Wu v Ling

Case [2016] NSWCA 322

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Wu v Ling [2016] NSWCA 322
Hearing dates:28 September 2016
Date of orders: 24 November 2016
Decision date: 24 November 2016
Before: Leeming JA at [1]
Payne JA at [21]
Bergin CJ in Eq at [22]
Decision:

Appeal dismissed. Cross-appeal allowed.

Catchwords:

EQUITY – where appellant being defrauded by a third party – where respondent believed appellant being defrauded – where appellant warned by respondent – whether appellant (borrower) was at a special disadvantage in her dealings with the respondent (lender) – whether interest rates on short term loans unconscionable.

  PENALTY – whether default interest rate a penalty.
Legislation Cited: Contracts Review Act 1980
Cases Cited: Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51; [2003] HCA 18
Baker v Monk (1864) 33 Beav. 419
Bay Bon Investments Pty Ltd v Selvarajah [2008] NSWSC 1251
Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81
Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66
Clark v Malpas (1862) 31 Beav. 80
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14
Earl of Aylesford v Morris (1873) LR 8 Ch App 484
Earl of Chesterfield v Janssen (1751) 2 Ves Sen 125
Fry v Lane (1889) 40 Ch D 312
Hart v O’Connor [1985] AC 1000
Jenyns v Public Curator (Q) (1953) 90 CLR 113; [1953] HCA 2
Johnson v Smith [2010] NSWCA 306
Kakavas v Crown Melbourne Limited (2013) 250 CLR 392; [2013] HCA 25
Ling v Pan Pac Investments Pty Ltd; Ling v Wu [2015] NSWSC 850
Ling v Pan Pac Investments Pty Ltd; Ling v Wu (No 3) [2015] NSWSC 1550
Longmate v Ledger (1860) 2 Giff. 157
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61
Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50
Paciocco v Australia & New Zealand Banking Group Ltd (2016) 90 ALJR 835; [2016] HCA 28
PT Ltd v Spuds Surf Chatswood Pty Ltd [2013] NSWCA 446
Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57
Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389
Turner v Windever [2005] NSWCA 73
Category:Principal judgment
Parties: Yan Wu (appellant/cross respondent)
Albert Ling (respondent/cross appellant)
Representation:

Counsel:
SA Wells (appellant/cross respondent)
WG Muddle SC/A Djurdjevic (respondent/cross appellant)

  Solicitors:
Breene and Breene (appellant/cross respondent)
Solomon Tudehope (respondent/cross appellant)
File Number(s):2015/374448
Publication restriction:Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of NSW
Jurisdiction:
Common Law
Citation:
[2015] NSWSC 850
[2015] NSWSC 1550
Date of Decision:
30 June 2015
20 October 2015
Before:
Button J
File Number(s):
2012/292029; 2013/224583

Decisions under appeal

Judgment

  1. LEEMING JA: I have had the considerable advantage of reading the judgment of Bergin CJ in Eq in draft. I agree with her Honour that Ms Wu’s appeal should be dismissed and Mr…

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Details
AGLC
Wu v Ling [2016] NSWCA 322
Case
[2016] NSWCA 322
Decision Date

CaseChat Overview and Summary

The appellant, Ms. Wu, sought to appeal a decision of the primary judge concerning a series of short-term loans she obtained from the respondent, Mr. Ling. Ms. Wu alleged that she was being defrauded by a third party and that Mr. Ling was aware of this, having warned her about the situation. The central dispute revolved around whether Ms. Wu was at a special disadvantage in her dealings with Mr. Ling and whether the interest rates charged on the loans were unconscionable. Additionally, the court considered whether the default interest rate constituted a penalty.

The legal issues before the Court of Appeal were whether the primary judge erred in finding that Ms. Wu was not under a special disadvantage when entering into the loan agreements with Mr. Ling, and whether the interest rates charged were unconscionable. The court also had to determine if the default interest rate was a penalty at common law.

The Court of Appeal, comprising Leeming and Payne JJA and Bergin CJ in Eq, dismissed Ms. Wu's appeal. However, the court allowed Mr. Ling's cross-appeal. The reasoning for these outcomes, as detailed in the judgment, involved a careful consideration of the principles of unconscionable conduct and penalties. The court applied established legal principles to assess the circumstances of the loan agreements and the conduct of the parties.

Ultimately, the appeal by Ms. Wu was dismissed, and Mr. Ling's cross-appeal was allowed.

Orders

Orders of the court

Appeal dismissed. Cross-appeal allowed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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