Ming Ying v Lida Song

[2012] NSWCA 362

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ming Ying v Lida Song [2012] NSWCA 362

Hearing dates:

4 September 2012

Decision date:

12 November 2012

Before:

Allsop P at [1]
Macfarlan JA at [2]
Tobias AJA at [25]

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - equity - claim that shares held on constructive trust - challenge to primary judge's credit findings failed - no issue of principle

Legislation Cited:

Evidence Act 1995
Oaths Act 1900

Cases Cited:

Fox v Percy [2003] HCA 22; 214 CLR 118
House v R [1936] HCA 40; 55 CLR 499
Libke v R [2007] HCA 30; 230 CLR 559

Category:

Principal judgment

Parties:

Ming Ying (Appellant)
Lida Song (First Respondent)
Budget Scaffold Supplies Ltd (Second Respondent)

Representation:

Counsel:
Appellant in person
M Lawson/D Eardley (Respondents)
Solicitors:
William Chan & Co Lawyers (Appellant)
Colin Biggers & Paisley (Respondents)

File Number(s):

CA 2006/257653

 Decision under appeal 

Citation:

Ming Ying v Lida Song [2010] NSWSC 1500

Date of Decision:

2010-12-22 00:00:00

Before:

Ward J

File Number(s):

SC 2006/257653

Judgment

1. ALLSOP P: I agree with Macfarlan JA.

1. MACFARLAN JA: By his Amended Summons filed in the Equity Division, the appellant, Ming Ying, sought declarations and orders against the first respondent, Lida Song (his former brother-in-law) and the second respondent, Budget Scaffold Supplies Pty Ltd ("BSS") (of which Lida Song was a director and shareholder). Ming Ying claimed that in 2002 he paid $106,025 to BSS to acquire 25 BSS shares which Lida Song transferred to Ming Ying, but subsequently re-transferred to himself in 2005 without Ming Ying's consent. In rejecting Ming Ying's case, Ward J found that Lida Song did not hold the 25 re-transferred shares on trust for Ming Ying and that BSS did not owe any money to Ming Ying by way of an obligation to repay the amount of $106,025 or otherwise (Ying v Song [2010] NSWSC 1500 at [85]).

1. Her Honour's resolution of the proceedings turned largely on her assessment of the credibility of the parties and her consequent preference for the evidence of Lida Song over that of Ming Ying. Ming Ying appealed against her Honour's judgment on the grounds referred to below. His written submissions on appeal were signed by counsel but he was unrepresented at the appeal hearing. I shall deal with the grounds of appeal seriatim.

GROUND ONE: HER HONOUR ERRED IN HER APPLICATION OF SECTION 27A OATHS ACT BY RULING THAT THE AFFIDAVITS OF THE PLAINTIFF WERE INADMISSIBLE

1. At the time of the hearings before Ward J in 2009, Ming Ying…