:

In order to carry on business, repetition and continuity of the activities which characterise the business are necessary. However, an isolated activity with the intention of repeating it is sufficient. As Lopes and Kay LJJ said in Re Griffin; Ex parte The Board of Trade (1890) 60 LJQB 235 at 237, cited with approval by Barwick CJ in Fairway Estates Pty Ltd v Federal Commissioner of Taxation [1970] HCA 29; (1970) 123 CLR 153 at 165:
If an isolated transaction, which if repeated would be a transaction in a business, is proved to have been undertaken with the intent that it should be the first of several transactions, that is, with the intent of carrying on a business, then it is a first transaction in an existing business.

I also accept his Honour’s broad description of the principles of the Act in Ryde No 4 at [90].
In my view, there is a relatively straightforward factual basis upon which the defendants’ reliance upon a bar under s 8(2) of the Act must be rejected by reference to the first issue.
Assuming that it may be found that Mr Lui’s services to Ms Guan in relation to the Kensington Project amounted to services as a real estate agent (and I will conclude that no such finding is properly available), the defendants failed to establish that Mr Lui provided the services other than as a one off transaction: Bannister (1952) 52 SR (NSW) 73 at 74 per Street CJ; Simpson at [146]; Mathas v Slater [2009] NSWSC 1397 at [111].
There was no evidence that Mr Lui intended to be involved in future transaction of the kind engaged on behalf of Ms Guan or real estate transactions of any kind. There was no evidence of Mr Lui intending to repeat that business: Williams at [70]. Those propositions were never put to him in cross-examination.
A person who is found to have been involved in an isolated transaction of the kind in question or is not otherwise found to have been involved in a "business" of a real estate agent is not prohibited from recovery: Farrell at 74 per Street CJ; see also Milne v Coxton (unreported, Supreme Court of NSW, Clarke J, 1985) BC8700884 (at 53).
In this case, the defendants have failed to establish, as a matter of fact, that Lui conducted a “business” of a real estate agent. Counsel for the defendants was entirely unsuccessful in putting such a proposition to Mr Lui in cross-examination. He accepted Mr Lui’s rejection of the propositions (albeit that they were on occasions not put in an entirely clear way). The defendants called no evidence in that respect.
In the Defendants’ Reply to the Plaintiff’s Response to the Defendants’ Consolidated Submissions, the defendants’ made an unsuccessful attempt to demonstrate there was some evidence that Mr Lui’s business concerned real estate either historically or as a present day operation.
None of those submissions referred to Mr Lui’s evidence. Further, the evidence that the defendants sought to rely upon, as to Mr Lui’s prior activities as a real estate agent, in this respect, was threadbare, inconclusive and ultimately did not establish the proposition that the defendants sought to put. My reasons for that conclusion are in two parts.
First, the defendants sought to rely upon Mr Lui’s past interactions with Mr Liang and Mr Qian, as derived from Mr Lui’s affidavit and answers during cross-examination, to demonstrate that Mr Lui was involved in “a whole raft of real estate work”. In support of that contention, the following evidence was referred to:

Mr Lui’s conversation with Mr Liang in 2013 as recorded at para 20-22 of Mr Lui’s affidavit affirmed 8 December 2015, by that conversation Mr Liang seeks advice as to purchasing the Kensington land, to which Mr Lui replied: “If you want to buy them, that is your choice and I have no views. I cannot advise you without getting your documents and doing studies”. It may be noted that counsel for the defendants incorrectly characterised the exchange as “advice” by Mr Lui.

Mr Lui’s response to enquiries from Mr Qian as described during his evidence at the hearing (extracted below). The defendants, in this respect, submitted that Mr Lui’s conduct concerned “searching for properties to purchase for Alfred Qian”, which once again appears to be a mischaracterisation of the evidence before the Court:

Q. Now you have done business with Alfred Qian before and earned money from doing business with him, haven't you? You have done business with Alfred Qian before?
A. Alfred asked me to look for properties in Sydney. For Kerry Properties, for Shangri La Hotel, for sites which can build different hotels, like Traders or Shangri La or the Hotel James, they have a series of bands of the group.
…
Q. Your job, what you were trying to achieve is to show this information memorandum to as many rich, Chinese, say, Hong Kong or mainland Chinese businessmen as possible. That’s what you were trying to do; correct?
A. No. Not all but I did give it to one or two and then I talked to Alfred accordingly because somebody know the project and I talk to Mr Tang accordingly because they know the project. And then also I talked to Mr Zhao, with the site, there were three people I, I introduce to the site. Yeah.

