SUPREME COURT OF QUEENSLAND
CITATION: Wang v Hur [2024] QCA 126 PARTIES: YUN WANG (appellant) v
LAN LAN HUR(first respondent) QIONG WU (second respondent) LOYAL EDUCATION PTY LTD ACN 621 786 472 (third respondent)
FILE NO/S: Appeal No 10224 of 2022
DC No 3841 of 2018DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING District Court at Brisbane – [2022] QDC 162 COURT: (Rosengren DCJ) DELIVERED ON: 25 June 2024 DELIVERED AT: Brisbane HEARING DATE: 24 February 2023 JUDGES: Morrison and Bond JJA and Davis J ORDERS:
1. The appellant’s and the respondents’ applications for leave to adduce further evidence are refused.
2. The appeal is dismissed.
3. The appellant must pay the respondents’ costs.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – IN GENERAL – where oral evidence was given at trial in
Mandarin and interpreted into English by an interpreter, jointly engaged by the parties – where documents tendered at trial were in Chinese script, together with English translations agreed upon by the parties – where at trial the appellant’s instructing solicitor was fluent in Mandarin and reading Chinese script and had no concerns as to the accuracy of
translation and interpretation evidence – where the appellant sought leave to adduce new expert opinion evidence on appeal seeking to demonstrate error in the trial translation and
interpretation evidence – where the respondents sought to press a responsive application to adduce expert opinion evidence supporting the original translation – whether the proposed expert opinion evidence could have been obtained with reasonable diligence for use at trial – where any concerns as to accuracy of interpretation could have been addressed with reasonable diligence at trial – whether the translation was of significance to the outcome of the trial – where leave should be refused both to the appellant’s application and the
respondents’ responsive application APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where the primary judge dismissed
a claim alleging the plaintiff had been misled and deceived by oral and written representations made by the defendants on the basis of findings that the alleged representations had not been
made – whether the primary judge erred in fact in making those findings – where circumstances failed to justify appellate interference with the primary judge’s relevant fact finding
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, cited Brisbane City Child Care Pty Ltd v Kadell (2020) 5 QR 367; [2020] QCA 181, cited
Director of Public Prosecutions (Cth) v Hart (No 2) [2005]
2 Qd R 246; [2005] QCA 51, followed
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28, citedRobinson Helicopter Company Incorporated v McDermott Sutton v Hunter [2022] QCA 208, followed
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- AGLC
- Wang v Hur [2024] QCA 126
- Case
- [2024] QCA 126
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the proposed expert opinion evidence could have been obtained with reasonable diligence for use at trial and whether any concerns about the accuracy of the interpretation could have been addressed with reasonable diligence at trial. Additionally, the court had to determine whether the translation was significant enough to affect the trial's outcome. The court also had to consider whether there was any error in the primary judge's fact-finding that the alleged representations had not been made.
The court ruled that the proposed expert opinion evidence could have been obtained with reasonable diligence for use at trial, and any concerns about the accuracy of the interpretation could have been addressed at trial. The court held that the translation was not significant enough to affect the trial's outcome. The court found that the circumstances did not justify appellate interference with the primary judge's fact-finding that the alleged representations had not been made. Consequently, the court refused leave to both the appellant's application and the respondents' responsive application. The appeal was dismissed, and no orders were made in favour of either party.
Orders
Orders of the court
1.
The appellant’s and the respondents’ applications for
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
It will appear that the way in which the plaintiff’s further amended pleading and her counsel’s exchanges with the primary judge confined the plaintiff’s case shaped the structure of the primary judge’s fact finding on the question whether the pleaded representations were made. Consideration of the basis on which the primary judge rejected the case as so confined As to the plaintiff, the primary judge found: As to the second, third and fourth defendants, the primary judge found: The primary judge found that in early 2018 the plaintiff was investigating business opportunities for the purpose of satisfying her immigration requirements when she first met the first defendant. They became friends and the plaintiff told her about the requirement that she invest at least $500,000 in an Australian business. In the next few months, the plaintiff continued investigating business opportunities but to no avail. She discussed opportunities with the first defendant. The first defendant told the plaintiff about Bulkbuild in April 2018 and that the second defendant was going to use Bulkbuild to open up a training school. She offered to speak to the second defendant about the possibility of the plaintiff investing in the business as a way to help with the plaintiff’s immigration application. The first Against that background, the primary judge examined the critical question whether the plaintiff could make good her case as to the making of the representations. She made the following relevant findings. At the initial meeting on 17 April 2018, the second defendant was introduced to the plaintiff as the chief financial officer of Bulkbuild and a director and shareholder of the fourth defendant. The second defendant was informed that the plaintiff was looking at investment opportunities for migration purposes to apply for a subclass 888 visa. There was discussion around the fact that the plaintiff and the second defendant’s husband were both from the Yunnan province in China. The plaintiff was told that the second and third defendants were in business together. The second defendant talked about their business interests in a general way. She did not name the fourth defendant. Although there was no dispute that the second defendant had prepared the Internal Document and showed it to the plaintiff, there was a dispute as to when this occurred. The Internal Document was a confidential business plan for the Loyal Education Group. At the time when the second defendant showed the Internal Document to the plaintiff, the second defendant made some handwritten notes on the last page of the document. The plaintiff’s pleaded case was that at meetings on 17 and 18 April 2018, oral and written information was provided to the plaintiff which conveyed the pleaded representations. In oral submissions, counsel for the plaintiff had clarified that it was alleged that the business, RTO and Investment Representations were partly oral and partly conveyed in the Internal Document; the Profitability Representation was oral; and the Training Representation was conveyed in the Internal Document. It was also clarified in oral submissions that the oral representations pleaded at [8(f)] of the statement of claim were made in the context of the second defendant discussing the Internal Document with the plaintiff.