Wong v Kasman

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2019 01543

SUSIE WONG	Plaintiff
v
ANNA JUSRI KASMAN	Defendant

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JUDGE:	DELANY J
WHERE HELD:	Melbourne
DATE OF HEARING:	19-27 October 2020
DATE OF JUDGMENT:	18 December 2020
CASE MAY BE CITED AS:	Wong v Kasman
MEDIUM NEUTRAL CITATION:	[2020] VSC 869

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CONTRACT – Alleged tripartite agreement made at a meeting in 1999, such agreement to be implied from the circumstances – Claim for breach of contract – Alternative claims for misleading and deceptive conduct, estoppel and constructive trust – Claims dependent upon events alleged to have occurred in 1999 and 2010 – Sufficiency of evidence – Watson v Foxman (1995) 49 NSWLR 315 applied – Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32 cited – P’Auer AG & Anor v Polybuild Technologies International Pty Ltd & Anor [2015] VSCA 42 cited.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Monichino QC with Mr E Dober	Rigby Cooke Lawyers
For the Defendant	Mr B Quinn QC with Mr A Bell	Tisher Finer FC Law

TABLE OF CONTENTS

A.. Overview........................................................................................................................................ 1

B.. Chronology.................................................................................................................................... 5

C.. The pleaded claims.................................................................................................................... 17

The contract claim....................................................................................................................... 17
The misleading and deceptive conduct claim........................................................................ 21
The promissory estoppel claim................................................................................................. 22
The constructive trust claim...................................................................................................... 23

D.. The Witnesses............................................................................................................................. 25

Susie Wong................................................................................................................................... 25
Albert Lau.................................................................................................................................... 26
Tommy Tran................................................................................................................................ 28
Ann Phung-Lan........................................................................................................................... 29
Katherine Gaylard....................................................................................................................... 30
Other witnesses relied upon by Susie Wong.......................................................................... 30
Danny Fung........................................................................................................................ 30
Nicolle Austin.................................................................................................................... 31
Mun Soon............................................................................................................................ 31

Anna Kasman.............................................................................................................................. 32
Scott Meneilly.............................................................................................................................. 38
Olivia Elsley................................................................................................................................. 38

E... Legal Principles.......................................................................................................................... 39

F... The Contract Claim: the pleadings and submissions......................................................... 41

G.. The Evidence............................................................................................................................... 45

Introduction................................................................................................................................. 45
1999: The December meeting..................................................................................................... 47
Events prior to 1999.................................................................................................................... 53
1997: Fish Pier..................................................................................................................... 53
1998:Box Hill Sushi Sushi store..................................................................................... 54

2010:The reinvestment conversation and earlier cash payments....................................... 58
Events from 2017......................................................................................................................... 64
August 2017: the Scott Meneilly Interview.................................................................... 64
November 2018: meetings with Olivia Elsley.............................................................. 66
December 2018: meetings between Susie Wong and Anna Kasman......................... 68

H.. The contract claim: consideration........................................................................................... 69

I.... Misleading and deceptive conduct claim: consideration................................................... 72

J:... The promissory estoppel claim: consideration.................................................................... 72

K:. The constructive trust claim: consideration.......................................................................... 73

L... Disposition.................................................................................................................................. 74

HIS HONOUR:

A. Overview

The plaintiff, Susie Wong, was married to Albert Hui Haw Lau (‘Albert Lau’) in 1987 or 1988. Both of them had been born in Malaysia and had migrated to Australia a few years earlier. In November 1990 their marriage ended in divorce, but they continued to have a good relationship with one another.

In around 1994 Susie Wong started displaying sushi in the window of her parents’ Chadstone shop, ’Fisch’. She had the idea of selling sushi from her involvement working part-time at a Japanese restaurant.

In late 1993 or early 1994, Albert Lau, Susie Wong and other business partners opened the first ‘Fish Pier’ store in Frankston. That was followed by stores in the David Jones Food Hall and Eastland shopping centre. In 1997 Albert Lau bought out his business partners in the Fish Pier business, including Susie Wong.

In 1998 Susie Wong and Albert Lau, working together, established a ‘Sushi Sushi’ store in Box Hill, Victoria. It was to be the first of many such stores. Albert Lau was the legal owner. Susie Wong was not recorded as a person having any share in the ownership of the Box Hill store. However, Susie Wong alleges that she was a ‘silent partner with a 10% interest’.[1]
[1]Third Further Amended Statement of Claim, dated 21 October 2020 (filed and served pursuant to Orders made on 21 October 2020), (‘TFASC’), [1 particular (vi)] (‘TFASC’).

In April 1999 Albert Lau married Anna Jusri Kasman, the defendant in this proceeding. On 21 October 1999 their first child, Brandon Lau, was born. Also during 1999, and before November of that year, a second Sushi Sushi store was opened, this time at Chadstone shopping centre. At a time after the Chadstone store opened, Anna Kasman also began to work in the Sushi Sushi Business.[2]
[2]References to the Sushi Sushi Business, and the Business from time to time, refer only to the Sushi Sushi Business and not to the Fish Pier business.

Between 1999 and 2018 both the Sushi Sushi and the Fish Pier businesses greatly expanded, including in the case of Sushi Sushi, using a franchising model as well as directly owned and operated outlets. Susie Wong, Albert Lau, and Anna Kasman all worked in the Sushi Sushi Business. Over time, Susie Wong and Anna Kasman became very close, Susie Wong describing their relationship as ‘like sisters’.[3] The Sushi Sushi Business was increasingly conducted via a large number of companies and trusts. None of those business structures named Susie Wong as a director, shareholder, or beneficiary.
[3]Transcript of Proceedings, Wong v Kasman (Supreme Court of Victoria, Delany J, 19-27 October 2020) (‘Transcript’), 20 October 2020, 184.

In May 2012 Albert Lau and Anna Kasman separated.[4] On 24 November 2016 a property settlement between Albert Lau and Anna Kasman was the subject of consent orders in the Family Court of Australia.[5] Pursuant to the property settlement, amongst other assets of the marriage that were divided, Albert Lau took the Fish Pier Shops, valued at $3,800,000 and Anna Kasman took the Sushi Sushi Business, valued at $38,895,000.[6]
[4]Plaintiff, Revised Witness Statement of Albert Lau, dated 18 October 2020 (with changes made pursuant to Delany J’s ruling on 20 October 2020), (‘Witness Statement of Albert Lau’), [51].
[5]Court Book, B340.
[6]Ibid, B359.

From about 2003, Susie Wong’s area of specialty was locating suitable premises for new stores, dealing with landlords, and attending to leasing and property matters. In addition she had responsibility for dealings with franchisees. Albert Lau’s area of specialty was sourcing fresh produce. Anna Kasman’s area of specialty, albeit she denied any detailed involvement in that side of the Business prior to 2017 in her oral evidence, was financial management.

Susie Wong last worked in the Business on 16 November 2018. She ended her employment in May 2019. Earlier in 2019 Anna Kasman had sold 94% of the Sushi Sushi Business to a third party purchaser for $48,050,260.[7]
[7]Ibid, A34.

Susie Wong alleges that in mid-December 1999 a conversation took place at the Chadstone Sushi Sushi store between she and Albert Lau in the presence of Anna Kasman and one of the sushi chefs, Tommy Tran. It is her evidence that Albert Lau said to her in front of Anna Kasman and Tommy Tran, ’you have 10% so you better work all night on 23 December’. It is Susie Wong’s evidence that this was a reference to her 10% interest in both the Fish Pier business and the Sushi Sushi Business which, at that time, she considered to be part of the same business.[8]
[8]Plaintiff, Revised Witness Statement of Susie Wong, dated 19 October 2020 (with changes made pursuant to Delany J’s ruling on 20 October 2020), (‘Witness Statement of Susie Wong’), [49].

Susie Wong seeks orders against Anna Kasman that give effect to what she contends is her entitlement in the Sushi Sushi Business. The opening submissions claimed an entitlement to 10% of the net proceeds of sale of Anna Kasman’s equity interest in the Sushi Sushi Business, together with an amount equal to 5% of the distributions paid to Anna Kasman between 1 January 2010 and 31 December 2016, and 10% of the distributions paid to Anna Kasman from 1 January 2017.[9]
[9]Plaintiffs, Plaintiff’s Outline of Opening Submissions, dated 13 October 2020 (‘Plaintiff’s Opening Submissions’), [3].

2010, which marks the beginning of the claim period for a percentage of distributions paid to Anna Kasman, is an important date in the manner in which the case is framed. It is alleged that over a period of years up until 2010, cash payments were made to Susie Wong by the Sushi Sushi Business of between $50,000 and $70,000 per annum ‘on account of her profit share’.[10]
[10]TFASC, [6, particular (iii)].

The parties are agreed that total profits for the entities comprising the Sushi Sushi Business for the 2012–2018 financial years inclusive were $52,244,975.00. They are also agreed that the total distributions by all of the entities comprising the Sushi Sushi Business, to Anna Kasman (or her related entities) for the same period, were $31,181,270.[11]
[11]Court Book, A34.

Susie Wong framed her claim against Anna Kasman on four separate bases:[12]

(a)breach of contract;
(b)misleading or deceptive conduct;
(c)promissory estoppel; and
(d)constructive trust.

[12]Plaintiff’s Opening Submissions, [4].

While it will be necessary to consider the requisite elements of each of these causes of action, the outcome of this litigation does not turn on legal niceties or categorisations. It is a case which, for each of the causes of action alleged, turns on whether Susie Wong’s evidence of a single conversation, said to have occurred over 20 years ago, and as to the effect of that conversation, is accepted by the Court.[13] The causes of action other than in contract also depend on the Court accepting Susie Wong’s evidence of a separate conversation said to have taken place with Anna Kasman ten years ago, in 2010. It is alleged that in that conversation Anna Kasman said that it would be better for Susie Wong if her share of the profits of the Sushi Sushi Business were reinvested in the Business on her behalf and that Anna Kasman would implement that course of action.[14]
[13]TFASC, [4].
[14]Ibid, [6A].

It goes without saying that Susie Wong bears the onus of proof. No witness corroborates her account of either of the critical conversations. There is no document, contemporaneous or otherwise, which evidences or supports the claims Susie Wong seeks to advance.

On the second day of the trial, part way through the cross-examination of Susie Wong, leave was given to amend the case as pleaded, being the case that had been opened. The amended case as set out in the Third Further Amended Statement of Claim (‘TFASC’) abandoned the claim to ‘a 10% silent interest’ in the Sushi Sushi Business,[15] and confined the claim by Susie Wong to an entitlement to 10% of the net profits of the Sushi Sushi Business. As Susie Wong did not bring a claim against Albert Lau, in practical terms the amended claim is for 5% of the distribution of profits made to Anna Kasman from the Sushi Sushi Business from 2012 until 2017, and for 10% of the net profit from January 2017 until 30 June 2018.
[15]Ibid [4]; Transcript, 20 October 2020, 160, 168-171.

B. Chronology

An appreciation of the chronology of relevant events that span more than two decades is important to an evaluation of the evidence given by the witnesses and of the claims made by Susie Wong.

Prior to trial the parties provided a joint non-contentious chronology which helpfully included references to the witness statements. In addition, the parties prepared a Statement of Agreed Facts (‘SOAFs’).