The evidence of Mr Lui as to his interactions with Mr Liang and Mr Qian are not demonstrative of prior activities as a real estate agent. Further, it may be added, the submissions advanced by counsel, in this respect, which were described as “basic facts”, appeared to be based upon a highly optimistic interpretation of a rather slender piece of evidence (In my view, the defendants contention was not supported by the evidence at all).
Secondly, the defendants sought to rely upon Mr Lui’s connection to Elite 100, which the defendants’ contended was a business that conducted real estate transactions. In advancing that submission, counsel for the defendants sought to eradicate any form of delineation between the activities of Elite 100 and Mr Lui, in order to draw connections between the business of Elite 100 and Mr Lui (Mr Lui was a 40% shareholder). The highest point of the defendants’ case, as to Elite 100 demonstrating prior conduct of real estate transactions (notwithstanding the fact that Elite 100 was not party to the agreement), was an extract from the Elite 100 website that described one of its “core” business operations (of which there were five listed) to be: “facilitating project and property investment”. That evidence cannot be accepted as sufficient to sustain the proposition that Elite 100 thereby conducted real estate transactions and, therefore, Mr Lui was, by extension, involved in and “a whole raft of real estate work”.
It may be noted, in that respect, counsel for the defendants never put to Mr Lui that, by his connection to the work of Elite 100, he was thereby involved in real estate transactions. During cross-examination, counsel for the defendants, with respect to the business of Elite 100 and the involvement of Mr Lui, sought to draw, however, a connection, albeit tenuous, between SIV and real estate, as follows:

Q. The idea is that the overseas Chinese business person brings $5m to Australia and invests in a variety of things and they get the visa. That's how it works?
A. I don't understand your question.
Q. This visa, significant investment visa, the way it works is you come from overseas, you bring $5m, you buy real estate or businesses and then you get the visa, is that right?
A. I don't understand your question because it's a government regulation and immigration regulation. And your question is - I cannot answer.
Q. Do you know how much money you need to pay in order to get the visa?
A. I never done one.
Q. Now, do you charge a fee to help Chinese business people come to Australia and get a visa? You charge a little bit of money just to do the job.
A. I don't understand your question.

In any event, as mentioned, Elite 100 was not party to the agreement, nor was it ever suggested that Mr Lui entered the agreement in anything other than a personal capacity.
Overall, the Defendants’ Reply to the Plaintiff’s Response to the Defendants’ Consolidated Submissions appeared to be an attempt to sieve through to evidence to repair a lacuna in the defendants’ case with respect to this issue. It was unsuccessful.
Importantly, unlike the case in Williams, there was no evidence that Mr Lui and Ms Guan discussed in any other similar transaction either in relation to another property or generally into the future.
Overall there was no evidence to support that Mr Lui had engaged in prior activity as to as a real estate agent or intended to carry on any such businesses.
This conclusion suffices to reject the defendants’ contention as to the operation of a prohibition on recovery pursuant to s 8(2) of the Act.
For completeness, I will review other bases for the defendants’ contentions. Those contentions must also be rejected. I will initially turn to the balance of consideration under the first issue and then briefly deal with the second and third issues as stipulated by the defendants.
In my view, there was insufficient evidence to support a conclusion that Mr Lui carried on a business as a real estate agent in or in connection with the performance of his work under the agreement. Further, I do not consider he carried on a business as an agent for a real estate transaction for Ms Guan for reward.
In further summary, the defendants submitted, in support of its contention that Mr Lui carried out the business of an agent for a real estate transaction, Ms Guan was a consumer of real estate services, upon the following bases:

Mr Lui was tasked with finding a winning buyer of “the Kensington land”. It was true Mr Guan could not sell the land but she was free to bring in a winning bidder and Mr Lui had agreed to in that respect.

