Solicitors: Longton Legal (Plaintiff) EXC Law (Defendant)
File Number(s):
2023/154908
Publication restriction:
Nil
JUDGMENT
Introduction
The plaintiff, Mr Shichao Niu, seeks the repayment of a debt that he alleges is owed to him by the defendant, Mr Yixin Lu, pursuant to an oral loan agreement entered into between the plaintiff and the defendant in mid-May 2017. Alternatively, Mr Niu alleges that Mr Yu has received a benefit or been enriched at his expense and seeks an accounting from the defendant or restitution.
The plaintiff alleges that the terms of the loan agreement provided for him to lend the sum of $260,000 to the defendant for a term of twelve months, commencing on the date that the full amount is advanced, at an interest rate of 10% per annum.
The plaintiff alleges that he advanced the money, as agreed, in two tranches, the first of $160,000 on 16 May 2017 and the second of $100,000 on 30 May 2017.
The plaintiff alleges that the defendant has failed to repay any of the money advanced to him under the loan agreement.
The defendant denies that he entered into a loan agreement with the plaintiff in May 2017 or at all. The defendant denies that he received the advance of any money from the plaintiff, and he denies that he has received any benefit at the expense of the plaintiff, or that he has been enriched at the expense of the plaintiff.
The trial of the matter proceeded for three days. The plaintiff, Mr Honggaun Li and Mr John Ganas, a handwriting expert, gave evidence in the plaintiff’s case. The defendant and Mr Clifford Hobden, a handwriting expert, gave evidence in the defendant’s case. Mr Niu, Mr Li and Mr Lu all gave evidence in Standard Chinese (Mandarin) which was interpreted by an accredited interpreter.
Mr Niu provided two affidavits, dated 13 February 2024 (‘Niu’s first affidavit’) and 3 May 2024 (‘Niu’s second affidavit’). Mr Niu is sometimes referred to as “Sam”. Mr Li provided three affidavits, dated 3 May 2024 (‘Li’s first affidavit’), 27 September 2024 (‘Li’s second affidavit’) and 30…
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
AGLC
Niu v Lu [2025] NSWDC 103
Case
[2025] NSWDC 103
Decision Date
CaseChat Overview and Summary
The case of Niu v Lu involved a dispute between the plaintiff, Niu, and the defendant, Lu, regarding the existence of a binding oral agreement for a loan and a claim for restitution. The matter was heard in the Supreme Court of Victoria. Niu alleged that Lu had orally agreed to lend him money, and that he was entitled to restitution for funds provided. Lu denied the existence of any such agreement and the court was required to determine whether a binding oral lending agreement had been established and if Niu was entitled to restitution. The court also needed to assess the admissibility and authenticity of a document presented by Niu as evidence.
In its judgment, the court found that there was insufficient evidence to establish the existence of a binding oral agreement for a loan. The court noted that oral agreements can be difficult to prove and that there was no documentary evidence to support Niu's claims. The court also held that the document presented by Niu was not authentic and could not be relied upon as evidence. As a result, the court dismissed Niu's claims for both the establishment of a binding oral agreement and for restitution. The court held that Niu had failed to discharge the burden of proof to establish his claims on the balance of probabilities. The court found that Lu had not received any funds from Niu and that there was no evidence of an agreement to lend money. The court held that Niu had not established his claims and that the defendant was not liable to him. Consequently, the plaintiff's claims were dismissed.