In the chronology that follows there is some repetition of some of the critical dates and issues earlier identified as part of the overview of the dispute.

In 1987 or 1988 Susie Wong and Albert Lau were married, in Melbourne. Both had earlier moved to Australia from Malaysia.[16]
[16]Witness Statement of Susie Wong, [6]; Witness Statement of Albert Lau, [5].

In November 1990 Susie Wong and Albert Lau were divorced.[17]
[17]Witness Statement of Albert Lau, [5].

In 1992 Susie Wong’s parents purchased three shops in Chadstone. In mid-1991 Susie Wong’s mother purchased a fish shop business in Greensborough.[18]
[18]Witness Statement of Susie Wong, [9].

In 1993 Albert Lau, Susie Wong, Jessie Piu and Suang Vung Lee, Susie Wong and Albert Lau’s friends, opened a Fish Pier fish and chip shop at Eastland shopping centre.[19]
[19]Ibid, [16].

In 1997 Albert Lau bought out Susie Wong’s 25% share of the Fish Pier business and the shares of their friends and became the 100% owner of that business.[20] It was Susie Wong’s evidence that when Albert Lau bought out her share of the Fish Pier business, that he offered that she become a partner in the Fish Pier business and that she would receive a 10% interest in the Fish Pier business in return for continuing to assist him with that business.[21] It is Albert Lau’s evidence in his revised witness statement, that he became the 100% owner of Fish Pier when he bought out all his partners.[22] His revised witness statement made no reference to an agreement reached at that time with Susie Wong that she would receive a 10% interest in the Fish Pier business.
[20]Ibid, [22]; Witness Statement of Albert Lau [9].
[21]Witness Statement of Susie Wong, [22].
[22]Witness Statement of Albert Lau, [9].

In April 1997 Albert Lau asked Anna Kasman to marry him.[23] At that time Anna Kasman was living in Jakarta, she had resigned from the bank at which she had been employed and had begun working in her family retail export food business.[24] In August of that year Albert incorporated a company, using Anna Kasman’s name, in error, ’Justry’ Kasman, as a romantic gesture.[25]
[23]Defendant, Witness Statement of Anna Jusri Kasman, dated 30 August 2019, with hand written amendments made to the statement on 22 October 2020 (‘Witness Statement of Anna Kasman’), [13]–[14].
[24]Ibid, [12].
[25]Ibid, [17].

In 1998 Albert Lau and Susie Wong opened a Sushi Sushi store in Box Hill. Albert Lau provided 100% of the capital required to open the Box Hill store via a bank loan. It was Susie Wong’s evidence that she contributed $10,000 to the Business because the budget had blown out.[26]
[26]Witness Statement of Susie Wong, [28]. The Witness Statement of Albert Lau at [19], states that ‘Susie may have contributed some money to set up the store but I cannot remember for certain. I remember Susie used this money to buy rice cookers and other items.’.

Susie Wong declared a taxable income of $30,000 for the 1998 financial year.[27]
[27]Court Book, D209.

In May 1999 a lease was signed for a new Sushi Sushi store in Chadstone. The lease was in the name of one of Albert Lau’s companies.[28]
[28]Witness Statement of Susie Wong, [35]–[36].

In April 1999 Albert Lau and Anna Kasman were married.[29] Albert Lau gave evidence in his revised reply witness statement that he told Anna Kasman before their marriage that Susie Wong still had a 10% profit share in the Sushi Sushi Business.[30] Anna Kasman denies that any such conversation took place.
[29]Witness Statement of Anna Kasman, [27]; Witness Statement of Albert Lau, [10].
[30]Plaintiff, Revised Reply Witness Statement of Albert Lau, dated 20 October 2020 (with changes made pursuant to Delany J’s ruling on 20 October 2020) (‘Reply Witness Statement of Albert Lau’), [3]. The amendments to his reply statement deleted a reference to telling Anna Kasman about the 10% profit share ‘on several occasions’, leaving a reference to what appears to a single conversation on a date not identified.

Susie Wong declared a taxable income of $20,719 for the 1999 financial year.[31]
[31]Court Book, D219.

On 21 October 1999 Brandon Lau, the first child of Albert Lau and Anna Kasman was born.[32] Anna Kasman gave evidence, and Susie Wong agreed, that in accordance with custom, Anna Kasman did not leave home for all or most of the first month following the birth of Brandon.[33]
[32]Witness Statement of Anna Kasman, [36].
[33]Ibid; Transcript, 22 October 2020, 418-9; Transcript 20 October 2020, 228-9.

In November 1999 the Chadstone Sushi Sushi store opened. In Susie Wong’s original witness statement she referred to the opening as taking place in May 1999, but this date was later revised.[34] At trial, it was accepted by the parties that the Chadstone store opened after Brandon Lau was born. Albert Lau gave evidence that he asked Anna Kasman to become involved in the Sushi Sushi Business in mid-1999.[35]
[34]Witness Statement of Susie Wong, [38].
[35]Witness Statement of Albert Lau, [25]–[26].

It is the case for Susie Wong that in mid-December 1999 there was an informal meeting at the Chadstone store. Albert Lau, Anna Kasman and Susie Wong were present, and Tommy Tran was working behind the counter. It is Susie Wong’s evidence that Albert Lau said in front of Anna Kasman and Tommy Tran ’you have 10% so you better work all night on 23 December’.[36] It is the evidence of Susie Wong that it was agreed that moving forward, Anna Kasman would obtain finance for the Sushi Sushi Business from her mother in Indonesia, that she would collect cash, attend to daily banking and that she would set up all necessary companies for the operation of the Business with the external account for the Business. Albert Lau was to continue to source produce and to oversee the management of the Box Hill and Chadstone Sushi Sushi stores.[37] At trial, Albert Lau denied any discussion took place with Anna Kasman about Anna Kasman’s mother making a financial contribution to the Sushi Sushi Business.
[36]Witness Statement of Susie Wong, [49].
[37]Witness Statement of Susie Wong, [52]–[53].

Albert Lau gave evidence in his revised witness statement that he did –

not recall Anna, Susie and I ever sitting down together to discuss Susie’s interest in the Sushi Sushi business. We may have done so. I just do not remember. However, I do distinctly remember that at the beginning of Anna’s involvement in the business I told her that Susie was entitled to a 10 per cent profit share. Anna questioned this… I said to Anna that Susie was valuable in being able to source new stores that we needed her in the business. Anna accepted this, although reluctantly. The issue was never raised again.[38]

[38]Witness Statement of Albert Lau, [31].

Anna Kasman denies any conversation occurred at the Chadstone premises in mid-December 1999 as alleged by Susie Wong. She also denies any conversation occurred with Albert Lau as referred to in his revised witness statement.

Tommy Tran, a sushi chef who gave evidence on witness statement on behalf of Susie Wong and was cross-examined, did not give evidence of being present at an informal meeting at the Chadstone store in mid-December 1999. He gave evidence that ‘Anna did not begin to work in the Chadstone store until sometime after it opened’.[39]
[39]Plaintiff, Revised Witness Statement of Tommy Tran, dated 21 October 2020 (‘Witness Statement of Tommy Tran’), [9].

Tommy Tran was responsible for employing staff and counting the takings at the Chadstone store. It was his evidence that Tommy Widjaja, who at that time and for about the next 15 years, lived with Anna Kasman and Albert Lau in their family home, collected the money from the till and did the banking.[40] Tommy Widjaja did not give evidence at the trial.
[40]Ibid, [9].

Susie Wong declared a taxable income of $16,200 for the 2000 financial year.[41]
[41]Court Book, D228.

Anna Kasman gave evidence that in around 2000, she received finance from her mother and sister to assist the Business.[42] It is the evidence of Susie Wong that from around this time, and Anna Kasman says that from around 2002, they became very close friends.[43]
[42]Witness Statement of Anna Kasman, [44(d)].
[43]Witness Statement of Susie Wong, [66]; Witness Statement of Anna Kasman, [28].

In May 2001, Claudia Lau, the second child of Albert Lau and Anna Kasman was born.[44] A new Sushi Sushi store opened at The Glen shopping centre. Fish Pier also opened a store at The Glen.[45] Albert Lau established a new company called Sushi Ken Pty Ltd, a ‘partnership’ with Tommy Tran and Leanne Gianchino, to set up a market stall at the South Melbourne market to sell sushi.[46]
[44]Witness Statement of Anna Kasman, [50].
[45]Witness Statement of Susie Wong, [61].
[46]Witness Statement of Anna Kasman, [51].

Susie Wong declared a taxable income of $39,800 for the 2001 financial year.[47] Her category of employment according to her tax return was ‘store manager’. In September 2001 Susie Wong visited New York as part of a retail study tour.[48]
[47]Court Book, D238.
[48]Witness Statement of Susie Wong, [62]; Plaintiff, Witness Statement of Mun Soon, dated 17 July 2019, [26].

Before Susie Wong gave evidence, the Court was informed that she would seek a certificate against self-incrimination, in relation to that part of her evidence that concerned payments made to her in cash from the Sushi Sushi Business.[49] At trial, Susie Wong gave evidence that in the 2001 calendar year, she started to receive cash payments of ‘$5,000, $10,000, but I cannot be sure’.[50] It was her evidence, the subject of a certificate under s 128(7) of the Evidence Act 2008 (Vic),[51] that from then until 2010 when she did not receive a profit share, that, she received cash payments, in addition to her salary, of somewhere between $50,000 to $70,000 per year, none of which she declared to the Australian Taxation Office (‘ATO’).[52]
[49]Transcript, 20 October 2020, 136-9.
[50]Ibid, 206.
[51]Certificate, dated 6 November 2020, which states that ‘This Court certifies under section 128 of the Evidence Act 2008 (Vic) that evidence given in this proceeding by SUSIE WONG on 20 October 2020, as recorded in the pages of transcript annexed to this certificate, namely pages 198 – 219, 233 – 234, 237 – 239, is evidence to which section 128(7) of that Act applies’.
[52]Transcript, 20 October 2020, 212-9. Noting that in 2002 it may have been less, substantially less than $50,000 – see Transcript, 213.

Anna Kasman’s evidence is that she is not aware of Susie Wong ever receiving profit distributions from the Business, however that it is likely that Susie Wong may have received bonuses or commission payments as a reward for securing lease sites.[53] Anna Kasman does not agree that the cash payments, which Susie Wong said were given to her in cash by Anna Kasman, were made.[54] Albert Lau does not address these cash payments in his revised witness statement and he was not cross-examined concerning that topic.
[53]Witness Statement of Anna Kasman, [80].
[54]Transcript, 22 October 2020, 455.

Susie Wong declared a taxable income of $32,060 for the 2002 financial year.[55] This is the first of seven to eight years in which, according to her evidence, in addition to declared income, she received a further $50,000–$70,000 in cash.
[55]Court Book, D250-1.

In 2003 Susie Wong’s daughter Louisa was born. In the 2003 financial year Susie Wong declared a taxable income of $35,610.[56] Sushi Sushi stores were opened at Victoria Gardens and Whitehorse Plaza. By this time there were seven Sushi Sushi stores, six Fish Pier stores, the Sushi Ken store, three Chow Mien stores, a ‘Nudle’ store at Chadstone, two Teriyaki Boy stores, a Thai Stir Fry store and a Bubble Bubble store at The Glen.[57]
[56]Court Book, D264.
[57]Witness Statement of Anna Kasman, [60]-[61].

