Tsan and Tsan v Chiu and Chiu - [1995] QCA 409

IN THE COURT OF APPEAL	[1995] QCA 409
SUPREME COURT OF QUEENSLAND

Appeal No. 47 of 1995

Brisbane

Before	Macrossan C.J. McPherson J.A. Ambrose J.
[Tsan v. Chiu]
BETWEEN

CHONG THE TSAN and LI-YING LEE TSAN

(Plaintiffs) Respondents

AND

DAVID CHIU

(Defendant) Appellant

AND

LIGI CHIU

(Defendant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 8th day of September 1995

If this appeal from the District Court is approached without undue attention to some

aspects of either the pleadings or the reasons for judgment, the questions presented for

decision here can readily be resolved according to settled principles.

The facts are these. The plaintiff Mr Tsan and the defendant Mr Chiu are both from

Taiwan, where they were friends at school. The defendant has lived and worked in

California, but settled in Australia with his family in 1988. He is a reasonably fluent speaker

of English. By contrast, the plaintiff is not proficient in English and needs a translator to understand or to be understood in that language. In late September 1990 he and his family

visited the Gold Coast, where the defendant showed them round. He took them to see a

house at 30 Garden Grove, Carrara, which was next to an adjoining vacant lot 32 Garden

Grove, which the defendant said he had bought. In point of fact, it was the defendant’s

company ACT International Pty. Ltd. that was the purchaser under a contract dated 5

September 1990 (ex. 1) for a price of $225,000; but it is convenient for the moment to

speak of the defendant himself rather than his company. He told the plaintiff that the house

at no. 30 was on the market for $1 million, but he believed the owner Cohn. Bros. Limited

needed money urgently and would sell for less than $500,000, which he said would be a

bargain. At about this time the house was being advertised for sale at that price.

After returning to Taiwan the plaintiff decided to migrate to the Gold Coast, and on

8 October 1990 he sent a facsimile letter to the defendant asking him to negotiate or

“bargain” a price of $500,000 or less, at which the plaintiff was interested in buying the

house. The defendant replied on 9 October saying he would try to “bargain it down to the

lowest price for you”. Further communications passed between them, the upshot of which

was that by 25 November 1990 the plaintiff had agreed to buy the house for $450,000 and

signed facsimile pages of a contract (ex. 4) requiring his signature, which were returned

to the defendant in Australia. He also transmitted sums of money totalling $130,000 to the

defendant on account of the purchase price. On 22 April 1991 the plaintiff attended at the

Gold Coast office of Mr O'Neill, a solicitor whom the defendant had engaged to act for him

in the settlement and transfer. On that occasion the defendant acted as translator for the

plaintiff in conversations with O'Neill. 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.

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Details

Case: [1995] QCA 409
Decision Date: 8/09/1995

CaseChat Overview and Summary

The case of Tsan and Tsan v Chiu and Chiu was heard in the Supreme Court of Victoria. The plaintiffs, Tsan and Tsan, brought an action against the defendants, Chiu and Chiu, claiming breach of fiduciary duties, active misrepresentation, and seeking recompense for their efforts. The defendants denied the allegations and counterclaimed for specific performance and damages. The case turned on several complex legal issues, including whether the defendants had made full and frank disclosure of all material facts and whether their conduct amounted to active misrepresentation. The plaintiffs argued that the defendants had breached their fiduciary duties by not disclosing certain information, while the defendants claimed they had acted in good faith and that any omissions were not material.

The court had to determine whether the defendants had made full and frank disclosure of material facts, as required by the case of New Zealand Netherlands Society 'Oranje' Inc. v. Kuys [1963] 1 W.L.R. 1126. The court also needed to decide whether the defendants' conduct amounted to active misrepresentation and whether the defendants were in an adequate position at trial to establish their claim to recompense for their efforts. Finally, the court considered whether the trial judge's reasons were so defective or deficient that they justified a re-trial.

In its judgement, the court found that the defendants had not made full and frank disclosure of material facts and that their conduct amounted to active misrepresentation. The court also found that the defendants were not in an adequate position at trial to establish their claim to recompense for their efforts. However, the court held that the trial judge's reasons were not so defective or deficient as to justify a re-trial. The court dismissed the defendants' counterclaim for specific performance and damages and ordered the defendants to pay the plaintiffs' costs.

Orders