Ms Guan’s interest in the land was “exactly the same” as that of the mortgagor/registered proprietor (Shuangfu) and the mortgagee in possession/vendor (A Capital), namely, to “see” if the land could be sold.

There is no difference in A Capital using Jones Lang LaSalle to find a buyer of “the Kensington land” and Ms Guan using Mr Lui. Ms Guan’s economic interests were directly affected by Mr Lui’s provision of real estate services in the same way as A Capital’s was affected by Jones Lang LaSalle’s provision of real estate services.

The capacity of Mr Lui “to bind” is not relevant to determining whether he was a real estate agent.

It is sufficient to introduce others to the owner or to be an agent of the owner. Mr Lui “introduced” in a relevant sense and “negotiated” and “induced” with respect to the land transaction. Mr Lui did not have to be a registered real estate agent.

Mr Lui was engaged generally in a real estate business (which I have rejected above).

The letter of demand sent by legal representatives of Mr Lui had the characteristics of a real estate agent’s letter.

The letter received by Mr Lui at the close of the expression of interest process was similar to a letter which would be forwarded to a real estate agent.

I reject those submissions because they misunderstand or misstate the nature of Mr Lui’s engagement on behalf of Ms Guan for the following reasons:

Mr Lui contracted with Ms Guan and not with any of the bidders, Anson City, A Capital or Shuangfu. This fact is significant, because Ms Guan had no power to sell, buy, exchange or otherwise dispose of the Kensington Project (see Challenger at [60]).

Ms Guan also had no power to give any inducements or enter into any negotiations with any of the purchasers in relation to the contract or the sale of the Kensington Project.

Mr Lui did not have any power or authority that went beyond that held by Ms Guan. Ms Guan did not have the power to affect what Shuangfu did after it was placed into administration or affect the conduct of the receiver.

The entire process and the sale, including the selection of any bidders and any negotiation with them, was in the sole discretion of A Capital.

I accept the submission of Mr Lui that many of the authorities dealing with these provisions may be distinguished because in those other matters the contractual relationship was between an “agent” and a party that could be a party to a “real estate transaction”.

Mr Lui was not concerned with, nor did he deal with, a process akin to an auction. It was a non-binding expression of interest. The judgment of Rein J in Lend Lease is closer to the factual circumstances of this matter. In that matter, it was found that the plaintiffs inclusion of the defendant in the former's bidding group for the purposes of engaging in an expression of interest process did not “readily fit within the notion of services that a real estate agent performs” (at [38]).

It is appropriate to have regard to the agreement itself given that the issue raised by the defendants is whether Mr Lui should be barred from recovering monies for a service he provided to Ms Guan (see Sims at [25]-[31]. The service in question here is only the service performed in accordance with the agreement for reward. Further, services performed beyond what was agreed, for which no monies were payable, do not trigger the prohibition in relation to services, the provision of which, without a license, is not prohibited.

The findings made above as to whether Mr Lui conducted the business of a real estate agent (which are further discussed below with respect to the second issue).