In 2004 the head office of Sushi Sushi and Fish Pier moved to Burke Road, Camberwell.[58] Susie Wong negotiated a three year lease for Sushi Sushi premises at Singapore Airport.[59]
[58]Ibid, [66]; Witness Statement of Susie Wong, [64]; Witness Statement of Albert Lau, [37].
[59]Witness Statement of Susie Wong, [69].

In the 2004 financial year Susie Wong declared a taxable income of $61,450.[60]
[60]Court Book, D278.

In March 2004 Albert Lau and Anna Kasman received detailed financial advice in writing from accountants, McLean Delmo, in relation to business structures.[61] The advice was given in the context of proposals to both continue the expansion of the Sushi Sushi Business and to become involved in franchising. At around the same time, Franchise Alliance prepared a Sushi Sushi franchise feasibility study.[62] Albert Lau and Anna Kasman were both involved and met with the authors of that study.[63] The ‘Client Brief’ section of the feasibility study refers to Anna Kasman and Albert Lau conceiving the concept and developing the recipes and formulas in conjunction with specialist Japanese chefs.[64]
[61]Court Book, E64-81.
[62]Court Book, B203-269.
[63]Transcript, 21 October 2020, 310-1.
[64]Court Book, B205.

New companies and business structures were established in accordance with the McLean Delmo advice. They advised Albert Lau and Anna Kasman that Albert Lau should be a director of the various companies and that for asset protection purposes, Anna Kasman should not be a director. Companies and trusts established at around that time and subsequently, reflected that advice. Anna Kasman was a shareholder, but not a director.[65]
[65]Plaintiff, Aide Memoire for Plaintiff’s Closing Submissions (‘Aide Memoire’), Section E: Summary Table - Directors and Shareholders of Entities, 104-114.

In 2005, as referred to in her witness statement, Anna Kasman appointed Paul Grixti an operational manager of the Sushi Sushi Business.[66] Susie Wong did not report to Mr Grixti.[67]
[66]Witness Statement of Anna Kasman, [77].
[67]Ibid, [77]–[78]; Witness Statement of Albert Lau, [48].

In the 2005 financial year Susie Wong declared a taxable income of $100,000.[68] In her witness statement Susie Wong said that she also received a 10% profit share from time to time.[69]
[68]Court Book, D280.
[69]Witness Statement of Susie Wong, [76].

In the 2006 financial year, Susie Wong declared a taxable income of $104,525.[70]
[70]Court Book, D282.

In the 2007 financial year, Susie Wong declared a taxable income of $108,219.[71]
[71]Court Book, D284.

In December 2007 Albert Lau, Anna Kasman and their family moved to a new house at 5 Grosvenor Court, Toorak.[72] Consistent with the 2004 McLean Delmo advice, the Grosvenor Court Toorak property was registered in the sole name of Anna Kasman.
[72]Witness Statement of Anna Kasman, [83]; Revised Witness Statement of Ann Phung-Lan, dated 20 October 2020 (with changes made pursuant to Delany J’s ruling on 20 October 2020 (‘Witness Statement of Ann Phung Lan’), [6].

In the 2008 financial year Susie Wong declared a taxable income of $112,217.[73]
[73]Court Book, D286.

In the 2009 financial year Susie Wong declared a taxable income of $129,280,[74] with her category of employment specified as, ’retail consultant’. In that same year Susie Wong came up with the idea of a specialist Sushi Izakaya and a plan to establish separate shops.[75]
[74]Court Book, D288.
[75]Witness Statement of Susie Wong, [85]–[87]; Witness Statement of Albert Lau, [43]–[44].

By 2009, companies of which Anna Kasman was directly, or indirectly the shareholder, had acquired the freehold of properties at 700 Glenferrie Road, Hawthorn, 148 Swanston Street, Melbourne, 86 Carroll Road, Oakleigh South, 317 Swanston Street, Melbourne and 227 Collins Street, Melbourne. Those properties, all acquired by interests associated with, or in the name of, Anna Kasman from 31 January 2004 until 21 October 2009,[76] continued to be held until at least 24 November 2016. At that time, as agreed between Anna Kasman and Albert Lau in their Family Court property settlement, the combined net value of those properties and of the Toorak property registered in Anna Kasman’s name was $37.7 million.[77]
[76]Aide Memoire, 115, which lists the properties acquired by Kasman Interests between 2004-2009 as: 700 Glenferrie Road, Hawthorn, 148 Swanston Street, Melbourne, 86 Carroll Road, Oakleigh South, 5 Grosvenor Court, Toorak, 317 Swanston Street, Melbourne and 227 Collins Street, Melbourne.
[77]Ibid.

Susie Wong gave evidence in her witness statement that:

From about 2010 onwards, I did not receive any share of the profits as I had previously. In about 2010, Anna said to me in person, either in a shop we were visiting or in the head office in Carroll Road, Oakleigh that I would be heavily taxed if profits were distributed to me. She said it would be better for all of us to reinvest the profits in the business and that she would sort it all out. I trusted Anna to look after me.[78]

[78]Witness Statement of Susie Wong, [88].

Anna Kasman denies that any such conversation took place. This is not a conversation to which it is alleged Albert Lau was a party.

Anna Kasman gave evidence in her witness statement that there was a conversation between she and Susie Wong in 2010. It was her evidence that Susie Wong came to her at that time and asked for a higher salary.[79] Susie Wong denied that she went to see Anna Kasman to ask for a higher salary. It was her evidence that she went to Anna Kasman for her 10% profit share and that Anna Kasman responded that Susie Wong’s profit share had been reinvested.[80]
[79]Witness Statement of Anna Kasman, [90].
[80]Plaintiff, Reply Witness Statement of Susie Wong, dated 16 September 2019, [23].

In the 2010 financial year Susie Wong declared a taxable income of $206,244,[81] an increase of approximately $70,000 in her PAYG salary from the Sushi Sushi Business when compared to the previous financial year.
[81]Court Book, D290.

In November 2010, Ann Phung-Lan joined the Sushi Sushi Business as Chief Financial Officer. At that time there were about 52 company-owned stores and four franchise stores operating.[82] The group structure was very complicated and the processes were manually intensive, with annual tax planning prepared by Ann Phung-Lan in conjunction with the external tax accounts, Vargiu & Associates.[83]
[82]Amended Defence, dated 22 October 2020, filed in accordance with leave granted by Delany J pursuant to Orders made on 22 October 2020 (‘Defence’), [7].
[83]Witness Statement of Ann Phung Lan, [26].

In 2011 Albert Lau and Anna Kasman decided to separate, although Albert Lau did not move out of the Toorak house until mid-2012.[84] In the 2011 financial year Susie Wong declared a taxable income of $203,083.[85]
[84]Witness Statement of Anna Kasman, [95].
[85]Court Book, D295.

In May 2012, Albert Lau and Anna Kasman separated following their return from a business trip to Japan.[86]
[86]Witness Statement of Albert Lau, [51].

In the 2012 financial year, as recorded in the SOAFs, total profit for all Sushi Sushi entities was $12,332,443. $8,869,033 was distributed to Anna Kasman or her related entities.

In the 2012 financial year Susie Wong declared a taxable income of $191,846.

In the 2013 financial year, as recorded in the SOAFs, total profits for all Sushi Sushi entities was $8,676,050 of which $4,923,058 was distributed to Anna Kasman or to her related entities. In the 2013 financial year Susie Wong declared a taxable income of $209,187.

On 19 April 2014 Albert Lau and Anna Kasman were divorced.[87] Tommy Tran left the Sushi Sushi Business in 2014.[88] In May of that same year, Anna Kasman and Susie Wong went on a business trip to New York. They met with Katherine Gaylard, one of the witnesses upon whose evidence Susie Wong relies, in the course of that trip.
[87]Witness Statement of Anna Kasman, [99].
[88]Witness Statement of Tommy Tran, [13].

In the 2014 financial year, as recorded in the SOAFS, total profit for all Sushi Sushi entities was $4,595,623 of which $3,214,085 was distributed to Anna Kasman or to her related entities. In the 2014 financial year Susie Wong declared a taxable income of $268,613.[89]
[89]Court Book, D304.

In the 2015 financial year, as recorded in the SOAFs, total profit for all Sushi Sushi entities was $4,304,973, of which $1,610,571 was distributed to Anna Kasman or to her related entities. In the 2015 financial year, Susie Wong declared a taxable income of $237,309.[90] In the 2015 calendar year, Paul Grixti was made redundant and Ann Phung-Lan became the most senior manager in the Business.[91]
[90]Court Book, D316.
[91]Witness Statement of Anna Kasman, [101].

In the 2016 financial year, as recorded in the SOAFs, total profit for all Sushi Sushi entities was $7,0206,644 of which $5,082,757 was distributed to Anna Kasman or her related entities. In the 2016 financial year, Susie Wong declared a taxable income of $246,986.[92]
[92]Court Book, D328.

In September 2016, the Federal Circuit Court gave judgment in a proceeding between a former employee of the Sushi Sushi Business and the company that was the vehicle for the employment of staff, Caroll Resources Pty Ltd.[93]
[93]Simpson v Carroll Resources Pty Ltd [2016] FCCA 2430 (Wilson J).

It was the evidence of Ann Phung-Lan, that up until 2016, she observed Anna Kasman and Susie Wong to be working very closely together.[94]
[94]Witness Statement of Ann Phung Lan, [36].

On 24 November 2016, Albert Lau and Anna Kasman entered into a property settlement, the subject of consent orders in the Family Court of Australia.[95] Ann Phung-Lan acted as a go-between to broker the settlement.[96] The net asset pool of the parties to the marriage, adopting values attributed to individual assets and agreed upon by them, was $110 million.[97] The Family Court orders provided, amongst other things, that Anna Kasman took the Sushi Sushi Business and associated assets and Albert Lau took the Fish Pier business and associated assets. The Sushi Sushi Business was valued at that time at $38,895,000.00.
[95]Court Book, B336.
[96]Witness Statement of Ann Phung Lan, [43].
[97]Court Book, B367.

It is Susie Wong’s evidence that following the breakdown of Albert Lau and Anna Kasman’s marriage, she approached Anna Kasman and asked that she be paid out. Susie Wong says that she made the request in a conversation in December 2016. Susie Wong says that Anna Kasman did not answer her.[98] In her witness statement, Anna Kasman, responding to this aspect of Susie Wong’s evidence says that

I disagree that dealings between Susie and I became awkward at that time. I did not have a conversation with Susie to the effect alleged. At no time did I ever discuss the possibility of Susie being “paid out”.[99]

[98]Witness Statement of Susie Wong, [95]–[99].

[99]Witness Statement of Anna Kasman, [106].

It is the evidence of Anna Kasman that she and Susie Wong remained close personal friends until at least 2017.[100] In the 2017 financial year, as recorded in the SOAFs, total profit for all Sushi Sushi entities was $9,249,257 of which $4,522,315 was distributed to Anna Kasman or her related entities. In the 2017 financial year, Susie Wong declared a taxable income of $237,937.[101]
[100]Ibid, [107].
[101]Court Book, D331.

