Yao v Fang - [2025] QCA 65

[2025] QCA 65

COURT OF APPEAL

BOND JA

Appeal No 1400 of 2025
SC No 13370 of 2022

WENLIANG YAO First Appellant/First Respondent
(ALSO KNOWN AS
WILLIAM YAO)

LIANRU ZHAO Second Appellant/Second Respondent

NEW AUS GROUP PTY LTD Third Appellant/Third Respondent
ACN 165 555 733

W HOLDING GROUP PTY LTD Fourth Appellant/Fourth Respondent
ACN 619 024 341

BRISBANE VALLEY INVESTMENTS Fifth Appellant/Fifth Respondent
PTY LTD
ACN 623 094 306 (BOTH IN ITS OWN
RIGHT AND IN ITS CAPACITY AS
TRUSTEE FOR THE BRISBANE
VALLEY INVESTMENTS TRUST)

LINA FANG First Respondent/First Applicant

NAXI AGRICULTURE Second Respondent/Second Applicant
INVESTMENT PTY LTD
ACN 634 072 209 (AS TRUSTEE
FOR THE NAXI AGRICULTURE
INVESTMENT TRUST)

NAXI @ TROUGHTON PTY LTD Third Respondent/Third Applicant
ACN 634 070 698 (AS TRUSTEE
FOR THE NAXI PROPERTY
INVESTMENT TRUST)

NAXI (CHINA) PTY LTD Fourth Respondent/Fourth Applicant
ACN 616 666 749

BRISBANE

WEDNESDAY, 7 MAY 2025

JUDGMENT

BOND JA: A proceeding which is pending in the trial division is being managed on the commercial list by the primary judge. The proceeding commenced on 31 October 2022 and was placed on the commercial list on 19 May 2023. On 22 December 2023 the matter was listed for a trial to commence on 28 October 2024.

On 24 September 2024, the first, third, fourth, fifth and sixth defendants applied to have the trial adjourned. On 30 September 2024 their application succeeded. The proceeding is currently listed for a six-week trial before the primary judge, commencing on 21 July 2025.

Her Honour described the nature of the proceeding in these terms.

“The statement of claim reveals a complicated set of arrangements and money transfers. In essence the plaintiffs allege that monies belonging to Ms Fang were transferred to Australia and used to purchase properties in Australia and that the plaintiffs have claims against the defendants as a consequence. Such claims include claims for monies had and received, damages for deceit, equitable compensation, for an account, for monies held on trust, for damages pursuant to the Australian Consumer Law, for damages for breach of fiduciary duty and so on. The amounts involved exceed about $80m.”[1]
[1] Fang v Yao [2025] QSC 46 at [9].

In Fang v Yao [2025] QSC 46, published on 21 March 2025, the primary judge disposed of an application by the first, third, fourth, fifth and sixth defendants for leave to amend their defence in the proceeding. Leave was given for some amendments but refused in relation to other amendments which required leave being given to withdraw admissions.

The most important issue in contest before the primary Judge seemed to be proposed amendments which would –

(a)withdraw admissions previously made that the first plaintiff, Ms Fang, was in fact the owner of the funds that the plaintiffs sought to recover in the proceeding; and
(b)in lieu thereof plead a denial with an associated positive case to the contrary.

The positive case proposed by the first, third, fourth, fifth and sixth defendants had these elements:

(a)The funds…

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.

Continue reading Yao v Fang

Details

AGLC: Yao v Fang [2025] QCA 65
Case: [2025] QCA 65
Decision Date: 7 MAY 2025

CaseChat Overview and Summary

In the matter of Yao v Fang, the Court of Appeal heard an expedited appeal regarding a proposed amendment to the defence in a proceeding that had been commenced in the trial division. The proceeding, which involves complex arrangements and money transfers, includes claims for various forms of relief in excess of $80 million. The appeal was brought by the first, third, fourth, fifth and sixth defendants against the first to fourth plaintiffs, who are the respondents to the appeal. The appeal concerns the primary judge's decision to deny the appellants leave to amend their defence to withdraw certain admissions and plead a denial with an associated positive case. The appellants sought to reverse the primary judge’s decision and to be permitted to advance their proposed positive case against the plaintiff's ability to recover the funds.

The Court of Appeal considered an application for security for costs in relation to the expedited appeal, which was filed by the respondents. The appellants did not dispute the amount of security sought but argued that ordering security would necessarily stifle the appeal and that they had a strong prospect of success. The Court found that the appellants were impecunious and that ordering security would not necessarily stifle the appeal, but it could not form a view on the prospects of success on appeal due to a lack of relevant evidence. The Court concluded that the interests of justice were best served by making an order for security for costs in the amount sought by the respondents.

The final orders of the Court of Appeal included making an order for security for costs in the amount of $49,000 and providing further directions regarding the form of the order. The Court noted that the appeal would be contested on the basis of the evidence and material before the primary judge at the time of the decision, applying the deferential standard of appellate review.

Orders