Pacific Shoji Pty Ltd v Xia

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Pacific Shoji Pty Ltd v Xia [2018] NSWCA 290

Hearing dates:

27 June 2018

Decision date:

28 November 2018

Before:

McColl JA at [1];
Leeming JA at [2];
Sackville AJA at [123]

Decision:

1. Appeal allowed in part.

 

2. Set aside the judgment in favour of Ms Xia on her claim in the amount of $268,739.14 plus interest in the amount of $52,926.17 dated 31 August 2017, and in lieu thereof, enter judgment in favour of Ms Xia in the amount of $210,767.73 plus interest, with effect from 31 August 2017.

 

3. Direct the parties to file and serve, within 7 days, an agreed calculation of interest, or their separate calculations of interest, for the purposes of order 2 above.

 4. Pacific Shoji to pay 60% of Ms Xia’s costs of the appeal.

Catchwords:

CONTRACT – damages for repayment of loan – whether primary judge erred in finding that money paid by plaintiff to defendant was by way of loan – held primary judge erred in finding money was lent to defendant

 

CONTRACT – damages for failure to pay commission – primary judge found informal agreement for payment of 10% commission if plaintiff could find buyer for defendant's factory – whether sufficient evidence to sustain findings – whether commission payable in circumstances where sale not achieved until employee’s contract terminated – whether appellant permitted to run different case on appeal – appellant precluded from running new case on appeal

  EMPLOYMENT – contract of employment – whether employee sold goods on credit to other customers – employee concealed fact from employer – whether breach of contract – whether employer entitled to damages for unpaid price of those goods – held breach established, but employer failed to establish breach had caused any loss

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56
District Court Act 1973 (NSW), s 127
Justice Legislation Amendment Act (No 3) 2018 (NSW), Schedule 1

Cases Cited:

Australian Wholesale Meats (Sydney) v S&R Cool Logistics Pty Ltd [2018] NSWSC 1541
Concut Pty Ltd v Worrell [2000] HCA 64; 75 ALJR 312
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219
Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351; [2001] HCA 2
Xia v Pacific Shoji Pty Ltd [2017] NSWDC 161

Category:

Principal judgment

Parties:

Pacific Shoji Pty Ltd (Appellant)
Helen Rong Xia (Respondent)

Representation:

Counsel:
D A Lloyd (Appellant)
Steven Sher (Solicitor) (Respondent)

  Solicitors:
Macedone Legal Solicitors (Appellant)
Drayton Sher Lawyers (Respondent)

File Number(s):

2017/228840

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Civil

Citation:

[2017] NSWDC 161

Date of Decision:

30 June 2017

Before:

Gibson DCJ

File Number(s):

2014/183557

Judgment

1. McCOLL JA: I agree with Leeming JA’s reasons and the orders his Honour proposes.

2. LEEMING JA: Pacific Shoji Pty Ltd appeals from…