In August 2017 Anna Kasman employed Scott Meneilly as a consultant to the Business. After approximately four weeks, Mr Meneilly became CEO of the Business.[102] In late 2017 Olivia Elsley was appointed as Chief Operating Officer by Mr Meneilly.[103]
[102]Witness Statement of Anna Kasman, [108]–[109].
[103]Witness Statement of Scott Robert Meneilly, dated 30 August 2019 (with changes made pursuant to Delany J’s ruling on 22 October 2020) (‘Witness Statement of Scott Meneilly’), [48].

In August 2017, as part of his review of the Business, Mr Meneilly interviewed staff, including Susie Wong. His contemporaneous handwritten note of that interview records ‘founder — not an owner’.[104]
[104]Court Book, B383.

Susie Wong gave evidence in her witness statement that in late 2017 she again spoke to Anna and asked ‘why not pay me out?’.[105] Anna Kasman denies that any such conversation took place.[106]
[105]Witness Statement of Susie Wong, [102].
[106]Witness Statement of Anna Kasman, [114]; Transcript, 22 October 2020, 472.

In the 2018 financial year, as recorded in the SOAFs, total profit for all Sushi Sushi entities was $6,059,985 of which $2,959,451 was distributed to Anna Kasman or to her related entities. In the 2018 financial year, Susie Wong declared a taxable income of $261,524.[107]
[107]Court Book, D333.

On 16 November 2018 a meeting took place between Olivia Elsley and Susie Wong. Susie Wong did not return to work in the Sushi Sushi Business after that meeting. The 16 November 2018 meeting followed a meeting two days earlier during which Olivia Elsley told Susie Wong that she would be issued with a warning letter concerning her employment.[108]
[108]Witness Statement of Susie Wong, [111].

On 20 December 2018 a meeting took place between Susie Wong and Anna Kasman at a café in Mount Waverley. There are conflicting versions about what took place at that meeting.[109] However, it is common ground there was no discussion at that meeting of Susie Wong’s claim to ‘part own’ the Business.
[109]Reply Witness Statement of Susie Wong, [26]; Cf. Witness Statement of Anna Kasman, [119]–[121].

On 9 April 2019 Susie Wong instituted this proceeding. In May 2019 Susie Wong ceased to be employed by the Sushi Sushi Business.[110] Prior to that time and in the early part of 2019 Anna Kasman sold a 94% interest in the Sushi Sushi Business to third party for $48,050,260.[111]
[110]Witness Statement of Susie Wong, [118].
[111]Court Book, A34.

On 10 September 2019 Susie Wong issued proceedings in the County Court against Caroll Resources Pty Ltd, and Scott Meneilly, claiming various employee entitlements relating to her work in the Business.[112] That proceeding was later settled on confidential terms.[113]
[112]Court Book, D189–205.
[113]Transcript, 21 October 2020, 287.

C. The pleaded claims
The contract claim

As opened, the contract claim proceeded on the basis of a December 1999 informal, tripartite agreement between Susie Wong, Anna Kasman and Albert Lau (‘Original Pleaded Agreement’).[114] The Original Pleaded Agreement, alleged that, in consideration of Susie Wong’s continued involvement in the management and expansion of the Business, she would be entitled to a 10% silent interest in the Business, including a 10% share of the net profits generated by the Business, which would either be distributed to her, or alternatively would be reinvested for her benefit.[115]
[114]Further Amended Statement of Claim, dated 10 August 2020, [4].
[115]Ibid.

The Original Pleaded Agreement was replaced part way through the evidence of Susie Wong with the TFASC, dated 21 October 2020. The TFASC removed any claim that the tripartite agreement included a ’10% silent interest’ in the Sushi Sushi Business (‘Amended Agreement’). The Amended Agreement confined the allegation of what was agreed to a 10% share of net profit.[116] Paragraph 4 of the TFASC in mark-up is as follows:

In about late-1999, the Plaintiff, the Defendant and Albert agreed that in consideration of the Plaintiff’s continued involvement in the management and expansion of the Sushi Sushi business (Business), the Plaintiff would be entitled to ~~a ten (10) per cent silent interest in the Business, including~~ ten (10) per cent of the net profits to be generated by the Business going forward, which would either be distributed to her or reinvested in the Business for her benefit (Agreement).

[116]TFASC, [4]. In accordance with leave granted by Orders made 21 October 2020, the plaintiff filed the TFASC, which, amongst other amendments, deleted paragraph [4 particular (ii)(G)].

The TFASC alleged implied terms of the Amended Agreement that Anna Kasman and Albert Lau would procure the corporate entities operating the Sushi Sushi Business to make distributions of profit to Susie Wong equal to 10% of the net profits generated by the Business in each financial year on and following January 2000. Alternatively, they would procure those corporate entities to set aside 10% of the net profits generated by the Business in each financial year following 1 January 2000, on Susie Wong’s behalf.[117] Further, that upon the sale of their controlling equity interest in the Sushi Sushi Business, Albert Lau and Anna Kasman would pay Susie Wong from the net proceeds of sale, an amount equal to the value of her 10% accumulated entitlement to profit share which had not previously been paid to her but was to be reinvested on her behalf.[118]
[117]Ibid, [14].
[118]Ibid.

Susie Wong alleged that Anna Kasman breached the Amended Agreement by:

(a) failing to procure the corporate entities operating the Sushi Sushi Business to set aside 10% of the net profits generated by the Business in each financial year on and following 1 January 2010, for Susie Wong’s behalf; and

(b) refusing to acknowledge that Susie Wong is entitled to be paid out of the net proceeds of sale of Anna Kasman’s equity share an amount equal to the value of her accumulated profit share which had not been previously paid to her but which was to be reinvested on her behalf.[119]

[119]Ibid, [15].

In support of her contract claim, Susie Wong placed reliance upon Vroon BV v Foster’s Brewing Group Ltd,[120] where Ormiston J held that an offer and acceptance are not essential elements to identify a binding contract.[121] It was submitted that the existence of a contract can be established or inferred where a manifestation of mutual assent must be implied from the circumstances.[122] In Vroon, Ormiston J referred to the decision of Meates v Attorney-General,[123] where Cooke J said that the question is whether ‘viewed as a whole and objectively from the point of view of reasonable persons on both sides, the dealings show a concluded bargain’.[124]
[120][1994] 2 VR 32 (‘Vroon‘).
[121]Ibid, 81-3.
[122]Plaintiff’s Opening Submissions, [8], referring to Vroon BV v Foster’s Brewing Group [1994] 2 VR 32, 81-3; cited with approval in P’Auer AG & Anor v Polybuild Technologies International Pty Ltd & Anor [2015] VSCA 42, [10] (Whelan JA, Ferguson JA agreeing). See also Holt v Bunney [2020] SASCFC 89, [137]-[148] (Nicholson J, Kourakis CJ and Hughes J agreeing).
[123][1983] N.Z.L.R. 308, 377 (C.A.).
[124][1994] 2 VR 32, [82]; cited with approval in PRA Electrical Pty Ltd v Perseverance Exploration Pty Ltd & Anor [2007] VSCA 310; (2007) 20 VR 487, [6] (Nettle JA).

Anna Kasman denied the Amended Agreement. She denied the criteria exist for the implication of terms for which Susie Wong contends.[125]
[125]Defendants, Defendant’s Closing Submissions, dated 26 October 2020 (‘Defendant’s Closing Submissions’), [127]-[129].

Anna Kasman pleaded three positive defences in her Amended Defence. The first, acquiescence, waiver and release,[126] the second, laches,[127] and the third, that any claim to profit share for a period more than six years before the commencement of the proceeding, being 9 April 2019, is statute barred by reason of s 5 of the Limitation of Actions Act 1958 (Vic).[128]
[126]Defence, [27(b)].
[127]Ibid, [27(c)].
[128]Ibid, [27(d)].

In final submissions Anna Kasman further contended that if there was a tripartite agreement reached in 1999, which she denied, then, any such agreement must have been determined upon the completion of the Family Court property settlement. As a result, there can be no liability for Anna Kasman (or Albert Lau) after the completion of the property settlement.

Paragraph 9(b) of the TFASC pleads the transfer of Albert Lau’s interest in the Sushi Sushi Business to Anna Kasman, as part of the settlement. How the tripartite agreement continued after the settlement and how Albert Lau ceased to be a party to the agreement and his liability to pay 5% of profit to Susie Wong came to be transferred to Anna Kasman, so that she was obliged thereafter to pay 10% of profit to Susie, is not articulated. There is no plea of novation, and no fresh contract between Susie Wong and Anna Kasman, coming into existence at the time of the Family Court settlement, is alleged. In those circumstances Anna Kasman contended that it was not open for Albert Lau to unilaterally exit the agreement unless his conduct is taken to have terminated the agreement by (in effect) giving reasonable notice.

In her revised reply, Susie Wong relied upon s 21 of the Limitationof Actions Act 1958 (Vic),[129] and pleaded that there was fraudulent concealment on the part of Anna Kasman between 2011 and 2018, with the consequence that time does not run for the purposes of the limitation period.[130]
[129]Further Amended Reply, dated 26 October 2020, filed in accordance with leave granted by Delany J pursuant to Orders made on 26 October 2020 (‘Further Amended Reply’), [3(c)].
[130]Amended Reply, [3(d)].

The misleading and deceptive conduct claim

The misleading or deceptive conduct claim alleged two separate representations, a little more than ten years apart; the ‘Representation’ and the ‘Further Representation’. The representation claims rely upon s 9 of the Fair Trading Act 1999 (Vic) as then in force, alternatively s 18 of the Australian Consumer Law (Vic) as applied by s 8 of the Australian Consumer Law and Fair Trading Act 2012 (Vic).[131]
[131]TFASC, [18].

‘The Representation’ is alleged to have been made in December 1999. It is alleged that at that time Anna Kasman represented to Susie Wong that:

(a) Susie Wong’s entitlement to 10% of the net profits generated by the Sushi Sushi Business going forward, would not be disturbed; and

(b) Anna Kasman would procure the corporate entities operating the Sushi Sushi Business in the future to make distributions of profit to Susie equal to 10% of the net profits generated by the Business, alternatively to reinvest 10% of the net profits for Susie’s benefit in the Sushi Sushi Business (‘Representation’).[132]

[132]Ibid, [5].

The Representation is pleaded as a representation as to a future matter,[133] and it is pleaded that Anna Kasman did not have reasonable grounds for the making of it, alternatively did not intend to fulfil the promises contained in it.[134]
[133]Ibid, [17(b)], said to be within the meaning of s 4 of the Fair Trading Act 1999 (Vic), as then in force, alternatively s 4 of the Australian Consumer Law (Vic) as applied by s 8 f the Australian Consumer Law and Fair Trading Act 2012 (Vic).
[134]Ibid, [18].

The ’Further Representation’ is alleged to have been made by Anna Kasman in about 2010. The TFASC alleges that at that time Anna Kasman represented to Susie Wong that ‘it would be better for her share of profits to be reinvested in the Business on her behalf and that the Plaintiff would implement that course of action’.[135]
[135]Ibid, [6A].