The Second Issue

It was submitted by the defendants that contrary to Ball J’s opinion in Ryde No 4, involvement as a real estate agent was not confined to a vendor or buyer. Alternatively, even on Mr Lui’s version, it was contended, his participation in finding a bidder constituted a “real estate agency service”. It was submitted that sub-sections (b) to (e) of the definition of “real estate agent” in the Act required an affirmative conclusion in this respect.
The difficulty with that submission is the evidence as to the lack of proximity between Mr Lui and the real estate transaction in which the vendor and ultimate purchaser were involved in.
Whilst I agree with Ball J in Ryde No 4 as to the purpose of the Act (see at [90]) and that the word agent should not be interpreted narrowly (at [91]), the definition of “real estate agent” in the Act should not be read too broadly: Lend Lease at [38]-[39]. I do not consider the agreement or Mr Lui’s conduct, as construed in this judgment, falls within that definition.
There was no evidence that either Ms Guan or Mr Lui was in any position to offer any inducement to anyone to enter either into the bidding process or the contract of sale. In Hawk, Bell J (as her Honour then was) described “inducement” by reference to the "real estate transaction" and analysed the relevant conduct by reference to whether it was an endeavour to persuade someone to "enter a contract for a real estate transaction" (at [49]). There was no such inducement in this case.
There is no evidence that Mr Lui sought to persuade any party to enter into a contract for a real estate transaction. He encouraged Fairway and Anson Company to engage in the expression of interest process and provided certain information.
Nor do I consider the evidence reveals that Mr Lui engaged in any negotiations. In Challenger, Young CJ in Eq stated, "the word [negotiation] usually means the arrangement of a sale and purchase, that is obtaining and finally settling all the terms and conditions and the price" (at [60]). Mr Lui was not involved in any task that answers those descriptions. The evidence was that he and Ms Guan were specifically excluded from any such negotiations. All that Mr Lui was required to do was to "find investment partners" and "assist” Ms Guan to "find appropriate investment developers". That clearly involved no negotiation.
The defendant contended that, in any event, Ms Guan was “involved” in the sale of “the Kensington land” or she was a director and shareholder of a company that was a registered proprietor and was a personal guarantor of that company’s debt to A Capital. She had a “keen interest in seeing the Kensington land sold for as much as possible”.
However, the bidding process was not a "real estate transaction". The "purchase, sale… or other disposal of the land” took place without reference to either Mr Lui or Ms Guan. Neither was involved in that process.
In Lend Lease, Rein J dealt with circumstances where the plaintiff, Lend Lease, had included the defendant in a bidding process as part of a consortium. Whilst his Honour was not faced with the present issues as such, namely, whether a bidding process satisfies the requirements of the term, "real estate transaction", his Honour rejected the argument based on s 9 of the Act on the basis that the "fee" was for "including Charter Hall in its bid for all of the assets owned by ING...". The circumstances of this case are even further removed from the circumstances of the case in Lend Lease. Here, Mr Lui's entitlement to the monies that he seeks was triggered by the success of the bidding process and not the sale of the Kensington Project.

Third Issue

I accept the submission of Mr Lui that there is no basis on present authority to extend the meaning of agent to include a person not partaking in a real estate transaction.
As Ball J said at [90] and [91] of Ryde No 4, the Act was enacted to protect the interests of consumers of "real estate agency services". On no view could Ms Guan be considered to be such a consumer. She was neither a vendor nor a purchaser. This factual matrix differs from factual matrices in the authorities cited by the defendants on this question. Unlike the parties in those cases, neither she nor Mr Lui was involved in the "real estate transaction".

THE PRIMARY MATTER: RELIEF – DAMAGES

It was common ground that the vehicle owned by Sun Link had been sold for $200,000. I consider, in the absence of a contrary submission that should be taken as the material value of the vehicle for the purposes of an order of damages. However, the Court will require further submissions as to the whether or not Ms Guan may be personally liable for such damages, with respect to the vehicle, in circumstances where Ms Guan did not have the authority to bind Sun Link and Sun Link was not found to be a party to the agreement.
Having regard to the aforementioned construction of the agreement the relevant consideration for the balance of the relief claimed by Mr Lui is “the tender rate”, which is to be calculated by reference to the final bid by Anson City. Two percent of the tender rate equals $780,000. That amount remains unpaid. It is appropriate that Ms Guan be ordered to pay Mr Lui that sum.

CONCLUSION: THE ISSUES

In the circumstances, the issues raised by the parties should be answered as follows:

Mr Lui and Ms Guan entered a contract on 18 January 2015 in terms which are set out in English language in Ex 1 in the primary proceeding. There was no oral contract.

This issue was superseded by the selling of the vehicle.

This issue shall be the subject of further submissions provided for in the directions below.

Yes (see under the heading “Relief: The Primary Matter – Damage”).

No.

