Wan v Ji

[2022] NSWDC 269

District Court

New South Wales

Medium Neutral Citation:

Wan v Ji [2022] NSWDC 269

Hearing dates:

23 and 24 June 2022

Date of orders:

18 July 2022

Decision date:

18 July 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [72] for orders

Catchwords:

TORTS – action variously framed in the alternative, alleging deceit; misleading and deceptive conduct; and monies had and received – whether provisions of Australian Consumer Law are engaged; CONTRACT – enforceability of alleged guarantee of capital losses in an investment scheme

Legislation Cited:

Australian Consumer Law

Cases Cited:

Derry v Peek (1889) 14 App Cos 337; [1889] UKHL 1

In the matter of Caernarvon Canobolas Pty Ltd (In Liq) [2022] NSWSC 382

Lumbers v W Cook Builders Pty Ltd (In Liq) (2008) 232 CLR635, [2008] ChR 27

Pavey & Matthews Pty Ltd v Paul [1987] 162 CLR 221

Williams v Pisano (2015) 90 NSWLR 342; [2015] NSWCA 177

Category:

Principal judgment

Parties:

Chi Jian Wan (Plaintiff)
Hong Lan Ji (aka Honglan Ki, Margrete Ji, Marger, Margery Ji) (Defendant)

Representation:

Counsel:
Mr M Langenheim (Plaintiff)
Mr K Tang / Mr M Morgan (Pro Bono representation) (Defendant)

Solicitors:
Di Lizio & Associates (Plaintiff)
LLL The Law Firm (Pro Bono representation) (Defendant)

File Number(s):

2020/184306

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1] – [2]
Falconaire scheme	[3] – [5]
Claim	[6] – [9]
Defences	[10] – [13]
Evidence overview	[14]
The plaintiff	[15] – [18]
The defendant	[19] – [20]
The connection between the parties	[21]
Plaintiff’s submissions	[22] – [24]
Defendant’s submissions	[25] – [27]
Credit findings	[28] – [32]
Issues	[33] – [34]
Issue 1 – Agency	[35] – [36]
Issue 2 – Whether the Australian Consumer Law applies	[37] – [43]
Issue 3 – Whether misleading and deceptive conduct established	[44] – [47]
Issue 4 – Claim of money had and received	[48] – [56]
Issue 5 – Enforceability of the claimed guarantee	[57] – [64]
Issue 6 – Quantification of damages	[65] – [68]
Interest	[69]
Disposition	[70]
Costs	[71]
Orders	[72]

Nature of case

1. These proceedings arise out of a speculative investment that went awry. The plaintiff, Mr Chi Jian Wan, and the defendant, Ms Hong Lan Ji, also known as Margery Honglan Ji, are the naïve victims of a sophisticated scam which has been euphemistically described as a high-risk investment in the nature of a Pyramid or Ponzi scheme, which allegedly involved petroleum and oil, energy futures, and notional coins, promoted by an overseas company known as Falconaire (“the Falconaire Scheme”).

2. That company, which no longer exists, had offices in Shenzhen in China, in Dubai in the United Arab Emirates, and in Sydney. The undisputed facts in these proceedings reveal that as a result of their respective investments in Falconaire, both parties have unfortunately suffered significant monetary losses that each could ill-afford. In these proceedings, the plaintiff seeks to recover his losses from the defendant.

The Falconaire Scheme

3. Persons who invested significant funds in the…