The misleading and deceptive conduct case alleges that Anna Kasman failed to fulfil the promises contained in the Representation and the Further Representation from about 2010 when the Further Representation was made.[136]
[136]Plaintiff’s Opening Submissions, [17].

Anna Kasman denied the statutory claims for misleading and deceptive conduct. She further pleaded that at all times Susie Wong was properly compensated for her efforts by reason of her employment.[137]
[137]Defence, [21(b)].

In her defence to the TFASC, Anna Kasman alleges that the statutory representation pleas require proof of specific statements made by Anna Kasman personally, and that it is not enough that Albert Lau made the statements attributed to him by Susie Wong at the mid-December 1999 alleged meeting.

The promissory estoppel claim

The promissory estoppel claim as originally pleaded was founded on the Representation. In the written opening it was submitted on behalf of Susie Wong that the Representation induced Susie Wong to believe that:

(a)she was entitled to a 10% beneficial interest in the Business;
(b)she was entitled to 10% of the accumulated profits of the Business on and following 1 January 2000;
(c)the corporate entities operating the Business would set aside 10% of the net profits generated by them in each financial year on and following 1 January 2000 for her benefit; and
(d)upon the sale of Anna Kasman and Albert Lau’s controlling equity interest in the Business, Susie Wong would be entitled to be paid out of the net proceeds of sale an amount equal to the value of the 10% beneficial interest in the business.[138]

[138]Plaintiff’s Opening Submissions, [20] (citations omitted).

Shortly prior to trial, the estoppel plea was expanded to include, ‘alternatively, the Further Representation’.[139] With the inclusion of the Amended Agreement in the course of Susie Wong’s evidence came a corresponding amendment to the estoppel case to delete the claimed entitlement to a 10% beneficial interest in the Sushi Sushi Business.
[139]TFASC, [20].

The promissory estoppel claim alleged that Susie Wong acting to her detriment in reliance upon the expectation of the Representation, alternatively, upon the expectation of the Further Representation, continued to be involved in the Business for almost 20 years without proper compensation for her efforts and desisted from pursuing other equity ventures.[140] It was alleged that Anna Kasman knew and intended that Susie Wong would rely on that expectation and that she induced or encouraged her to do so.[141]
[140]Ibid, [21].
[141]Ibid, [22].

Susie Wong alleged that in those circumstances it is unconscionable for Anna Kasman to sell her controlling interest in the Business without accounting to Susie Wong for a proportion of the net proceeds of sale equal to Susie Wong’s accumulated entitlement to 10% profit share which had not been previously paid to her, but which was to be reinvested on her behalf.[142]
[142]Ibid, [23].

Anna Kasman denied the promissory estoppel claim.

The constructive trust claim

The final alternative manner in which the case for Susie Wong was framed was as a constructive trust claim. The constructive trust claim asked the Court to find that it was the common intention of Susie Wong, Anna Kasman and Albert Lau in mid-December 1999 that in consideration of Susie Wong’s continued involvement in the management and expansion of the Business, that Susie Wong was entitled to 10% of the accumulated profits of the Business on and following 1 January 2000.[143]
[143]TFASC, [24].

Prior to the TFASC there was a further limb to the constructive trust plea. Namely, that it was the common intention of each of Susie Wong, Anna Kasman and Albert Lau, that upon the sale by Anna Kasman and/or Albert Lau of their equity interest in the Business, Susie Wong was entitled to be paid out of the net proceeds of sale an amount equal to the value of her 10% beneficial interest in the Business.[144]
[144]Further Amended Statement of Claim, dated 10 August 2020, [24(b)].

The allegation of a common intention that Susie Wong have a 10% beneficial interest in the Business was deleted in the TFASC, filed on the third day of the trial. With the deletion came the inclusion of a new aspect of the ‘common intention’ namely that what would be paid to Susie Wong on the sale of the Business was an amount equal to the value of her ‘accumulated entitlement to 10% profit share which had not previously been paid to her but which was to be reinvested on her behalf’.[145]
[145]TFASC, [24(b)].

The common intention constructive trust claim alleged that Susie Wong acted in reliance on the common intention to her detriment by involving herself in the management of the Sushi Sushi Business from 2000 and growing the business exponentially, instead of pursuing alternative equity ventures; and from 2010, by continuing to do so under the mistaken belief that Anna Kasman was reinvesting her profit share in the Business on her behalf.[146] It was said that in those circumstances, it was unconscionable for Anna Kasman to sell her controlling interest in the Sushi Sushi Business while failing to account to Susie Wong as required to give effect to the common intention.[147] Susie Wong claimed an amount representing 5% of the dividends (or distributions) paid to Anna Kasman and/or her related entities between 1 January 2010 and 1 January 2017; together with 10% of the dividends (or distributions) paid to Anna Kasman and/or her related entities following 1 January 2017 when the Family Court property settlement was implemented.
[146]Ibid, [25] and the particulars referring back to and incorporating paragraphs 6 and 8.
[147]Ibid, [26].

In support of this formulation of Susie Wong’s case it was submitted that to impose a constructive trust is appropriate where the Court finds that a ‘person could not in good conscience retain for himself a benefit, or the proceeds of a benefit, which he has appropriated to himself in breach of his contractual or other legal or equitable obligations to another.’[148]
[148]Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41, 125 (Per Deane J); Plaintiff’s Opening Submissions, [29].

In her defence to the pleading prior to the TFASC, and again in her defence following the amendment, Anna Kasman denied the existence of the common intention alleged and denied the other elements of the constructive trust claim alleged. She further pleaded that Susie Wong was guilty of delay in bringing her claims to the attention of Anna Kasman and thereby waived and released any such claims, alternatively, that it would be unjust and inequitable to grant the relief sought. Finally, that so far as the claim related to periods more than six years prior to the commencement of the proceeding, that the claim was alleged to be statute barred.

D. The Witnesses
Susie Wong

Susie Wong presented as a warm and friendly person who described her relationship with Anna Kasman, over 20 years, as ‘like family’.[149] It was her evidence that the relationship is currently ‘a little bit awkward’, but that ‘we still get along’.[150] She said that she regarded this case as a ‘big [mis]understanding [sic]’.[151]
[149]Witness Statement of Susie Wong, [66]; Transcript, 20 October 2020, 184-5.
[150]Transcript, 20 October 2020, 184-5.
[151]Ibid, 185.

When Ann Phung-Lan, from 1 November 2010, CFO of the Sushi Sushi Business, but before that a personal friend of Anna Kasman through their children, was introduced to Susie Wong in May 2006, it was at Anna Kasman’s house. Susie Wong was introduced as ‘auntie Susie’. Ms Phung-Lan gave evidence that Susie Wong was very close to both Albert Lau and Anna Kasman and was someone whom they both respected.[152]
[152]Transcript, 21 October 2020, 329.

It was Albert Lau’s evidence that in 2017 when he left the business, Susie Wong and Anna Kasman remained very close, including after the Family Court property settlement.[153] That evidence is consistent with evidence given by Ms Phung-Lan who observed the relationship between Susie Wong and Anna Kasman to be very close after the 2016 Family Court settlement, and up until November 2017 when she left the business.
[153]Ibid, 306.

During her evidence, particularly on the second day, Susie Wong became quite emotional when questioned about aspects of her relationship with Anna Kasman and when questioned about events towards the end of her involvement with the Business. That was particularly so when questioned about events that took place in 2017 and 2018 involving Mr Meneilly and Ms Elsley, both of whom came into the Business in late 2017.

Up until that time, Susie Wong continued to enjoy a close relationship with Albert Lau and Anna Kasman, including following their separation in 2011-2012. Susie Wong continued to be involved as the key person in the Business with responsibility for the leasing and property management of premises occupied by Sushi Sushi outlets and much of the dealings with franchisees. In late 2017 when Olivia Elsley was engaged, for the first time after 20 years, Susie Wong was required to report to another person outside her ‘family’, being a person whose areas of responsibility in the Business overlapped with those which, for the most part, had been Ms Wong’s domain. No doubt those developments and the ultimate sale of the business in 2019 all caused significant distress to Susie Wong.

By the second half of the 2018 calendar year, around the time of the November 2018 meetings with Ms Elsley, followed by the December meeting between Susie Wong and Anna Kasman, a meeting on neutral ground, at a café, rather than at Anna Kasman’s home, the personal relationship between the two women had clearly become very strained.

Albert Lau

Albert Lau made two witness statements, his primary witness statement dated 17 July 2019, and his 16 December 2019 reply statement. Both were amended shortly before he gave evidence.

Albert Lau sought to downplay his familiarity with the financial position of the Sushi Sushi Business, responding to questions about that topic with statements such as ‘Anna looks after … the books side, I do the operations side’.[154] I accept that Albert Lau was in charge of operations. However, I do not accept that Albert Lau did not have a keen appreciation of the financial position of the Business from time to time.
[154]Ibid, 308.

It is clear from Albert Lau’s evidence and from the evidence of Ms Phung-Lan, that Albert Lau attended the Sushi Sushi office on an irregular basis, both in the years leading up to, and after the 2016 Family Court settlement, until he left the business in 2017.[155] He attended the office to sign documents including leases, loan documents, tax returns and financial statements. On some occasions he signed cheques in favour of creditors of the business.
[155]Ibid, 326-327.

To the extent that Albert Lau’s evidence sought to convey concealment of the true financial position of the business by Anna Kasman, if it were relevant, I find that any such concealment only occurred after the breakdown in their marriage and in the period up to resolution of financial matters between them. Even during that time period, as was the evidence of Ms Phung-Lan, Albert Lau was provided with all of the financial statements.[156]
[156]Ibid, 327.

Albert Lau was a director of the companies and Anna Kasman was not. That was as the result of the deliberate strategy implemented by both of them following written advice from McLean Delmo in March 2004.[157] The structure described in the advice, and later implemented, saw Anna Kasman not appointed director of any of the companies and involved real property either being transferred to or acquired in the name of Anna Kasman, personally, or in the name of entities controlled by her. That is, to minimise the risk that should the then planned expansion of the Business, including by franchising, lead to adverse financial consequences, it would be Albert Lau who would be exposed as the director, not Anna Kasman, the owner of the real property and tangible assets.[158]
[157]Court Book, E64; Transcript, 21 October 2020, 315-316.
[158]Court Book, E64-75; Transcript, 21 October 2020, 317-318.

From 6 April 2004 until 19 January 2017 Albert Lau was a director of Sushi Sushi Warehouse Pty Ltd (as the Business was then named) and other companies involved in the conduct of the Business, and shares in the various companies were held in Anna Kasman’s name.[159] It will be observed in passing that the 2004 McLean Delmo advice made no mention of any interest being held by Susie Wong in either the Sushi Sushi Business or the Fish Pier business.
[159]Court Book, B107-9.

Tommy Tran

A witness statement under the name of Tommy Tran dated 17 July 2019 was filed but was revised on 21 October 2020. Mr Tran adopted the revised statement when called to give his evidence.

Mr Tran gave evidence that he did not read a copy of the 17 July 2019 witness statement before it was provided to the Court. He said that he read the 17 July 2019 statement only very recently and, upon doing so, initiated changes to it.[160] Those changes included the correction of errors, and the addition of text. By way of example, Mr Tran deleted an incorrect reference in the 17 July 2019 statement to his having returned to live in Vietnam between 1983 and 1987 when in fact he lived permanently in Australia after migrating from Vietnam in 1979.
[160]Transcript, 22 October 2020, 373.