THE SECOND MATTER

I return briefly to the second matter. As earlier mentioned, the contentions of Mr Leong, counsel for the Sun Link in the second matter (noting Ms Guan was not a party to the second matter), were brief and primarily served as supporting context to arguments in relation to the primary matter. Nonetheless, a brief summary of the parties’ submissions, in that respect, follows.
Counsel for Sun Link did not produce any written submissions with respect to the second matter, save for the following contention in the Defendants’ Opening Submissions in the primary matter: “Sun Link Group’s ownership of the vehicle has been maintained and asserted”.
On the first day of hearing, counsel for Sun Link contended that, notwithstanding the sale of the vehicle, an action in damages remains, as Sun Link “suffered loss of enjoyment”. However, as the second matter was pleaded on the basis of the vehicle being in Mr Lui’s possession, the Court allowed counsel for Sun Link to consider how it wished to proceed. That exchange was as follows:

HIS HONOUR: Yes. Well, look, at this stage, I propose to proceed on the basis that unless you do something to resurrect the, what I call “the second matter”, that I won’t treat it as being relevantly before me in the proceedings that are listed over these two days. That will put the onus on you, as it were, to initiate something in relation to it, firstly, by communicating with your opponent what the basis of it is, how you say it come into the proceedings now and then, what should be done with it. There’s no license, I should indicate, contained in anything that I’ve just said. It’s just a way of case managing what is in the proceedings now to simplify them in an economical way without this, as it were, lingering in a way that might affect it adversely in that respect.
LEONG: Is your Honour perhaps referring to a notice of motion of some sort?
HIS HONOUR: Not at this stage. I think it can be dealt with more simply. If it’s spent, as I suspect it is, then you can simply take the necessary steps to have it dealt with as if it is spent in the proceedings which I’ll let you contemplate, but the usual sort of steps in that respect, such as a discontinuance or something of that kind might be in order.
LEONG: What steps would your Honour require for us to re-agitate it, so to speak?
HIS HONOUR: Well, the starting point of that would be giving advice in writing to your opponent as to what you would propose to do and then raise it before the Court before I conclude the proceedings over these next two days. That might require some formal process beyond that, but at the moment, I’m simply indicating unless and until I hear something to the contrary, I’ll proceed on the basis that it is spent and that at some point or rather it will be discontinued or some other things done subject to costs.

Counsel for Sun Link did not seek to further develop submissions or re-agitate the issue. Counsel for Mr Lui submitted that nothing remained of the second matter and that it should be dismissed with costs. I accept that submission.

CONCLUSION

Mr Lui has established his claim for breach of contract against Ms Guan. Ms Guan failed to pay Mr Lui in accordance with cl 5 of the agreement. Mr Lui performed his obligations under the agreement as set out in this judgment. Accordingly, Mr Lui should obtain the relief in that respect.
It is true Ms Guan failed or refused to cause the registration of the vehicle to be transferred to Mr Lui in accordance with cl 4 of the agreement. However, there remains a question as to whether Mr Lui may properly be awarded damages with respect to that failure under prayer 4 for relief of the ASOC, having regard to the vehicle belonging to Sun Link. Accordingly, the Court will receive further submissions as to any personal liability of Ms Guan in that respect. If damages were ordered, they would be in the sum of $200,000.
The parties sought that the question of interest and cost be held over pending this judgment. It is appropriate that directions are made, in that respect, and are reflected below.
Submissions as to interest and costs may be affected by the Court’s final determination of damages with respect to prayer 4 for relief vis-à-vis damages with respect to the vehicle. However, that is a quite compact issue and, accordingly, the Court may receive submissions on that issue at the same time as receiving submissions or evidence on the question of interest and costs even if alternative formulations are provided by the parties.
The statement of claim brought by Sun Link is dismissed.

DIRECTIONS

The Court makes the following directions:

Mr Lui shall file and serve:

written submissions as to his claim for relief under prayer 4 of the amended statement of claim, with respect to the vehicle; and

written submissions or evidence as to the question of interest and costs;

on or before 4pm on Friday, 12 July 2019.

