Ye v Chen

Case [2022] NSWCA 219


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Ye v Chen [2022] NSWCA 219
Hearing dates: 13 September 2022
Date of orders: 03 November 2022
Decision date: 03 November 2022
Before: Macfarlan JA at [1];
Meagher JA at [43];
Mitchelmore JA at [44]
Decision:

Application for leave to appeal dismissed with costs.

Catchwords:

CONTRACTS — construction of handwritten document promising refund of deposit paid by respondent to applicant’s company for migration agency services — whether applicant signed document in personal capacity or as company director — presumption of personal liability arising from unqualified signature not rebutted by evidence of contrary intention — consideration provided by respondent in the form of forbearance to sue — conclusion supported by surrounding circumstances including repeated demands on applicant for details of visa application

Cases Cited:

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549; [1987] HCA 15

Ariadne Steamship Co Ltd v James McKelvie & Co [1922] 1 KB 518

Bofinger v Kingsway Group Ltd (2009) 239 CLR 269; [2009] HCA 44

Chan v Cresdon Pty Ltd (1989) 168 CLR 242; [1989] HCA 63

Cherry v Steel-Parke (2017) 96 NSWLR 548; [2017] NSWCA 295

Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24

Edlin v Williams [1998] QCA 439; [2000] ANZ Conv R 43

Gadd v Houghton (1876) 1 Ex D 357

HDI Global Specialty SE v Wonkana No 3 Pty Ltd (2020) 104 NSWLR 634; [2020] NSWCA 296

Lester v Balfour Williamson Merchant Shippers Ltd [1953] 2 QB 168

Parker v Winlow (1857) 7 El & Bl 942

Texts Cited:

Peter G Watts, Bowstead & Reynolds on Agency (22nd ed, 2021, Thomson Reuters)

G E Dal Pont, Law of Agency (4th ed, 2020, LexisNexis Butterworths)

Category:Principal judgment
Parties: Rebecca Haria Ye (Applicant)
Yu Chen (Respondent)
Representation:

Counsel:
T Alexis SC / A Cheema (Applicant)
J L Harrison (Respondent)

Solicitors:
Auburn Lawyers (Applicant)
Prudentia Legal (Respondent)
File Number(s): 2022/151232
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Common Law
Citation:

[2022] NSWSC 494

Date of Decision:
27 April 2022
Before:
Adamson J
File Number(s):
2021/6370

HEADNOTE

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

In 2017 the respondent, Ms Chen, decided that she would like to migrate to Australia from Canada. On the recommendation of her cousin she contacted the appellant, Ms Ye, in Australia to obtain migration agency services. On 27 April 2017 Ms Chen entered into the Australian Visa Application Service Agreement (“the Service Agreement”) with Ucer Investment and Resources Management Pty Ltd (“the Company”), a company associated with Ms Ye. The document was written in both Mandarin Chinese and English. It provided for the Company to apply for an Australian visa for Ms Chen and for Ms Chen to pay a deposit of USD $50,000 and the…

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AGLC
Ye v Chen [2022] NSWCA 219
Case
[2022] NSWCA 219
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between Ye (the applicant) and Chen (the respondent) arising from a handwritten document promising a refund of a deposit paid by the respondent to the applicant's company for migration agency services. The Court of Appeal of the Supreme Court of New South Wales was required to determine whether the applicant had signed the document in his personal capacity or solely as a director of the company.

The central legal issues before the court were: first, whether the applicant's unqualified signature on the document rendered him personally liable for the refund, and second, whether the respondent had provided sufficient consideration to support the promise of a refund. The court also considered whether the surrounding circumstances, including the applicant's repeated failure to provide details of the visa application, supported the conclusion that the applicant intended to be personally bound.

The court held that a presumption of personal liability arises from an unqualified signature on a document, and this presumption had not been rebutted by evidence of a contrary intention. The court found that the respondent had provided consideration by forbearing to sue the applicant and his company. This conclusion was supported by the surrounding circumstances, which indicated that the applicant was repeatedly pressed for information regarding the visa application, suggesting a personal engagement with the respondent's concerns.

The application for leave to appeal was dismissed with costs.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

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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