Wu v Ling - [2017] HCATrans 209

[2017] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S143 of 2017

B e t w e e n -
YAN WU
Applicant
and
ALBERT LING
Respondent
Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 OCTOBER 2017, AT 11.02 AM

MR B.A.M. CONNELL: I appear for the applicant, if your Honours please. (instructed by PMF Legal)

MR W.G. MUDDLE, SC: May it please the Court, I appear with MS E.M. PEDEN and MS J. MEE for the respondent. (instructed by Solomon Tudehope Solicitors)

GAGELER J: Mr McConnell - Mr Connell, I am sorry.

MR CONNELL: My family is Irish, your Honour. Your Honour, this is a most unusual case in that the Court of Appeal’s decision – one would think it was hearing a different case from the one that was heard by the primary judge. The primary judge made extremely strong findings, both on the question of special disability, finding not merely that the applicant was misled but finding that she was absolutely incapable of managing her affairs. The specific finding that ‑ ‑ ‑

KEANE J: Where you do find that she was absolutely incapable of managing her affairs?

MR CONNELL: At application book 16 to 17, paragraph 65:

unable to see –

At paragraph 101, application book 23:

incapable of protecting her own best interests; namely, her complete inability –

in a “debilitated position”. At paragraph 106, application book 24:

incapable of protecting her own financial interests –

and, one might add, paragraph 27 at application book 10:

It took quite some time for the defendant to come to her senses –

There was also the reference at paragraph 65, application book 16 to 17, as to her state of mind with things:

spiralling out of control –

and her:

thoroughly unable to see what would have been apparent to a fully informed, objective onlooker –

Those findings are only emphasised when one also comes to the very firm findings that the trial judge made as to the respondent’s knowledge of that. At application book 23, paragraphs 100, 101 – on the second loan the respondent:

took advantage of the debilitated position of the –

applicant after he had a chance to reflect on the whole situation.

KEANE J: Yet at page 16, paragraph 64, the primary judge said:

There can be no doubt that Ms Wu is a highly experienced businesswoman who has found significant success in the aged care industry. She has also built up a property portfolio that is impressive indeed. I assessed her in the witness box as having a forceful and determined character. When she entered into the loans with Mr Ling, she was by no means naive with regard to financial matters; quite the contrary.
However, I do consider that, somewhat surprisingly, this experienced businesswoman had been thoroughly duped by a fraudster.

MR CONNELL: Exactly. Your…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] HCATrans 209
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *Wu v Ling*. The dispute concerned the interpretation of a settlement agreement entered into by the parties, which had been made an order of the Federal Circuit and Family Court of Australia. The appellant, Ms Wu, sought to enforce certain terms of the settlement agreement, while the respondent, Mr Ling, contended that those terms were not binding.

The central legal issue before the High Court was whether the settlement agreement, as incorporated into a court order, was capable of being set aside or varied on the grounds of alleged misrepresentation or non-disclosure by Mr Ling. Specifically, the court had to determine the legal effect of a court order that incorporates a settlement agreement, and the circumstances under which such an order might be susceptible to challenge.

Gageler and Keane JJ held that a court order made by consent, which incorporates a settlement agreement, is a final and binding order of the court. Such an order can only be set aside or varied in limited circumstances, such as where there has been a fundamental mistake of fact or law, or where the order was obtained by fraud or duress. The court found that the allegations of misrepresentation and non-disclosure raised by Ms Wu did not meet the high threshold required to set aside a consent order. The principles of finality in litigation and the sanctity of court orders were paramount.

The High Court dismissed the appeal, upholding the decision of the Federal Circuit and Family Court.

Orders