The defendants shall file and serve:

written submissions in reply as to any claim for relief by Mr Lui under prayer 4 of the amended statement of claim, with respect to the vehicle; and

written submissions or evidence in reply as to the question of interest and costs;

on or before 4pm on Friday, 26 July 2019.

In the event that either party seeks an oral hearing in relation to the question of interest and costs, an application to that effect should be made in the written submission filed in accordance with orders (1) and (2) above.

Decision last updated: 03 July 2019

Medium Neutral Citation:	Lui v Guan; Sun Link Group Pty Ltd v Lui [2019] NSWSC 803
Hearing dates:	27-28 June; 10-11 October and 6 December 2017; 12 March 2018; 4, 15 and 23 April 2018 (written submissions)
Date of orders:	28 June 2019
Decision date:	28 June 2019
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The Court makes the following directions: (1) Mr Lui shall file and serve: (a) written submissions as to his claim for relief under prayer 4 of the amended statement of claim, with respect to the vehicle; and (b) written submissions or evidence as to the question of interest and costs; on or before 4pm on Friday, 12 July 2019. (2) The defendants shall file and serve: (a) written submissions in reply as to any claim for relief by Mr Lui under prayer 4 of the amended statement of claim, with respect to the vehicle; and (b) written submissions or evidence in reply as to the question of interest and costs; on or before 4pm on Friday, 26 July 2019. (3) In the event that either party seeks an oral hearing in relation to the question of interest and costs, an application to that effect should be made in the written submission filed in accordance with orders (1) and (2) above.
Catchwords:	BREACH OF CONTRACT – written agreement – parties to agreement – construction of terms of agreement – principles of construction – objective surrounding circumstances – object and purpose of the agreement – whether obligations performed under the agreement – whether breach of agreement – claim for damages – payment of fee – damages regarding the vehicle – relief as to the vehicle and interest and costs subject to further directions CIVIL PROCEEDINGS – whether Property, Stock and Business Agents Act 2002 applied to proceedings – “carries on a business” – definition of “real estate agent” – “as an agent” – definition of “real estate transaction” – principles of statutory construction EVIDENCE – credibility findings – first defendant not a witness of truth and not reliable – whether Jones v Dunkel inferences available – witness failed to appear – admissibility of evidence – weight to be given to evidence
Legislation Cited:	Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Evidence Act 1995 (NSW) Property, Stock and Business Agents Act 2002 (NSW) Taxation Administration Act 1953 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Adamson v Ede [2009] NSWCA 379 Australia Casualty Co Ltd v Federico (1986) 160 CLR 513; [1986] HCA 32 Australian Broadcasting Commission v Australasian Performing Right Associated Ltd (1973) 129 CLR 99; [1973] HCA 36 B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 97011 Bank of Credit and Commerce International SA v Ali [2002] 1 AC 251 Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647; [1908] HCA 88 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Browne v Dunn (1893) 6 R 67 Burton v English (1883) 12 QBD 218 Caringbah Investments Pty Ltd v Caringbah Business and Sports Club Ltd (in liq) [2016] NSWCA 165 Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2008] NSWSC 801 Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2009] NSWCA 190 Chapmans Ltd v Australian Stock Exchange Ltd (1996) 67 FCR 402 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Colbron v St Bees Island (1995) 56 FCR 303 Con Ange v Calogo Bloodstock AG t/as Coolmore Australia [2012] NSWSC 666 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd (2013) 29 BCL 329; [2012] NSWCA 