JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: SIAH -v- WONG [2021] WASC 19
CORAM: SMITH J
HEARD: 15 ‑ 16, 18 ‑ 19, 22 ‑ 23, 25 JUNE, 1 JULY 2020
DELIVERED : 29 JANUARY 2021
FILE NO/S: CIV 1739 of 2018
BETWEEN: TECK HIN SIAH
Plaintiff
AND
LEON WONG
First Defendant
FIRSTLAND INVESTMENTS PTY LTD
Second Defendant
FIRSTLAND PTY LTD
Third Defendant
FIRSTLAND UNLIMITED PTY LTD
Fourth Defendant
Catchwords:
Corporations law - Section 232 and s 233 Corporations Act 2001 (Cth) - Plaintiff brings oppression proceedings as minority shareholder seeking majority shareholders buy out his shares of fourth defendant - Fourth defendant quasi‑partnership between plaintiff and first defendant - Oppression found - Dilution of shareholding of plaintiff unlawful - Invalid appointment of additional directors - Other general acts of oppression found - Turns on own facts - Buy out of plaintiff's shares ordered
Contract - Plaintiff's claim for project management fees - Tort - First defendant and fourth defendant claim plaintiff breached duties of care owed to fourth defendant pursuant to s 180(1) Corporations Act, alternatively at common law or as an independent contractor - Breach of duty found in respect of three items of work only which in the scheme of works found to be minor breaches of duty
Misleading conduct - Section 18 Australian Consumer Law - Claim that plaintiff did not have reasonable grounds for representing that he had relevant skills and experience - Claim fails - Turns on own facts
Set off - Fourth defendant claims set off, of loss and damage incurred in rectifying defective work - Legal set off - Analogous set off - Classical equitable set off - Principles considered - Nature of claims maxim - He who seeks equity must do equity applied - Set off claim fails
Expert evidence - Admissibility - Relevant principles considered
Legislation:
Australian Consumer Law, s 4(2), s 18
Building Services (Registration) Act 2011 (WA), s 18
Competition and Consumer Act 2010 (Cth), sch 2
Corporations Act 2001 (Cth), s 180, s 232, s 233, s 1322
Fair Trading Act 2010 (WA)
Result:
Plaintiff's oppression claim made out
Declaration made that appointment of directors invalid
Declaration made that a resolution purporting to increase the share capital of the fourth defendant invalid
Order made that fourth defendant pay the plaintiff project management fees
Order that the second defendant and third defendant purchase the plaintiff's shares in the fourth defendant
Order for an account and appointment of expert to investigate the accounts for the purpose of valuing the shares in the fourth defendant
Counterclaims dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr A P Hershowitz |
| First Defendant | : | Mr N D C Dillon |
| Second Defendant | : | Mr N D C Dillon |
| Third Defendant | : | Mr N D C Dillon |
| Fourth Defendant | : | Mr N D C Dillon |
Solicitors:
| Plaintiff | : | Robertson Hayles Lawyers |
| First Defendant | : | Susanna Ho Legal Services |
| Second Defendant | : | Susanna Ho Legal Services |
| Third Defendant | : | Susanna Ho Legal… |
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- AGLC
- Siah v Wong [2021] WASC 19
- Case
- [2021] WASC 19
- Decision Date
CaseChat Overview and Summary
The court examined whether the debts between Mr Siah and Wong were mutual, meaning they had to be between the same parties and in the same right. The debts had to be liquidated, which means they had to be fixed and determinable, or at least ascertainable without difficulty. The court referred to precedents such as Hazcor Pty Ltd v Kirwanon Pty Ltd and Victorian Workcover Authority v Esso Australia Ltd to ascertain the nature of liquidated debts. Moreover, the court referenced Meagher, Gummow & Lehane's Equity: Doctrines & Remedies to clarify that actions in tort and claims for unliquidated damages do not qualify as liquidated debts.
The Supreme Court concluded that although there appeared to be mutuality between the claims, the debts in question were not liquidated sums. This was because they did not meet the criteria of being fixed and determinable or easily ascertainable, as required by the case law. The court thus held that Mr Siah could not legally set off these debts against Wong. The decision hinged on the distinction between liquidated and unliquidated debts, with the latter not being eligible for set-off.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In PN Corporation Pty Ltd v Oxford Uniforms Pty Ltd, Principal Registrar Gething summarised the principles on the availability of legal set off:[478](a)a defendant may set off a mutual debt owed to it by the plaintiff: Hazcor [Pty Ltd v Kirwanon Pty Ltd (1995) 12 WAR 62], 64, 67, 69;(b)only liquidated sums can be a set‑off against each other: McDonnell & East Ltd v McGregor [[1936] HCA 28; (1936) 56 CLR 50], 62;(c)the debt sought to be set‑off must be an actionable debt, one capable of being pursued in a separate proceeding: Rawley v Rawley (1876) 1 QBD 460, 463 ‑ 465;…(e)the debts need not arise at the same time: Day & Dent Constructions Pty Ltd (in liq) v North Australian Properties Pty Ltd (1982) 40 ALR 399; and(f)the debts need not arise out of the same transaction: Re Daintrey [1900] 1 QB 546, 573 - 574.[478] PN Corporation Pty Ltd v Oxford Uniforms Pty Ltd [2012] WADC 149; (2012) 81 SR (WA) 347 [88]. Further, only common law claims can be the subject of legal set off. To be mutual, the debts must be between the same parties and be held in the same right.[479] There appears to be mutuality between Mr Siah's claim against the Company and the Company's claim against Mr Siah. [479] Hazcor Pty Ltd v Kirwanon Pty Ltd (1995) 12 WAR 62, 67. However, the debts sought to be set off do not appear to be for liquidated sums. In Victorian Workcover Authorityv Esso Australia Ltd,[480] Gleeson CJ, Gummow, Hayne and Callinan JJ said:[481]This requirement of [mutual] 'debts' [in the Statutes of Set-off] did not refer merely to a claim that could have been the subject of the old action of debt. Rather, in Stooke v Taylor, Cockburn CJ said that the plea under the statutes was 'available only where the claims on both sides [were] in respect of liquidated debts, or money demands which can be readily and without difficulty ascertained'. More recently, in Stein v Blake, Lord Hoffman said that this statutory or legal set-off 'is confined to debts which at the time when the defence of set-off is filed were due and payable and either liquidated or in sums capable of ascertainment without valuation or estimation'. The test formulated by Cockburn CJ encompasses the old indebitatus accounts, including claims in quantum meruit and quantum valebat where goods had been sold or services were performed without the agreement of a price and the claims were disputed on grounds which could easily be resolved in the litigation.[480] Victorian Workcover Authorityv Esso Australia Ltd [2001] HCA 53; (2001) 207 CLR 520.[481] Victorian Workcover Authorityv Esso Australia Ltd [2001] HCA 53; (2001) 207 CLR 520 [30]. (footnotes omitted) However, according to Meagher, Gummow & Lehane's Equity: Doctrines & Remedies, actions in tort and claims for unliquidated damages based on contract are not claims for liquidated debts.[482] [482] See Heydon JD, Leeming MJ and Turner PG, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2015) [39.060(b)], in particular, the commentary and cases at footnotes 70 and 71.