Xie v Qin

[2024] NSWCA 26

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Xie v Qin [2024] NSWCA 26

Hearing dates:

28 November 2023

Decision date:

14 February 2024

Before:

Meagher JA at [1];
White JA at [2];
Basten AJA at [67]

Decision:

Appeal dismissed with costs

Catchwords:

APPEALS – point not taken below – pleadings –case dismissed on ground that whilst the respondent misappropriated moneys to be applied at her discretion for a unit trust or the fifth appellant, the fifth appellant had made no claim to the moneys – where appellants seek to amend statement of claim on appeal to bring claim by both the first and fifth appellants – whether case not fought at trial may be propounded on appeal – possibility that additional evidence might have been called at trial and different findings made if new issue had been raised at trial

Cases Cited:

Australasian Conference Association Ltd v Mainline Constructions Pty Ltd (in liq) (1978) 141 CLR 335; [1978] HCA 45

Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567

Bell v Lever Brothers Ltd [1932] AC 161

Byrnes v Kendle (2011) 243 CLR 253; [2011] HCA 26

Commissioner of Stamp Duties (Qld) v Jolliffe (1920) 28 CLR 178; [1920] HCA 45

Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437

National Australia Bank Ltd v Nobile (1988) 100 ALR 227

Pringle & Ors v Everingham [2006] NSWCA 195

Re Australian Elizabethan Theatre Trust (1991) 30 FCR 491

Sir Moses Montefiore Jewish Home v Howell and Co (No 7) Pty Ltd [1984] 2 NSWLR 406

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35

Category:

Principal judgment

Parties:

Teng Xie (First Appellant)
Yinjun Qian (Second Appellant)
Xianhua Shen (Third Appellant)
Ying Zhang (Fourth Appellant)
Taylor International Investment Pty Ltd (Fifth Appellant)
Aiyi Qin (Respondent)

Representation:

Counsel:
M Ashhurst SC with A Norrie (Appellants)
E C Muston SC with S A Lees (Respondent)

Solicitors:
Revolance Legal (Appellants)
Ren Zhou Lawyers (Respondent)

File Number(s):

2023/125615

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2023] NSWSC 254

Date of Decision:

22 March 2023

Before:

Kunc J

File Number(s):

2020/141132

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellants challenged a decision of the Equity Division of the Supreme Court to dismiss their claim to recover moneys alleged to have been misappropriated by the respondent.

The respondent and her husband had previously conducted business exporting Australian fruit to China and had had dealings with a Mr Jiang. At the instigation of Mr Jiang, the parties engaged in a venture to grow grapes in Victoria for export to China. This venture was managed in Australia by the respondent.

To facilitate the venture, a company (Taylor International Investment Pty Ltd (“TII”)) and a unit trust (Taylor Investment Unit Trust) were established. The respondent was the sole director of TII and trustee of the unit trust. The first to fourth appellants…