Mr Tran began working for Fish Pier at its David Jones and Eastland stores for about five years and then, in about 1998 began working at the Sushi Sushi store at Box Hill Central.[161] Mr Tran was employed at Chadstone Sushi Sushi when that store opened in 1999.
[161]Witness Statement of Tommy Tran, [3].

His 17 July 2019 statement included proposed evidence that Albert Lau would ‘in jest’ say to Susie Wong that she had to work harder because she had a share in the business. The words ‘in jest’ were deleted by Mr Tran when he reviewed and revised his witness statement.

When he was cross-examined it was clear that Mr Tran, who said that he spoke Vietnamese, Vietnamese Chinese and Cantonese and was ‘90% with my English’,[162] did not understand what was meant by the words ‘in jest’ that had been included by those involved in drafting his 17 July 2019 statement. However, I accept that his original statement was, in substance, accurate when it referred to statements being made ‘in jest’, even though the language was not his.
[162]Transcript, 22 October 2020, 370.

Ann Phung-Lan

Ms Phung-Lan joined the Business on 1 November 2010 as Chief Financial Officer (CFO). She remained in that position until 9 November 2017.[163] Before joining the business Ms Phung-Lan, who holds a Bachelor of Business (majoring in accounting and tax) worked full-time at the National Australia Bank as a transition manager, specialising in tax and accounting. Her involvement in the Business came about after she and Anna Kasman got to know each other socially through their children.[164]
[163]Witness Statement of Ann Phung-Lan, [14]-[15].
[164]Witness Statement of Ann Phung-Lan, [2]-[4].

I accept Anna Kasman’s evidence that it was she who employed Ms Phung-Lan in 2010.

Ms Phung-Lan is now employed by Albert Lau in the Fish Pier business.[165] That employment came about when she contacted Albert Lau at the suggestion of Anna Kasman, following a trip by the two women and their children to Sydney in 2017 after Ms Phung-Lan ended her employment at Sushi Sushi.[166]
[165]Transcript, 21 October 2020, 326.
[166]Ibid, 327-328.

Ms Phung-Lan gave evidence that she was told by Anna Kasman to lock the office and to put financial documents in a sealed envelope and keep them confidential,[167] and that she was specifically told not to show Albert Lau or Susie Wong those documents.[168] I consider her recollection to be accurate when she said that Anna Kasman told her to keep the profit and loss accounts secret from Albert Lau from 2013.[169] That was after Albert Lau and Anna Kasman separated and before November 2016 when they arrived at a formal property settlement, than at an earlier time.[170]
[167]Witness Statement of Ann Phung-Lan, [28(a)], [29]-[30]; Transcript, 21 October 2020, 335.
[168]Witness Statement of Ann Phung-Lan, [28(a)], [29].
[169]Ibid, [29]; Transcript, 21 October 2020, 337, 342.
[170]Court Book, B340, Refer to Family Court consent orders dated 24 November 2016.

Ms Phung-Lan said that such an instructional statement was made by Anna Kasman.[171] In cross-examination Anna Kasman denied giving such an instruction. Ms Phung-Lan said that she told Albert Lau that Anna Kasman had instructed her to conceal the profit and loss so that he could not see it. She said that Albert Lau responded by saying he did not care.[172] When cross-examined, Ms Phung-Lan, who acted as a go-between for the family law settlement between Albert Lau and Anna Kasman, said that she had to tell Albert Lau about that instruction because she had to show him the financial statements for the matrimonial settlement.[173]
[171]Transcript, 21 October 2020, 335-336.
[172]Ibid, 336.
[173]Ibid, 336-337.

Katherine Gaylard

Ms Gaylard originally dealt with Susie Wong from opposite sides of retail leasing transactions. Her initial dealings with Susie began after they met in approximately 2005. It was her evidence that they regularly dealt with one another between 2006 or 2007 and 2019.[174] She said that so far as she was aware, Susie Wong was an ‘owner’ of the business.
[174]Plaintiff, Revised Witness Statement of Katherine Gaylard, dated 16 October 2020, [4], [6].

Other witnesses relied upon by Susie Wong
Danny Fung

Danny Fung is a sushi chef who worked at the Sushi Sushi store at Box Hill from ‘day one’ and managed that store for a few years until about 2001.[175] In 2001 he moved to The Glen Sushi Sushi store in Glen Waverley which he managed, and in about 2003 or 2004 moved into the role of operations manager within the Sushi Sushi Business.[176] Mr Fung continued in that role until 2015. Between 2015 and mid-2017 he was employed by a Sushi Sushi franchisee.[177]
[175]Plaintiff, Witness Statement of Danny Wende Fung, dated 17 July 2019, [7].
[176]Ibid, [8], [10].
[177]Ibid, [11]–[13].

Since October/November 2018, Mr Fung has been working for Albert Lau as a sushi chef at Albert Lau’s Sushi Pier store in Camberwell.[178]
[178]Ibid, [14].

Mr Fung was not cross-examined on his witness statement.

It was his evidence that every year whilst employed in the Business, Susie Wong and Anna Kasman gave employees, including him, red pockets with ‘lucky money’.[179]
[179]Ibid, [12].

Nicolle Austin

Nicolle Austin is a person very experienced in the management of property. Between 1999 and 2008 she was employed by Centro Properties and from 2008 until May 2016 she worked for the owner of all ‘Westfield’ branded shopping centres as a regional leasing manager. She gave evidence of negotiation of many commercial deals concerning the Sushi Sushi Business and the Fish Pier business with Susie Wong between 2001 and 2015.[180] When cross-examined, she agreed that leases were negotiated with her and Susie Wong but that, once negotiated, it was Albert Lau who signed.[181]
[180]Plaintiff, Witness Statement of Nicolle Louisa Austin, dated 7 August 2019 (‘Witness Statement of Nicolle Austin’), [10].
[181]Transcript, 21 October 2020, 355.

Mun Soon

Mun Soon is a retired architect. He was not cross-examined on his witness statement. Between 1999 and mid-2010, he and his interior design team at MGS Architects were involved in the provision of architectural services and interior design services for over 50 Sushi Sushi stores in Victoria and interstate.[182] I accept his evidence that Susie Wong was the person who would contact him and the person with whom he primarily dealt.[183] Nothing in Mun Soon’s evidence bears on the critical issues in contest in this case. It is accepted by Anna Kasman that Susie Wong had responsibility for leasing and property matters over many years.
[182]Plaintiff, Witness Statement of Mun Soon, dated 17 July 2019, [23].
[183]Ibid, [25].

Anna Kasman

Anna Kasman presented as a very competent, calculating and somewhat ruthless person. I accept the truth of much of Anna Kasman’s written witness statement which she adopted with minor amendments when giving evidence.[184] However, I do not accept the truth of many of the answers that she gave in cross-examination. That includes a large number of answers which contradicted her own witness statement.
[184]Transcript, 22 October 2020, 392.

Anna Kasman was a most unsatisfactory witness. Her responses to questions put in cross-examination were characterised by requesting that the cross-examiner provide ‘the factual information’ and ‘you need to be a bit more specific’.[185] She put up an impervious façade when responding to questions and maintained that façade throughout the course of her cross-examination.
[185]See for example, Transcript, 22 October 2020, 399, 446.

It was put to Anna Kasman in cross-examination that she was ‘financially astute’. Her response, that she did not know and that was a matter for others, was evasive and non-responsive.[186] I do not accept for one moment that Anna Kasman is anything other than extremely financially astute and ‘business savvy’. She studied business computing and after graduating in 1992, worked for a bank in Indonesia for five years through to 1997 before resigning from that position.[187] In contrast to her background and qualifications, Albert Lau commenced training as a chef.[188] She had the required skills to manage the finances of the Business, that was her role, and she performed that role in a very competent manner.
[186]Ibid, 430.
[187]Witness Statement of Anna Kasman, [5]-[6], [12].
[188]Witness Statement of Albert Lau, [3]-[4].

When asked about her specific role in the Business in 2003, Anna Kasman said that she was not ‘intimately involved’ in the business.[189] She repeatedly denied being ‘intimately involved’, her language, in the financial management of the business over many years.[190] It was her evidence that in 2015 she was not ‘intimately involved’.[191] The evidence given in cross-examination that she was not ‘intimately involved’ in the Business before 2017,[192] is directly contradicted by observations found within the 2004 report of the franchise advisor.[193] That report described the plan for the future of the Sushi Sushi Business to be one where ‘Anna takes a more passive role’.[194] Her response when taken to that paragraph was that she did not know why the consultant would say this.[195]
[189]Transcript, 22 October 2020, 414.
[190]Ibid, 414-415.
[191]Ibid, 415.
[192]Ibid, 414.
[193]Court Book, B203-269.
[194]Ibid, B222.
[195]Transcript, 22 October 2020, 435.

Anna Kasman’s evidence as to a lack of involvement in the financial affairs of the business is directly contradicted by her affidavit affirmed 31 August 2016 in a 2016 proceeding in the Federal Circuit Court against Carroll Resources.[196] In that affidavit, Anna Kasman described herself as the ’controlling mind’ of Carroll Resources Pty Ltd,[197] a company of which she was not and never had been a director.[198] Carroll Resources is the company within the Sushi Sushi Business group of companies that employed staff. The evidence given on affidavit in 2016 was truthful evidence and was an accurate description of her role in company that employed the staff for the whole Business.
[196]Simpson v Carroll Resources (2016) FCCA 2430.
[197]Ibid, [42].
[198]Court Book, E274.

A series of propositions were put to Mr Meneilly in cross-examination concerning his observations of Anna Kasman, based on the information he gathered in August 2017. He agreed with the cross-examiner that Anna Kasman had a firm control of the business, that she was intimately involved in the business and particularly involved in the financial side of the business. He agreed that she had strong financial literacy skills and that she was adept with setting up complex company and trust structures. From his observations she had been intimately involved in the Sushi Sushi Business before 2017 and ‘nothing got done’ without her approval. Mr Meneilly agreed that Anna Kasman wanted things done her way, she was very strong-minded and had firm opinions on the Business. He also agreed that she was very secretive.[199]
[199]Transcript, 26 October 2020, 504-5.

I do not accept Anna Kasman’s evidence concerning her lack of involvement in the financial management of the Business as truthful evidence. I do not accept that in the period from 2000 to 2009, at least from around 2004, that she did not know what the takings of the Business were.[200] I accept that more than ten years later she could not now give a ‘definite answer’,[201] but I do not accept that at the time, between 2004 and 2009, she was anything but across the details of the finances of the Business.
[200]Ibid, 422, 430-3.
[201]Ibid, 432.

Anna Kasman was clearly across the detail of the property portfolio that she and Albert Lau acquired over the course of their marriage. Taken at 2016 value, those parts of the property portfolio about which she was cross-examined, all being properties acquired between 2004 and 2009, had a combined value of $52 million gross.[202] Her evidence when cross-examined was that the companies that held those properties, with the exception of the Grosvenor Court Toorak property registered in her name, were ‘all controlled’ by Albert Lau.[203] That evidence, seeking to portray Albert Lau as ’in control’ was false. I accept her evidence that she and Albert Lau made the decision to buy those properties,[204] but I reject her evidence that she did not ‘look after’ the financial side of the business.[205]
[202]Ibid, 447-452.
[203]Ibid, 451.
[204]Ibid, 453.
[205]Ibid.

