Sui v Jiang (No 2) - [2025] NSWCA 86

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sui v Jiang (No 2) [2025] NSWCA 86
Hearing dates: 28 March 2025
Date of orders: 2 May 2025
Decision date: 02 May 2025
Before: Payne JA at [1];
Stern JA at [2];
McHugh JA at [3].
Decision:
The appeal be dismissed with costs.

Catchwords:
CONTRACTS — Construction — Whether contract imposed an obligation to elect between mutually exclusive scenarios — Whether valid election could be made after contract terminated
CONTRACTS — Construction — Requirement of clear and unequivocal communication or conduct to exercise rights — Where no relevant communication or conduct within relevant period

Cases Cited:
Allianz Australia Insurance Limited v Delor Vue Apartments (2022) 277 CLR 445; [2022] HCA 38
Ballas v Theophilos [No 2] [1957] HCA 90; (1957) 98 CLR 193
Elder’s Trustee and Executor Co Ltd v Commonwealth Homes and Investment Co Ltd [1941] HCA 31; (1941) 65 CLR 603
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340
Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust(NSW) [1993] HCA 27; (1993) 182 CLR 26
McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457
Quadling v Robinson [1976] HCA 31; (1976) 137 CLR 192
Sargent v A.S.L. Developments Ltd [1974] HCA 40; (1974) 131 CLR 634
Sui v Jiang [2021] NSWCA 285
Westralian Farmers Ltd v Commonwealth Agricultural Service Engineers Ltd [1936] HCA 6; (1936); 54 CLR 361

Category: Principal judgment
Parties: Guangyi Sui (Appellant)
Zhaoqing Jiang (Respondent)
Representation:
Counsel:
M Young SC (Appellant)
SA Lawrance SC; BJS Smith (Respondent)
Solicitors:
Dixon Holmes Lawyers (Appellant)
Sunfield Chambers Solicitors & Associates (Respondent)

File Number(s): 2024/00399278
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity — Commercial List

Citation:

Sui v Jiang [2024] NSWSC 1013

Date of Decision:

14 August 2024

Before:

Stevenson J

File Number(s):

2023/167408

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 26 May 2017, Mr Guangyi Sui and Mr Zhaoquing Jiang entered into a written agreement (the Agreement) which regulated the terms on which Mr Sui would invest in a company (the Company) that was to hold Crown Leases in undeveloped land in the Northern Territory. The Agreement was mostly written in Mandarin. Pursuant to cll 2 and 3 of the Agreement, Mr Jiang agreed to transfer to Mr Sui 40% of the shares in the Company and Mr Sui agreed to pay $1.5 million into the Company’s bank account. Those steps occurred in June 2017.

Clause 4 provided that from the commencement of the fourth year after Mr Sui made his investment (i.e., from 15 June 2020), Mr Sui could choose between three different scenarios. In Scenario 3, Mr Sui would “leave the company” by selling his shares “at the then market price”, in which case Mr Jiang promised to “make up the…

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.

Continue reading Sui v Jiang (No 2)

Details

AGLC: Sui v Jiang (No 2) [2025] NSWCA 86
Case: [2025] NSWCA 86
Decision Date: 02 May 2025

CaseChat Overview and Summary

The Full Court of the Supreme Court of Victoria, comprising Payne, Stern and McHugh JJA, considered an appeal concerning the construction of a contract and the validity of an election made after its termination. The dispute arose from an agreement where the parties had apparently entered into mutually exclusive scenarios, and the central question was whether the contract imposed an obligation to elect between these scenarios and, if so, whether a valid election could be made after the contract had ended.

The court was required to determine two primary legal issues. Firstly, whether the contract, on its proper construction, imposed a positive obligation on one of the parties to elect between two mutually exclusive scenarios contemplated by the agreement. Secondly, if such an obligation existed, the court had to consider whether a valid election could be made after the contract had been terminated. This involved an examination of the principles governing the exercise of contractual rights and the requirements for clear and unequivocal communication or conduct in such circumstances, particularly when no relevant communication or conduct occurred within the period stipulated or implied by the contract.

The court reasoned that for a party to be obliged to elect between mutually exclusive scenarios, the contract must clearly and unequivocally impose such a duty. In this instance, the court found that the contract did not contain such a provision. Furthermore, the court held that an election, to be valid, must be made during the currency of the contract, unless the contract expressly or by necessary implication permits an election after termination. As no valid election had been made during the contract's subsistence, and the contract did not permit a post-termination election, the purported election was ineffective.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

The appeal be dismissed with costs.

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.

Medium Neutral Citation:	Sui v Jiang (No 2) [2025] NSWCA 86
Hearing dates:	28 March 2025
Date of orders:	2 May 2025
Decision date:	02 May 2025
Before:	Payne JA at [1]; Stern JA at [2]; McHugh JA at [3].
Decision:	The appeal be dismissed with costs.
Catchwords:	CONTRACTS — Construction — Whether contract imposed an obligation to elect between mutually exclusive scenarios — Whether valid election could be made after contract terminated CONTRACTS — Construction — Requirement of clear and unequivocal communication or conduct to exercise rights — Where no relevant communication or conduct within relevant period
Cases Cited:	Allianz Australia Insurance Limited v Delor Vue Apartments (2022) 277 CLR 445; [2022] HCA 38 Ballas v Theophilos [No 2] [1957] HCA 90; (1957) 98 CLR 193 Elder’s Trustee and Executor Co Ltd v Commonwealth Homes and Investment Co Ltd [1941] HCA 31; (1941) 65 CLR 603 FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust(NSW) [1993] HCA 27; (1993) 182 CLR 26 McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457 Quadling v Robinson [1976] HCA 31; (1976) 137 CLR 192 Sargent v A.S.L. Developments Ltd [1974] HCA 40; (1974) 131 CLR 634 Sui v Jiang [2021] NSWCA 285 Westralian Farmers Ltd v Commonwealth Agricultural Service Engineers Ltd [1936] HCA 6; (1936); 54 CLR 361
Category:	Principal judgment
Parties:	Guangyi Sui (Appellant) Zhaoqing Jiang (Respondent)
Representation:	Counsel: M Young SC (Appellant) SA Lawrance SC; BJS Smith (Respondent) Solicitors: Dixon Holmes Lawyers (Appellant) Sunfield Chambers Solicitors & Associates (Respondent)
File Number(s):	2024/00399278
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity — Commercial List Citation: Sui v Jiang [2024] NSWSC 1013 Date of Decision: 14 August 2024 Before: Stevenson J File Number(s): 2023/167408