Ying Mui Pty Ltd v Hoh (No 3) - [2017] VSC 29

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2012 06147

YING MUI PTY LTD (ACN 009 992 449) AND OTHERS	First Plaintiff/First Defendant by Counterclaim
AMORE CORPORATION PTY LTD (ACN 097 964 175)	Second Plaintiff/Second Defendant by Counterclaim
KIANG PO HOH (ALSO KNOWN AS GEORGE HOH)	Third Plaintiff/Third Defendant by Counterclaim
HAN KEYET HOH	Fourth Plaintiff/Fourth Defendant by Counterclaim
and
SHARIKAT YING MUI SDN BHD	Fifth Defendant by Counterclaim
v
FRANK KIANG NGAN HOH	First Defendant/First Plaintiff by Counterclaim
POOI YOKE LIM HOH	Second Defendant/Second Plaintiff by Counterclaim
LYNN YOOK LIEN HOH	Third Defendant/Third Plaintiff by Counterclaim
IAN HAN LOK HOH	Fourth Defendant/Fourth Plaintiff by Counterclaim
LOKIT INVESTMENTS PTY LTD (ACN 006 855 741)	Fifth Defendant
LUMARKYE PTY LTD (ACN 131 575 785)	Sixth Defendant
FROSTHOLLOW PTY LTD (ACN 151 816 401)	Seventh Defendant/Sixth Defendant by Counterclaim
OLREY PTY LTD (ACN 140 494 319)	Eighth Defendant/Seventh Defendant by Counterclaim

---

JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	22–25, 29–31 AUGUST; 1, 5–7 SEPTEMBER; 24–28 OCTOBER 2016
DATE OF JUDGMENT:	8 FEBRUARY 2017
CASE MAY BE CITED AS:	YING MUI & ORS v FRANK KIANG NGAN HOH & ORS (No 3)
MEDIUM NEUTRAL CITATION:	[2017] VSC 29	1^st Revision: 30 May 2017

---

CONTRACT — Principles for inferring a contract from conduct – Conduct relied upon not capable of giving rise to a contract — No intention to enter into any agreement enforceable at law as a binding contract.

CONSTRUCTIVE TRUST — Muschinski v Dodds (1985) 160 CLR 583 constructive trust considered — Common intention constructive trust considered — Onus of proof — Onus not discharged by party asserting constructive trust.

CORPORATIONS — Duties of directors to company — Content of conflict of interest rule and the profit rule — Application to a corporate trustee holding trust property — Evidentiary value of company financial statements — Corporations Act 2001 (Cth) ss 295, 296, 297, 1308 and 1309 — ASIC v Hellicar 247 CLR 345, 381 discussed and applied.

EQUITY — Fiduciaries — Director of corporate trustee arranged for sale of assets of the trust — Motivated in significant part by personal advantage to himself — No loss or damage sustained to trust — Whether breach of fiduciary duties — Content of fiduciary duties of conflict of interest and acting for personal interest considered — Liability of recipient company for knowing receipt of property in breach of trust — First limb of Barnes v Addy (1874) LR 9 Ch App 244, 251–252 considered and applied — Persons considered to be the ‘mind’ of the recipient company.

EVIDENCE — Evidentiary Value of the Financial Statements — Assessed in context of Corporations Act 2001 (Cth) — Requirements on companies and their directors in relation to the accuracy of financial reports and statements — ASIC v Hellicar 247 CLR 345, 381 applied.

PRACTICE AND PROCEDURE — Very large number of issues to be determined — Trial of first tranche questions determined in a…

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.

Keep reading for free

Create a free CaseChat account to read Ying Mui Pty Ltd v Hoh (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSC 29
Decision Date: 8 FEBRUARY 2017

CaseChat Overview and Summary

Ying Mui Pty Ltd brought proceedings against Frank Kiang Ngan Hoh and others, seeking relief in contract, constructive trust, equity, and on various other grounds. The proceedings involved complex financial transactions and the sale of trust assets by a corporate trustee, with allegations of breach of fiduciary duties and other breaches of duty by the directors. The Court of Appeal was asked to consider whether the conduct of the parties gave rise to a contract, whether a constructive trust arose, and whether there were breaches of fiduciary duties by the directors of the corporate trustee.

The Court of Appeal considered several issues, including whether the conduct of the parties gave rise to a binding contract, whether a constructive trust arose over the trust assets, and whether the directors of the corporate trustee breached their fiduciary duties by arranging the sale of the trust assets. The Court also examined the content of the fiduciary duties of conflict of interest and acting for personal interest, and the liability of the recipient company for knowing receipt of property in breach of trust.

The Court found that the conduct of the parties did not give rise to a binding contract. The Court also found that the onus of proof had not been discharged by the party asserting the constructive trust. The Court considered the content of the fiduciary duties of conflict of interest and acting for personal interest, and held that there was no breach of those duties. The Court also found that no resulting trust arose in favour of the family company.

The Court of Appeal ordered that the appeal be dismissed, with costs.

Orders