Macquarie Bank Limited v Lin - [2005] QSC 221

SUPREME COURT OF QUEENSLAND

CITATION:

Macquarie Bank Limited v Lin [2005] QSC 221

PARTIES:

MACQUARIE BANK LIMITED ACN 008 583 542
(plaintiff)
v
KONRAD LIN
(defendant)
RAYMOND CHENG-YUNG WU
(first third party)
BRENDON AUSTRALIA INTERNATIONAL CORPORATION PTY LTD ACN 058 439 740
(second third party)
CHINESE INVESTMENT GROUP PTY LTD ACN 063 208 364 in its own right and as trustee for the RAYMOND WU FAMILY TRUST
(third third party)
PENELOPE JACKSON-KNAGGS
(fourth third party)
PETER ROSS CLAPIN and GERARD JOSEPH PAGLIARO
(fifth third parties)

FU-SHUN LIN and PAO-LAN CHANG LIN
(plaintiffs)
v
KONRAD LIN
(first defendant)
MACQUARIE BANK LIMITED ACN 008 583 542
(second defendant)

FILE NO/S:

S1035 of 2001
S7421 of 2001

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT: Brisbane

DELIVERED ON:

12 August 2005

DELIVERED AT:

Brisbane

HEARING DATES:

31 January 2005; 1, 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18 February 2005; 14, 15, 16, 17, 18, 21, 22, 23, 24 March 2005; 11, 12, 13, 14 April 2005

JUDGE:

McMurdo J

ORDER:

In S1035 of 2001:
1. There will be judgment for the plaintiff against the defendant for $9,436,857.70
2. The counterclaim by the defendant against the plaintiff is dismissed

3. The claim by the defendant against the fifth third parties, Peter Ross Clapin and Gerard Joseph Pagliaro, is dismissed

In S7421 of 2001:
1. It is declared that the first defendant holds upon trust for the plaintiffs the property described as:
(a) Lot 2 on RP 92983 in the County of Stanley, Parish of Bulimba, title reference 13287136
(b) Lot 4 on RP 12550 in the County of Stanley, Parish of Bulimba, title reference 11641206
(c) Lot 1 on RP 92982 in the County of Stanley, Parish of Bulimba, title reference 13287135

2. The plaintiffs are at liberty to apply, upon notice to the defendants, for any further or other relief in consequence of that declaration and consistently with the reasons for judgment

CATCHWORDS:

TRADE AND COMMERCE – TRADE PRACTICES AND RELATED MATTERS – CONSUMER PROTECTION – MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT – REPRESENTATIONS – IN GENERAL – where the family trustee company of which the defendant and his parents were directors became a shareholder in a development company and the defendant became a director of that company – where the development company entered into a fixed fee facility and guarantee agreement with the plaintiff bank for a loan for a development project – where the defendant, together with the other directors of the development company, provided an unlimited personal guarantee to the plaintiff bank – where the defendant provided to the bank a solicitor’s certificate of independent legal advice prior to providing the guarantee – where the obligations of the development company were not met under the agreement – where the plaintiff bank claimed its debt from the defendant – where the defendant claimed that he entered the agreement on the basis of misleading or deceptive representations made by the plaintiff bank as to the limit of his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] QSC 221
Decision Date: 12 August 2005

CaseChat Overview and Summary

Macquarie Bank Limited sued Lin for breach of contract and misrepresentation related to a development project. Lin claimed that he entered into an agreement with the bank based on misleading representations about the limit of his liability and the financial prospects of the project. The case raised several legal issues, including whether the bank's representations were misleading or deceptive, whether Lin understood his liability was unlimited, and if the bank was negligent in providing advice. The court also considered the terms of the contract, specifically whether the increased fixed fee and interest rate after the termination date constituted a penalty. Additionally, the case involved an examination of the relationship between Lin, his parents, and the ownership of a property used as security for the loan.

The court found that the bank's representations were not misleading or deceptive and that Lin understood his liability was unlimited. It was also determined that the bank was not negligent in providing advice. The court held that the increased fixed fee and interest rate were not a penalty but a legitimate variation of the original agreement. Regarding the property, the court found that Lin's parents had not provided the purchase monies, and the presumption of advancement was not rebutted. The court further held that Lin's parents were estopped from asserting their claim to the house against the bank because they were complicit in, permitted, or suffered Lin's representations that he was the beneficial owner of the house.