184 Cox Purtell Staffing Services Pty Ltd v Our Energy Group Pty Ltd [2017] NSWSC 1122 Darmanin v Cowan [2010] NSWSC 1118 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Eurico SpA v Philipp Brothers (the Epaphus) [1987] 2 Lloyd's Rep 215 Fabre v Arenales (1992) 27 NSWLR 437 FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343 Fairway Estates Pty Ltd v Federal Commissioner of Taxation (1970) 123 CLR 153; [1970] HCA 29 Farrell v Bannister (1952) 52 SR (NSW) 73 Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 97023 Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418; [1970] HCA 31 Greg Roughsedge Realty Pty Ltd v Whitecross [2001] QCA 426 Halford v Price (1960) 105 CLR 23; [1960] ALR 560 Hancock v Rinehart [2014] NSWSC 844 Hawk Australia Pty Ltd v George Ambrose Commercial Pty Ltd [2007] NSWSC 1150 Hide & Skin Trading v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68; [1907] HCA 38 J Kitchen & Sons Pty Ltd v Stewarts Cash & Carry Stores (1942) 66 CLR 116; [1942] ALR 229 Jenkins v Kedcorp Pty Ltd (2001) Q ConvR 54-547; [2002] 1 QD R 49 John R Keith Pty Limited v Multiplex Constructions (NSW) Pty Limited [2002] NSWSC 43 Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367 Kedcorp Pty Ltd v Jenkins (2001) Q ConvR 54-547; [1999] QCA 452 Lend Lease Real Estate Investments Ltd v Charter Hall Retail Management Ltd [2011] NSWSC 1624 Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70 Martinis v Raine & Horne Hornsby WPNLServ. P/L (Commercial) [2005] NSWCTTT 69 Mathas v Slater [2009] NSWSC 1397 Metropolitan Gas Co v Federated Gas Employees Industrial Union (1925) 35 CLR 449 Milne v Coxton (unreported, Supreme Court of NSW, Clarke J, 1985) BC8700884 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 Pao On v Lau Yiu Long [1980] AC 614 Porter v Oamps Ltd (2004) 207 ALR 635; [2004] FMCA 272 Qureshi v John Fairfax Publications Pty Ltd [2012] NSWSC 1605 Re Griffin; Ex parte The Board of Trade (1890) 60 LJQB 235 Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corp Pty Ltd (No 1) (1993) 178 CLR 379; [1993] HCA 40 RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 Rivat Pty Ltd v B and N Elomar Engineering Pty Ltd (2007) NSW ConvR 56-186; [2007] NSWSC 638 Rural Insurance (Aust) Pty Limited v Reinsurance Australia Corporation Limited (2002) 41 ACSR 30; [2002] NSWSC 156 Ryan v Textile Clothing & Footwear Union of Australia (1996) 130 FLR 313; [1996] 2 VR 235 Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2017] NSWCA 339 Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No 4) [2017] NSWSC 436 Samm Property Holdings Pty Ltd v Shaye Properties Pty Ltd (2017) 345 ALR 633; [2017] NSWCA 132 SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 Shevill v Builders Licensing Board (1982) 149 CLR 620; [1982] HCA 47 Simpson v Donnybrook Properties Pty Ltd [2010] NSWCA 229 Sims v Gawne [2005] NSWSC 750 Sultana Investments Pty Ltd v Cellcom Pty Ltd [2008] QCA 357 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Victoria v Tatts Group Ltd (2016) 328 ALR 564; [2016] HCA 5 Waterways Authority of New South Wales v Coal and Allied (Operations) Pty Limited (2008) Aust Contract R 90-278; [2007] NSWCA 276 Williams v ATM & CPA Projects Pty Limited [2015] NSWSC 703 WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd (2016) 341 ALR 467; [2016] NSWCA 297 Zhang v ROC Services (NSW) Pty Ltd (2016) 93 NSWLR 561; [2016] NSWCA 370
Texts Cited:	J D Heydon, Cross on Evidence (LexisNexis, 10th ed, 2015)
Category:	Principal judgment
Parties:	2015/160052 Kevin Yung Lui (Plaintiff) Xiuyan Guan (First Defendant) Sun Link Group Pty Ltd (Second Defendant) 2015/223106 Sun Link Group Pty Ltd (Plaintiff) Kevin Yung Lui (Defendant)
Representation:	2015/160052 Counsel: P Afshar (Plaintiff) I Leong (Defendants) Solicitors: Dunstan Legal (Plaintiff) Auyeung Hencent & Day (Defendants) 2015/223106 Counsel: I Leong (Plaintiff) P Afshar (Defendant) Solicitors: Auyeung Hencent & Day (Plaintiff) Dunstan Legal (Defendant)
File Number(s):	2015/160052; 2015/223106