It is because Anna Kasman looked after and was in control of the financial side of the Business that she instructed Ann Phung-Lan concerning financial matters, including giving instructions not to provide financial information with which she was familiar to Albert Lau. I reject Anna Kasman’s denial that she gave such instructions to Ms Phung-Lan.[206]
[206]Witness Statement of Anna Kasman, [102], responding to Witness Statement of Ann Phung-Lan, [28(a)], [29]; Transcript, 22 October 2020, 424-425.

I reject Anna Kasman’s attempt to portray herself as a person not skilled in business matters until January 2017 when she took over from Albert Lau.[207] According to her oral evidence, up until that point in time Albert Lau was in charge of the business and all decisions were made by him. Anna Kasman gave oral evidence that she did not make management decisions in 2004, and that she only started to make management decisions when Albert Lau left the Business in 2017.[208] On a number of occasions throughout her cross-examination Anna Kasman gave evidence to the effect that until 2017 when Albert Lau ceased to be involved in the Sushi Sushi Business she did not manage the financial affairs of any company in the group.[209] Again, evidence to this effect was patently false.
[207]Transcript, 22 October 2020, 406.
[208]Transcript, 22 October 2020, 467.
[209]Ibid.

Anna Kasman said on a number of occasions that ‘Albert was the ultimate decision maker’,[210] and that from 2010 when Ms Phung–Lan joined the Business until 2017 she, Anna Kasman, was ‘not involved’ and was not the person in control of the finances.[211] She gave oral evidence that she and Albert were both involved in the decision to make Mr Grixti redundant and to employ Mr Meadows, both managers of the business.[212]
[210]Ibid, see for example, 414-415, 426.
[211]Ibid, 422, 423, 426.
[212]Ibid, 426.

Anna Kasman’s oral evidence is contradicted in a number of respects by her own witness statement. Specific examples from her witness statement include, first, the statement that by 2004 Anna Kasman had ‘become more involved in the Business’ and that she had ‘started to think about whether we could have Sushi Sushi franchisees and what other structures the business might need.’[213] Second, that in about 2005 ‘I employed Paul Grixti (whose)…role was general manager of the business…’.[214] Third, the statement that in November 2000 Ann Phung-Lan joined the business as Chief Financial Officer following a request by Anna Kasman that Ann Phung Lan ‘work at our business’.[215] Fourth, the paragraph in Anna Kasman’s witness statement that referred to a request by Susie Wong made to her in 2012 for a higher salary. The witness statement continued: ‘I told her I would approve an increase and that she will be able to reimburse most of her expenses through the company…’.[216]
[213]Witness Statement of Anna Kasman, [67]; Cf. Anna Kasman’s evidence at trial, refer to Transcript, 22 October 2020, 433.
[214]Witness Statement of Anna Kasman, [77]; Cf. Transcript, 22 October 2020, 414.
[215]Witness Statement of Anna Kasman, [92]; Cf. Transcript, 22 October 2020, 482.
[216]Witness statement of Anna Kasman, [90]; Cf. Transcript, 22 October 2020, 480-481.

It is telling in relation to Susie Wong’s role in the Business, but also reflective of the recognition by Albert Lau and Anna Kasman of her valuable contribution to it, that After 2010 Susie Wong’s salary increased, and increased very substantially. That is in contrast to the position of all other senior managers over that same time period. Ms Phung-Lan, the CFO, gave evidence that she could not recall any other senior managers’ salary increasing, nor did her own salary increase in the seven years up until November 2017 during that time.[326] The fact Susie Wong’s salary regularly increased over those years as recorded in the chronology set out above, when other senior staff received no such increases, is not consistent with an agreement to reinvest a 10% profit share that she alleges was made by her with Anna Kasman in 2010.
[326]Transcript, 21 October 2020, 334.

I accept Anna Kasman’s evidence that in 2010 and also in 2012 Susie Wong requested salary increases.[327] The making of those requests and the salary increases that occurred are as consistent with that evidence as they are inconsistent with the asserted claim to 10% of profit.
[327]See paragraphs 61 and 154-5 above.

I reject Susie Wong’s evidence that in 2010 Anna Kasman told Susie Wong that she would be heavily taxed if profits were distributed to her and that it would be ‘better for all of us’ to reinvest the profits in the Business and that Anna would sort it all out.[328]
[328]Witness Statement of Susie Wong, [88].

Mr Fung gave evidence that both Susie Wong and Anna Kasman gave employees ‘red pockets’. It was his evidence, which I accept, that such gifts are customarily given by an employer to an employee at Chinese New Year time. Mr Fung said that the fact that Susie Wong was involved in handing out such gifts, indicated to him that Susie Wong ‘had a share in the Sushi Sushi business’. I do not agree. The very close personal relationship between Susie Wong and Anna Kasman and Susie Wong’s role as an important and valued person in the Business provides an explanation for Susie Wong’s involvement in such gift giving.

In any case, whatever the giving of gifts by Susie Wong might have signified to Mr Fung, it did not signify to him that she was a person entitled to a 10% share of net profit in the business. As the difficulty Susie Wong encountered with pleading her case makes clear, that is not the same as being an owner of the Business.

Events from 2017
August 2017: the Scott Meneilly Interview

The asserted claim of a 1999 contract in the form of the Amended Agreement and the other alternative claims made by Susie Wong also derive no support from conversations between Susie Wong and Scott Meneilly in 2017, and Susie Wong and Olivia Elsley in 2018.

The contemporaneous note made by Scott Meneilly of his interview with Susie Wong in August 2017 reads, ‘founder, not an owner’ (emphasis added).[329]
[329]Court Book, B383.

In his witness statement, Mr Meneilly set out the following exchange he said he recalled having with Susie Wong:

Mr Meneilly: ’…So you are an owner of the business?’
Susie Wong: ‘No, not an owner’.
Mr Meneilly: ‘So were you one of the founders?’
Susie Wong: ‘Something like that’.
Mr Meneilly: ’Are you a shareholder?’
Susie Wong: ’No, just an employee’.[330]

[330]Witness Statement of Scott Meneilly, [26].

When Mr Meneilly was cross-examined about the interview, one in a series that he conducted with employees of the business, Mr Meneilly confirmed that the interview with Susie Wong lasted for approximately 15 minutes. He agreed that it was a free-flowing discussion and said that Susie Wong was forthcoming with everything he asked her.[331] When asked if she was a ‘founder’ of the business, initially, Susie Wong did not say yes or no, she said ‘something like that’.[332] His contemporaneous note ‘founder – not an owner’ reflected the thrust of their conversation.[333]
[331]Transcript, 26 October 2020, 499.
[332]Ibid, 500.
[333]Ibid, 501.

Mr Meneilly gave evidence that in late 2017 he had two conversations with Anna Kasman during which he asked Anna Kasman if Susie Wong was an owner or a shareholder.[334] He did so on the second occasion because he had heard through colleagues that an ‘owner’ of Sushi Sushi was in Sydney, and was mentoring a group opening some food stores. It was Mr Meneilly’s evidence that he found all of this ’incredibly confusing’, so he went back and asked for clarity as to whether Susie Wong was an owner or a shareholder, to which Anna Kasman replied ‘no’.[335]
[334]Witness Statement of Scott Meneilly, [38].
[335]Transcript, 26 October 2020, 502.

As it happened, due to an oversight, Susie Wong did not adopt her reply witness statement at the start of her evidence. On the morning of the second day, she adopted her reply witness statement. There was no amendment made to that part of her statement that said when interviewed by Mr Meneilly, she had not been asked by him whether she was an owner of the business.

There were material inconsistencies between this aspect of her witness statement in reply and detailed evidence given by Susie Wong on the first day of her cross-examination concerning the interview by Mr Meneilly.

In response to a series of questions on that first day, Susie Wong said variously that she told Mr Meneilly that she was a ‘co-founder’, ‘just an employee’ and that she was a ‘part owner and business partner’.[336] Cross-examined a short time after adopting her reply statement on the second day, Susie Wong confirmed that she had carefully read her reply statement that morning, before adopting its contents.[337] When pressed about these matters she said Mr Meneilly had ‘possibly’ asked her if she was an owner.[338]
[336]Ibid, 20 October 2020, 242-5.
[337]Ibid, 21 October 2020, 260.
[338]Ibid, 265-6.

When cross-examined about the 2017 conversation with Mr Meneilly, Susie Wong sought to take refuge in the passage of time. She said that the conversation was ‘jumping here and there’, and advanced that as a reason for her inability to be precise or to recall details of what was said.[339] Her evidence concerning the 1997 interview by Mr Meneilly was particularly unconvincing. It casts a shadow over other aspects of her evidence.
[339]Ibid, 21 October 2020, 260-6.

November 2018: meetings with Olivia Elsley

The 16 November 2018 meeting between Susie Wong and Olivia Elsley was an emotional meeting and Susie Wong became upset. In notes of that meeting prepared by Olivia Elsley and forwarded on 18 December 2020 to Anna Kasman and Mr Meneilly, Ms Elsley recorded Susie Wong saying to her, amongst other things, that she ‘should have been an owner’ and ’I had a verbal deal and never got it in writing’.[340]
[340]Court Book, B407-421.

Ms Elsley gave evidence of a clearly distressed and upset Susie Wong telling her on 16 November 2018 that she felt trapped, that everything was ‘crashing down’ and that she had told everyone she was an owner.[341]
[341]Witness Statement of Olivia Elsley, [24].

It was not only Susie Wong who portrayed herself as an owner of the business. I accept Ms Gaylard’s evidence that in May 2014 when Ms Gaylard was in New York for a conference and for the first time was introduced by Susie Wong to Anna Kasman, that Anna Kasman introduced herself as Susie Wong’s ‘business partner’.[342] I also accept the evidence given by Ms Gaylard in cross-examination that she recalled Anna Kasman introducing Susie Wong as an ‘owner’ in the course of meetings with real estate agents during that same New York trip.
[342]Ibid, [7]; Transcript, 22 October 2020, 388.

On that same trip when Susie Wong was seeking to locate suitable premises, she met with a New York real estate agent, Ms Podell. The online article of 19 May 2014 reporting upon the plans of the business to start up in the United States attributed comments to Ms Podell describing Susie Wong as the ‘leasing agent’ for the business.[343] An article in The Age newspaper described Susie Wong as a ‘spokeswoman’ for the business, speaking on behalf of the ‘owner’.[344]
[343]Court Book, D469; Transcript, 21 October 2020, 283-4.
[344]Court Book, E82-4; Transcript, 21 October 2020, 284-6.

I have no doubt that on occasions, when it suited her to do so, Anna Kasman represented Susie Wong as an ‘owner’ of the Business. However, that misrepresentation of her role does not change the character of Susie Wong’s interest in the business. That is, as employee only, and not as owner or person entitled to a 10% profit share.