The court ordered that judgment be entered in favour of Macquarie Bank Limited against Lin for $9,436,857.70, dismissed Lin's counterclaim against the bank, and dismissed Lin's claim against the fifth third parties. The court also declared that Lin held the specified property on trust for the bank. The bank was granted liberty to apply for further or other relief in consequence of the declaration and consistently with the reasons for judgment.

Orders

Orders of the court

In S1035 of 2001:

1. There will be judgment for the plaintiff against the defendant for $9,436,857.70

2. The counterclaim by the defendant against the plaintiff is dismissed

3. The claim by the defendant against the fifth third parties, Peter Ross Clapin and Gerard Joseph Pagliaro, is dismissed

In S7421 of 2001:

1. It is declared that the first defendant holds upon trust for the plaintiffs the property described as:

(a) Lot 2 on RP 92983 in the County of Stanley, Parish of Bulimba, title reference 13287136

(b) Lot 4 on RP 12550 in the County of Stanley, Parish of Bulimba, title reference 11641206

2. The plaintiffs are at liberty to apply, upon notice to the defendants, for any further or other relief in consequence of that declaration and consistently with the reasons for judgment

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Macquarie Bank Limited v Lin [2005] QSC 221
PARTIES:	MACQUARIE BANK LIMITED ACN 008 583 542 (plaintiff) v KONRAD LIN (defendant) RAYMOND CHENG-YUNG WU (first third party) BRENDON AUSTRALIA INTERNATIONAL CORPORATION PTY LTD ACN 058 439 740 (second third party) CHINESE INVESTMENT GROUP PTY LTD ACN 063 208 364 in its own right and as trustee for the RAYMOND WU FAMILY TRUST (third third party) PENELOPE JACKSON-KNAGGS (fourth third party) PETER ROSS CLAPIN and GERARD JOSEPH PAGLIARO (fifth third parties) FU-SHUN LIN and PAO-LAN CHANG LIN (plaintiffs) v KONRAD LIN (first defendant) MACQUARIE BANK LIMITED ACN 008 583 542 (second defendant)
FILE NO/S:	S1035 of 2001 S7421 of 2001
DIVISION:	Trial Division
PROCEEDING:	Hearing
ORIGINATING COURT:	Brisbane
DELIVERED ON:	12 August 2005
DELIVERED AT:	Brisbane
HEARING DATES:	31 January 2005; 1, 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18 February 2005; 14, 15, 16, 17, 18, 21, 22, 23, 24 March 2005; 11, 12, 13, 14 April 2005
JUDGE:	McMurdo J
ORDER:	In S1035 of 2001: 1. There will be judgment for the plaintiff against the defendant for $9,436,857.70 2. The counterclaim by the defendant against the plaintiff is dismissed 3. The claim by the defendant against the fifth third parties, Peter Ross Clapin and Gerard Joseph Pagliaro, is dismissed In S7421 of 2001: 1. It is declared that the first defendant holds upon trust for the plaintiffs the property described as: (a) Lot 2 on RP 92983 in the County of Stanley, Parish of Bulimba, title reference 13287136 (b) Lot 4 on RP 12550 in the County of Stanley, Parish of Bulimba, title reference 11641206 (c) Lot 1 on RP 92982 in the County of Stanley, Parish of Bulimba, title reference 13287135 2. The plaintiffs are at liberty to apply, upon notice to the defendants, for any further or other relief in consequence of that declaration and consistently with the reasons for judgment
CATCHWORDS:	TRADE AND COMMERCE – TRADE PRACTICES AND RELATED MATTERS – CONSUMER PROTECTION – MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT – REPRESENTATIONS – IN GENERAL – where the family trustee company of which the defendant and his parents were directors became a shareholder in a development company and the defendant became a director of that company – where the development company entered into a fixed fee facility and guarantee agreement with the plaintiff bank for a loan for a development project – where the defendant, together with the other directors of the development company, provided an unlimited personal guarantee to the plaintiff bank – where the defendant provided to the bank a solicitor’s certificate of independent legal advice prior to providing the guarantee – where the obligations of the development company were not met under the agreement – where the plaintiff bank claimed its debt from the defendant – where the defendant claimed that he entered the agreement on the basis of misleading or deceptive representations made by the plaintiff bank as to the limit of his…