I accept Ms Elsley’s evidence that a very distressed Susie Wong told her on 16 November 2018, ‘I’ve been living a lie’.[345] I do not accept Susie Wong’s evidence that she did not say those things.[346] I accept that, unfortunately, what Susie Wong said to Ms Elsley on 16 November 2018 was a truthful reflection of the position in which Susie Wong found herself. She had been portraying herself as an owner of the Sushi Sushi Business to friends, business colleagues and others. That was a lie. It was a lie which had been propounded by statements made by Anna Kasman to others such as Ms Gaylard during the 2014 visit to New York. With the sale of the Business to which she had contributed so much over 20 years, that lie was to be exposed.
[345]Witness Statement of Olivia Elsley, [24].
[346]Reply Witness Statement of Susie Wong, [27]-[33].

The Information Memorandum prepared in 2018 for the sale of the Sushi Sushi Business described Susie Wong as part of the executive management team, Head of Property since 1998.[347] Susie Wong agreed that description was accurate,[348] and it was.
[347]Court Book, C383.
[348]Transcript, 21 October 2020, 286-7.

Ms Austin gave evidence that Susie Wong developed a reputation with leasing personnel such as herself as being both the key contact person and the owner–operator of both businesses. However, Ms Austin also gave evidence concerning Albert Lau signing leases and her being aware of the two different roles performed by Susie Wong and Albert Lau. However Ms Austin understood Susie Wong’s role in the Business, it was not that of an ‘owner’ of the business.

There was evidence which I accept of other indicia, consistent with the role performed by Susie Wong as that of a senior employee and not of an owner of the business. By way of example, Ann Phung-Lan paid personal credit cards, reimbursed expenses and collected rent for properties owned personally by Albert Lau and Anna Kasman. Her role included managing their personal assets.[349] She did not perform that role for Susie Wong. She did attend to reimbursement of business expenses for Susie Wong, but in doing so, she acted in the same way she acted in relation to other employees.[350] The same witness gave evidence that when it came to Susie Wong retaining her own office during a time of restructure, this came about as the result of a directive from Anna Kasman, not from Susie Wong, who did not ask her about that.[351]
[349]Witness Statement of Ann Phung-Lan, [16]; Transcript, 21 October 2020, 332-3.
[350]Transcript, 21 October 2020, 333.
[351]Witness Statement of Ann Phung-Lan, [23]; Transcript, 21 October 2020, 333-4.

December 2018: meetings between Susie Wong and Anna Kasman

I accept Anna Kasman’s evidence that when she met with Susie Wong on 20 December 2018, after Olivia Elsley had interviewed Susie Wong on 16 November 2018, there was no discussion of any claim by Susie Wong to have a 10% interest in the Business or to be an owner of the Business, or to have an entitlement to 10% of the profits of the Business.

I reject Susie Wong’s evidence that in 2016 and again in 2017, she made requests of Anna Kasman to be paid out.[352]
[352]See paragraphs 76 and 80 above.

I accept as truthful evidence the evidence of Anna Kasman that she did not raise with Susie Wong the entry in Ms Elsley’s file note to the effect that Susie Wong had told her that she was an owner of the Business but had nothing in writing to confirm it.[353] I accept as truthful evidence, Anna Kasman’s evidence that she did not mention these things when she met with Susie Wong in December 2018, because she did not want Susie Wong to ‘lose face’.[354]
[353]Court Book, B409; Transcript, 22 October 2020, 475-6.
[354]Ibid, 475-6, 484.

H. The contract claim: consideration

The contract claim, the Amended Agreement introduced into the TFASC part way through the cross-examination of Susie Wong, fails. It fails because, for the reasons previously set out, I do not accept that a tripartite agreement was reached at a meeting held between Susie Wong, Albert Lau and Anna Kasman in December 1999 at the Chadstone Sushi Sushi store in the presence of Tommy Tran.

The contract case for Susie Wong depends upon the acceptance of Susie Wong’s evidence about the existence of that meeting at which she, Albert Lau and Anna Kasman were present and Tommy Tran was working behind the counter. It depends upon acceptance by the Court of her evidence both as to the accuracy of what was said, and as to the asserted fact that Anna Kasman heard what was said by Albert Lau and acquiesced in what he said. Susie Wong is the only witness who gives evidence about that conversation. There is no contemporaneous evidence, documentary or otherwise, or context, that corroborates that such a meeting ever occurred. For the reasons previously discussed, I am not persuaded that 20 years ago, such a meeting took place or that such things were said by Albert Lau. Much less am I persuaded that if such things were said, they were said in a language that Anna Kasman understood.

Susie Wong’s account of the statement that she attributed to Albert Lau as having been made at the alleged December 1999 meeting is not corroborated by any of the three other persons who she identified as being present at that meeting. Her evidence of what occurred more than 20 years ago is not supported by any contemporaneous note or memorandum. It is not supported by any later note, text message or email passing between her and Anna Kasman who from at least 2002 was a very close friend. Susie Wong agreed in cross-examination that there were no written records that she could produce indicating that she was concerned about her profit entitlement.[355] That is so in circumstances where, based on her own evidence, she was a regular user of email and text messages, not just with Anna Kasman, but also with her other friends.
[355]Transcript, 20 October 2020, 181.

The evidence relied upon by Susie Wong does not provide any context which supports a finding that such a meeting took place in December 1999. The circumstances of Anna Kasman having only recently given birth to her first child do not support a finding that such a meeting took place. That Albert Lau would give to his first wife a 10% property entitlement in the Sushi Sushi Business, a short time after marrying his second wife, is improbable.

Even if the Court were to find that such a meeting took place and that the statement that Susie Wong contributes to Albert Lau was made, that is not sufficient to establish a binding tripartite contract. As I have found, if there was any such conversation it is more likely than not that it would have taken place in the Fuzhou dialect. That is not a dialect that at that time Anna Kasman understood. There is no evidence of any acquiescence by Anna Kasman. No evidence that she said anything in the supposed meeting. That is, with the exception of some conclusory evidence by Susie Wong, that Anna Kasman agreed to perform various roles thereafter in relation to the business and that Susie Wong’s 10% interest in the business would remain unchanged. For the reasons earlier given, I reject that evidence.

As earlier discussed, a key problem with that conclusory evidence is that Susie Wong did not have any pre-existing entitlement to a 10% interest in the business, no matter how ‘the business’ is described or defined. She did not obtain a 10% interest in the Fish Pier business in 1997. If any conversation occurred between Susie Wong and Albert Lau in 1998 at Box Hill about a 10% interest in the business, it is clear from their conflicting evidence that they had different understandings of what ‘the business’ comprised. That same clash of views about what constituted ‘the business’ in which Susie Wong asserted a 10% entitlement flows through to Susie Wong’s evidence concerning the 1999 alleged meeting.

Although I have been very critical of the oral evidence of Anna Kasman, those criticisms do not impact upon whether or not Susie Wong has discharged the onus that she bears of proving the Amended Agreement for which she contends.

The contract claim in addition fails for four further separate and independent reasons. First, because if Albert Lau made the statement attributed to him by Susie Wong, because of the conflict between the evidence of those witnesses about what was understood by each of them as comprising ‘the business’ in which a 10% profit share was to be held, any supposed agreement is so uncertain as to the subject matter as to not constitute an agreement at all. The criticisms made on behalf of Anna Kasman about the four changes in Susie Wong’s pleaded case and the changing evidence in support of it and the uncertainty that permeates the case as a result are legitimate and must be accepted. Second, there is no evidence of any agreement or assent on the part of Anna Kasman to Susie Wong having a 10% profit share in the business. It cannot be said that viewing the evidence as a whole and objectively, from the point of view of reasonable persons on both sides of the transaction, that the dealings establish a concluded bargain.[356] Third, there is no evidence of one of the essential elements of the asserted agreement, namely, that profits be reinvested. Fourth, even if there was the tripartite agreement alleged, it must have come to an end with the Family Court property settlement.
[356]Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32, 81-3, referring to Meates v Attorney-General [1983] N.Z.L.R. 308.

I. Misleading and deceptive conduct claim: consideration

To succeed in this claim it was necessary that Susie Wong persuade the Court both that ‘the Representation’ alleged to have been made at the December 1999 meeting was made by Anna Kasman and that the ‘Further Representation’ alleged to have been made by her in 2010 was also made.

For the reasons previously outlined, I do not accept that the Representation as alleged was made in December 1999. I do not accept that if Albert Lau made a statement to the effect of the Representation, that Anna Kasman herself made or was in any way a party to that Representation which, as I have found, if made, was made in a language with which she was not familiar. The Representation alleged includes a representation that Anna Kasman would procure the corporate entities operating the Business in the future to reinvest 10% of the net profits generated by the Business for Susie Wong’s benefit. There is simply no evidence that reinvestment was even discussed at the alleged meeting. The Representation pleaded is not proved to have been made.

For the reasons previously discussed, I also do not accept Susie Wong’s evidence that the Further Representation was made in 2010.[357]
[357]See discussion from paragraph 229ff.

In those circumstances, the misleading and deceptive conduct claim contrary to statute is dismissed.

J: The promissory estoppel claim: consideration

The estoppel claim is founded on the Representation, alternatively, the Further Representation. As I have found that neither representation was made, for that reason the estoppel claim fails.

It is a separate element of the estoppel plea that Susie Wong acted in reliance on the expectation that she had an entitlement to a 10% profit share and that acting in reliance on that expectation to her detriment she continued to be involved in the management and expansion of the business for almost 20 years without proper compensation for her efforts and that she desisted from pursuing other equity ventures.

As the discussion of the salary and cash paid to Susie Wong in the period from 2001 – 2010, and the salaries paid to her by the business after that time demonstrate,[358] Susie Wong was well, but appropriately paid for the very valuable contribution that she made to the Business. I do not accept, in light of the remuneration that she received, that she acted to her detriment in the manner alleged. There was no evidence that she desisted from pursuing other equity ventures. I accept the contention on behalf of Anna Kasman in her defence that Susie Wong was appropriately paid for her work.
[358]See paragraphs 234-244 above.

For those reasons, the estoppel claim is dismissed.

K: The constructive trust claim: consideration

At the heart of the constructive trust claim is a an alleged common intention on the part of Susie Wong, Albert Lau and Anna Kasman in 1999 and thereafter that in consideration of Susie Wong’s continued involvement in the management and expansion of the Business she was entitled to 10% of the accumulated profits of the Business on and following 1 January 2001.

The evidence simply fails to establish any such common intention.

In order to prove a common intention that might found a constructive trust, it was necessary for Susie Wong to prove that in December 1999 Susie Wong, Albert Lau and Anna Kasman shared a common understanding that Susie Wong would have an accumulated entitlement to a 10% profit share and that such profit share was to be reinvested in the Business on her behalf. For the reasons discussed in relation to the contract claim and separately identified in relation to evidence given concerning the December 1999 meeting, there was no such common intention.

The constructive trust claim is dismissed.

L. Disposition

The proceeding is dismissed.

Subject to any submissions that either party may wish to make in relation to costs, I will order that the plaintiff pay the defendant’s costs, including reserved costs on a standard basis.

If either party wishes to contend for a costs order other than as proposed, that party should file and serve any affidavit material to be relied upon, together with short submissions in support of the order for which that party contends no later than Friday, 22 January 2021.

[2020] VSC 869

18 December 2020